On April 23, 2015, the Occupational Safety and Health Review Commission (OSHRC or the Commission) ruled that process safety violations are continuing violations and, therefore, are not subject to the same six-month statute of limitations applied to discrete actions, such as recordkeeping violations.1 Consequently, the Commission limited the holding of a prior case, AKM, LLC v. OSHRC, where the U.S. Court of Appeals for the District of Columbia ruled that an injury-recording citation was time-barred where the citation was issued “at least six months after the last unrecorded injury occurred.”2 In AKM, the appellate court rejected the Secretary of Labor’s argument that the violation was a “continuing violation,” instead holding that it was a “discrete record-making violation,” which triggers the statute of limitations.3 The AKM court, however, remarked that “where . . . a company continues to subject its employees to unsafe machines, . . . OSHA may be able to toll the statute of limitations on a continuing violations theory since the dangers created by the violations persist.”4 It was this reasoning that the Commission inSecretary of Labor v. Delek Refining Ltd. relied upon to determine that process safety violations are continuing violations.
Regarding the relevant factual background of the opinion, Delek Refining had purchased a refinery in April 2005 and inherited findings and recommendations from several Process Hazards Analyses (PHAs) and a compliance audit conducted by the refinery’s prior owner. OSHA cited Delek for failing to address these findings and recommendations (under 29 C.F.R. § 1910.119(e)(5) and 1910.119(o)(4)). Delek argued that the OSHA six-month statute of limitations made the citation items time-barred because: (1) these reviews had been conducted years before Delek had purchased the refinery; (2) the citations were akin to the record-keeping violations in AKM; and (3) the findings and recommendations were more than six months old at the time of the citations. However, the Commission rejected this reasoning. Although the Commission agreed that the provisions at issue contained some documentation requirements, the Commission found that the provisions required action beyond “mere recordkeeping—the employer must take corrective actions as well.”5 According to the Commission:
[T]he violations alleged here were not one-time failures to perform a task at a specified time. Rather, because the corrective actions required by the cited provisions directly address ‘preventing or minimizing the consequences of catastrophic [chemical] releases,’ and because the failure to take those actions means the dangers described in the PHAs and compliance audits at issue persisted, each day that passed without the recommendations being addressed meant the violative conditions continued, and could be cited by OSHA.6
(internal citations omitted) (emphasis added). For this reason, the Commission concluded that the citations were not time-barred and affirmed the PHA and compliance audit violations.
Delek is important to employers for a few reasons. Initially, Employers should ensure that recommendations from safety audits, however old, are closed out in a timely fashion because the six-month statute of limitations should not apply to violations based on these closed audits. Furthermore, where an employer is acquiring a Process Safety Management (PSM) facility, that employer should complete a comprehensive due diligence inquiry to ensure that the facility’s PSM program is compliant—after all, per Delek, the employer would be assuming the facility’s liability for pre-acquisition PSM violations.