The Fifth Circuit recently vacated Occupational Safety and Health Administration (OSHA) citations against a Texas oil refinery on the grounds that the violations were beyond the six-month statute of limitation period. Following a four month inspection, OSHA had cited Delek Refining, Ltd., for violations of a regulation governing Process Safety Management of Highly Hazardous Chemicals (PSM).1 The court of appeals rejected the Secretary of Labor’s argument that the violations were continuing and therefore not barred by the statute of limitations.
In 2008, OSHA cited Delek for alleged failure to resolve issues identified in process hazard analyses that occurred in 1994, 1998, 1999, 2004 and 2005, and for alleged failure to address the findings of a 2005 compliance audit. The specific language of the regulation at issue requires employers to “establish a system to promptly address the [process hazard analysis] teams’ findings and recommendations,” to “assure that the recommendations are resolved in a timely manner,” and to “promptly determine and document an appropriate response to each of the findings of the compliance audit . . . .”2
Delek challenged the citations under 29 U.S.C. § 658, which provides for a six-month limitation period “following the occurrence of any violation.”3 Delek argued that the violations (failure to promptly address and resolve the findings of process hazard analyses, and failure to promptly determine a response to the audit) all occurred more than six months before the citations were issued. The Secretary argued that Delek had committed “continuing violations” because the company had still not addressed the findings of the process hazard analyses and the compliance audit.
The Fifth Circuit sided with Delek in holding that a failure to timely address findings was an “occurrence” that triggered the six-month limitations period. The court followed the D.C. Circuit’s logic in a similar case where the violation was a failure to make, keep, and preserve records of workplace injuries within a set timeframe.4 The D.C. Circuit reasoned that the “occurrence” language in the statute referred to a discrete antecedent event—something that happened or came to pass in the past. Applying the same reasoning, the Fifth Circuit found that Delek’s failures to promptly address findings were single events capable of starting the statute of limitations clock. The court also noted that following the Secretary’s logic would render the statute of limitations meaningless.
Distinguishing Delek from “Continuing Violation” Decisions
The court’s application of the six-month statute of limitations is consistent with other “continuing violation” decisions. Tolling the statute of limitations under the “continuing violation” doctrine is appropriate in two circumstances. The first is when the conduct only becomes a violation after it is repeated within the limitation period. This applies in situations where the cumulative nature of the conduct causes it to become a violation, such as a hostile work environment. The second application at issue here is when the law imposes a continuing obligation to act or refrain from acting. By continually failing to act or refrain from acting, a party will not trigger the statute of limitations until the continuing violative conduct has ceased.5
The problem with the Secretary’s attempt to fit Delek’s violation into this application of the continuing violation doctrine was that the PSM regulation itself does not impose a continuing obligation on employers to address problematic findings. Rather, the regulation requires employers to promptly complete discrete actions in response to the results of a process hazard analysis or audit, i.e., “establish a system to promptly address” findings and recommendations, “assure that the recommendations are resolved in a timely manner,” and “promptly determine and document an appropriate response to each of the findings of the compliance audit.”6 If an employer fails to promptly complete one of these discrete actions, OSHA has only six months to issue a citation. While “promptly” and “timely” leave some room for discretion, the period is not indefinite and the Secretary has taken the position that “timely” means “at most one to two years.”7
Not all laws, however, impose only discrete obligations. For example, courts have found the Resource Conservation and Recovery Act imposes ongoing obligations to manage hazardous waste.8 Under the “continuing violation” doctrine, courts agree that failure to properly manage hazardous waste tolls the statute of limitations.9
Employers May Not Be Off the Hook After Six Months – DOJ and DOL Partner to Take Firmer Stance on Worker Endangerment
While OSHA may have to act quickly or hold its peace, a new partnership between the Department of Justice (DOJ) and the Department of Labor (DOL) may mean harsher enforcement by the DOJ for worker endangerment violations.10 In December 2015, the DOJ and DOL entered a memorandum of understanding to increase criminal prosecutions of employers who violate worker safety statutes including the Occupational Safety and Health Act.11 A year since its inception, Assistant Attorney General John Cruden reports the partnership has resulted in a targeted focus on worker endangerment: each new case referral is reviewed for potential worker safety concerns and there is increased information sharing across agencies to accelerate case development.12 The genesis of the new partnership is the government’s perception that criminal penalties in worker safety laws are inadequate compared to the human injury caused by these violations, which makes the penalties a “cost of doing business” as opposed to a deterrent.13 The Delek decision may serve to reinforce that perception and further encourage the criminalization of worker safety violations. In the long run, the strong interpretation of the six-month statute of limitations in the Fifth Circuit’s decision may offer employers who violate worker safety laws little comfort.