The District of Columbia Circuit Court of Appeals clarified the meaning of the OSH Act’s Statute of Limitations (SOL) recently in AKM LLC v. OSHRC, No. 11-1106, ___ F.3d ___ (DC Cir. 2012). In AKM, an employer was cited and fined for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was, as the employer argued, at least six months after the recorded injury occurred. The OSH Act’s SOL provides that citations must be issued within six months following the occurrence of any violation. 29 U.S.C. § 658(c). Employing a plain reading of the statute, the Court of Appeals held that because the citations were issued outside of the six-month SOL, they were untimely and must be vacated.

The employer had been cited for violating three recordkeeping regulations: (1) 29 C.F.R. § 1904.29(b)(3), which requires employers to prepare an incident report and a separate injury log “within seven (7) calendar days of receiving information that a recordable injury or illness has occurred;” (2) 29 C.F.R. § 1904.32(a)(2), which requires the employer to maintain a year-end summary report of all recordable injuries during the calendar year; and (3) 29 C.F.R. § 1904.32(b)(3), which requires that a “company executive” certify the year-end summary. The employer was alleged to have improperly recorded injuries which took place between January 11, 2002 and April 22, 2006 — these dates were a maximum of 54 months prior to the issuance of the citations and a minimum of six months and 10 days beforehand. The regulations also contain a document retention requirement, by which employers must “save” all of these documents for five years from the end of the calendar year the documents cover. 29 C.F.R. § 1904.33(a). Notably, the employer was not cited for violating the document retention requirement.

The US Secretary of Labor, nonetheless, had argued before the Occupational Safety and Health Review Commission (OSHRC) that the employer had committed “continuing violations” that prevented the SOL from expiring until the end of the five-year document retention period. According to the Secretary, all of the employer’s violations were still occurring on May 10, 2006, when the inspection began. The citations were issued within six months of that date, so the Secretary argued that they were timely. The Secretary asserted that the violations continued every day that a record-keeping obligation remained unsatisfied. So in the Secretary’s thinking, because work injuries must be recorded within seven calendar days, and those records retained for five years, the true statute of limitations for record-making violations is the length of OSHA’s record retention period plus the limitations period Congress imposed – which in this case was five years plus the six-month SOL. By a 2 to 1 vote, and over the strong dissent of the minority Commissioner, OSHRC agreed with the Secretary and affirmed the citations.

The employer appealed OSHRC’s findings to the Court of Appeals, which examined whether the OSH Act’s recordkeeping requirement, in conjunction with the five-year document retention period, permits OSHA to extend the Act’s six-month statute of limitations. The court began its analysis with a plain reading of the text of the statute, which provides that “no citation may be issued . . . after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). The court found that the word “occurrence” refers to “a discrete antecedent event — something that ‘happened’ or ‘came to pass’ ‘in the past.’” Because all of the violations for which the employer had been cited — failures to make and review records, and every workplace injury which gave rise to those unmet recording obligations were “incidents” and “events” which “occurred” more than six months before the issuance of the citations, there was no “occurrence” within the requisite six months and the citations were invalid. To hold otherwise, the Court of Appeals explained, would permit the Secretary to eviscerate the SOL – allowing her to effectively choose any SOL she wants by simply altering the length of the document retention period.

The Court of Appeals also rejected the Secretary’s argument that record-keeping violations continue every day that an error or omission in documentation exists. Specifically, the court found that the lingering effect of one unlawful act — in this case, failure to appropriately document a workplace injury — is not itself an unlawful act. That is, the failure to right a wrong cannot be a continuing violation which tolls the statute of limitations, for if it were, “the exception would obliterate the rule.” Here, the requirement that a document be retained cannot impose a continuing affirmative duty to correct past failures to properly create the document in the first place.

But the Court of Appeals did recognize the possibility that certain OSH Act violations may constitute continuing violations. Where, for example, a company continues to expose its employees to unsafe machines or continues to send its employees into dangerous situations without proper training, OSHA may be able to toll the statute of limitations on a continuing violations theory because the dangers created by the violations persist in the workplace, providing management with a continuing opportunity to discover and address them.

The AKM decision represents a major departure from OSHRC’s historical interpretation of the OSH Act’s SOL and could impact the measure of timeliness of a range of OSHA citations. There are several document retention requirements in OSHA’s Process Safety Management (PSM) standard, for example, which OSHA has argued toll the OSH Act’s SOL, such as 29 C.F.R. § 1910.119(e)(5), which requires an employer to retain documentation showing that certain findings and conclusions of process hazard analyses (PHAs) have been resolved, and 29 C.F.R. § 1910.119(o)(4), which requires an employer to retain documentation showing that the findings from a compliance audit have been addressed. Until now, OSHA has asserted that violations of these PHA and audit provisions are continuing violations because the improper documentation continues. In fact, during the refining National Emphasis Program, OSHA issued citations alleging violations of these documentation requirements involving errors that occurred ten to twenty years ago. But applying the AKM analysis, the relevant “occurrence” which starts the clock on the SOL would have taken place when the inadequate PHA or audit documentation was created. OSHA would then have only six months from the date of that occurrence to issue a citation for faulty documentation. Application of this analysis to the PSM documentation requirements is currently pending before OSHRC.