Battle Brewing Over “Continuing Violations” Theory?

OSHA has just published a Final Rule restating its interpretation of the “continuing violations” theory. There are now two Circuit Court of Appeals rulings that disagree with this interpretation: AKM LLC dba Volks Contractors v. Secretary of Labor, et al. (Volks) and Delek Refining, Limited v. Occupational Safety and Health Review Commission, et al. (Delek).

On December 29, the U.S. Court of Appeals for the Fifth Circuit issued an opinion in Delek. Delek purchased a Tyler, Texas oil refinery from Crown Central in 2005 and, after the transfer of ownership, the facility was inspected by the Occupational Safety and Health Administration (OSHA) for four months in 2008 (February – May 2008). In August 2008, OSHA cited the refinery for several alleged violations of OSHA’s rules regulating “Process Safety Management of Highly Hazardous Chemicals,” According to the Court of Appeals, these rules are intended to prevent or minimize the consequences of catastrophic releases of toxic, flammable or explosive chemicals. Delek sought the Occupational Safety and Health Review Commission’s (Commission”)review of three citations

One citation alleged a failure to resolve “open findings and recommendations” identified during earlier process hazards analysis conducted in 1994, 1998, 1999, 2004, and 2005, or before Delek took control of the refinery. Another citation faulted Delek for failing to determine and document a response to the findings of a 2005 compliance audit in a timely manner, an audit that also took place before Delek assumed control. The last challenged citation is based on Delek’s failure to inspect a “positive pressurization unit” that is a component of the refinery’s fluid catalytic cracking unit. However, the Commission affirmed these determinations, and Delek filed a petition to review of the Commission’s order with the Fifth Circuit.

Delek challenged the first two citations on the basis that they are barred by the applicable six month statute of limitation set forth in in 29 U.S.C. § 658(c). The Secretary of Labor argued that these violations were “continuing violations” and therefore the statute of limitations did not apply. Agreeing with Delek and the U.S. Court of Appeals for the District of Columbia’s decision in Volks, the Fifth Circuit rejected the Commission’s reliance on a continuing violations theory, concluding that such a theory was inconsistent with the text of Section 658(c), which identifies an “occurrence” as the trigger for the statute of limitations. It noted that Volks left open the possibility that Section 658(c)’s statute of limitations “could be extended by the continuing violations concept” and identified safety violations as a possible candidate for the continuing violations theory. On the other hand, the Fifth Circuit affirmed the Secretary’s interpretation of the application of the OSHA regulatory inspection rules to certain refinery process units.

This decision is noteworthy, not only because the Fifth Circuit is now aligned with the DC Circuit on this important issue, but also because OSHA has published a Final Rule amending its recordkeeping regulations “to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation” See 81 FR 91792 (December 19, 2016). This rule will be effective on January 18, 2017. These revisions are a response to the DC Circuit’s Volks which, as noted above, held that the Occupational Safety and Health Act does not provide authority for the Secretary to impose a continuing recordkeeping obligation on employers.