DOL’s continuing violations theory rejected; OSHA citations barred by limitations period

By Joy Waltemath

By Brandi O. Brown, J.D.

Concluding that 29 U.S.C. §658(c) is clear and, therefore, that the Secretary of Labor’s interpretation was not owed deference, the Fifth Circuit ruled that two citations against an employer for violating process safety management rules were barred by the six month statute of limitations and that a continuing violations theory was inapplicable. However, the court also concluded that the regulations relevant to a third citation were ambiguous and, thus, the Secretary’s interpretation was reasonable and should be given deference. The citations were vacated in part (Delek Refining, Ltd. v. Occupational Safety and Health Review Commission, December 29, 2016, Elrod, J.).

Pre-purchase violations. In 2005, the petitioner took possession of an oil refinery it had purchased in Texas. Three years later, OSHA inspected the refinery and issued a citation for violations of an OSHA regulation that governs “Process Safety Management of Highly Hazardous Chemicals.” Three of those citations were at issue in the petition that made its way to the Fifth Circuit. The first one alleged a failure to resolve open findings and recommendations that were identified during analyses that occurred in 1994, 1998, 1999, 2004, and 2005, all prior to the petitioner purchasing and taking possession of the refinery. The second citation alleged inadequate monitoring and inspection regimes for certain equipment. The third item alleged that the employer failed to determine and document a response to the findings of the 2005 compliance audit in a timely manner. That audit was also conducted before the employer took possession of the refinery.

The Secretary of Labor brought an enforcement action and an ALJ affirmed seven of the violations. The employer appealed six—two were vacated, one was upheld, and the three that are part of this petition were also upheld. Noting that it would defer to the agency’s interpretation of its own statute if the text was ambiguous and the agency’s interpretation reasonable, the court concluded that such deference was due only to one of the three challenged conclusions.

Two citations vacated. First, the appeals court considered the employer’s challenge to the citations related to the process hazard analysis and compliance audits. The employer argued that the 2008 citations were barred by the six month statute of limitations found in 29 U.S.C. §658(c), because the analyses and audits took place in 1994, 1998, 1999, 2004, and 2005. The appeals court agreed, rejecting the continuing violations theory argument made by the Secretary of Labor. The D.C. Circuit, as noted by the employer, had considered and rejected a similar argument in AKM LLC dba Volks Constructors v. Secretary of Labor. In that decision, the sister circuit found the continuing violations theory inconsistent with Section 658(c), which identifies an “occurrence” as the statute of limitations trigger. The D.C. Circuit had explained that an “occurrence” clearly denoted a discrete event that had occurred in the past, a definition that is incompatible with a theory of continuing violations that are ongoing, rather than discrete, past events.

The Fifth Circuit found this reasoning persuasive in the context of the two citations here, which were based on an employer’s failure to “promptly” or “timely” address findings and recommendations that were made. The court explained that to apply a continuing violations theory in a case such as this one “would conflict with the basic purposes of a statutory limitations period.” The Secretary’s proposed reading was, “at best, in tension with” the policies underlying limitations periods and, as “candidly acknowledged” by the Secretary, would authorize citations for unaddressed analyses and recommendations “ad infinitum.” Such a reading, moreover, was at odds with the limitations period in the text of Section 658(c) and would essentially nullify it, rendering it “meaningless in many cases.” Such interpretations are to be avoided, the court averred.

CVT not applicable. However, the court explained that just because the continuing violations theory would not apply in Section 1910.119(e)(5) and (o)(4), which were at issue in this case, did not mean that it might not apply in other contexts, such as “cases involving continuing, unlawful risks to employee health and safety.” The court deliberately declined to decide whether it might apply in those situations. With regard to the violations at issue here, though, the employer had a certain amount of discretion in how it responded. The court noted that subsection (e)(5) directs employers to “address” and “resolve[]” the findings from an analysis and subsection (o)(4) directs employers to determine an appropriate response to audit findings. One way an analysis finding can be “resolved” is when the employer justifiably declines to adopt a recommendation. Similarly, the audit report provision in subsection (o)(4) allows the employer to determine an “appropriate” response. That is quite different from a safety regulation that commands the employer to remedy a hazard or to maintain a workplace free of such hazards. The court vacated the two citations as barred by the statute of limitations.

One citation affirmed. However, the court affirmed the third citation, which was based on the employer’s failure to inspect a certain piece of equipment. The relevant portions of Section 1910.119 were ambiguous and the Secretary’s interpretation was reasonable. Specifically, the Secretary interpreted the equipment piece in question, a positive pressurization unit, to be part of a process of fluid catalytic cracking hat is managed by the petitioner’s employees. Therefore, it was subject to the inspection requirements of 29 C.F.R. §1910.119(j), according to the Secretary’s reasonable interpretation, and to requirements related to establishment and implementation of written procedures. The Secretary’s conclusion that the piece in question was a “control” was also reasonable, the court concluded, and was due deference. Therefore, it upheld the determination that the piece was covered by 29 C.F.R. §1910.119 and affirmed the citation.

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