Federal Appeals Court Rejects OSHA’s Attempt to Evade Statute of Limitations

The decision is a significant victory for employers and marks the second time that a federal appeals court has rejected OSHA’s attempt to allege the existence of a “continuing violation” that suspends the six-month statute of limitations contained in the OSH Act. 

“The Delek decision is hugely important because it is a clear repudiation of OSHA’s long-standing claim that the Volks decision applied only to record-keeping violations,” said Arent Fox partner Mark S. Dreux, who argued the case on behalf of Delek before the Fifth Circuit and led a team from Arent Fox that included partner James H. Hulme and associate Alexandra M. Romero. “As such, the Fifth Circuit’s opinion in Delek signals that courts will continue to place the burden on OSHA to justify citations issued outside of the six-month limitations period, and heralds a growing consensus that exclusions from the OSH Act’s statute of limitations should be strictly limited.”

In 2008, OSHA issued citations to Delek under its process management safety standard for the alleged failure to resolve recommendations from process hazard analyses and audits that were conducted between 1994 and 2005 — before Delek acquired the facility. The PSM standard requires employers to update PHAs every five years, conduct compliance audits every three years, and address PHA and audit findings “promptly” after they have been completed. The OSH Act states that no citations may be issued more than six months following “the occurrence of any violation.”

OSHA argued that the alleged failures to address the PHA and audit findings were “continuing violations” that would not trigger the OSH Act’s statute of limitations until they were abated. But the Fifth Circuit disagreed, extending the DC Circuit’s reasoning in Volks Constructors v. Secretary of Labor in which the court rejected OSHA’s claim that violations of its record-keeping regulations were continuing violations that prohibited the statute of limitations from expiring until they were corrected.

In reaching its decision, the Fifth Circuit panel stated that OSHA’s position, if adopted, would permit OSHA to issue citations in perpetuity after the occurrence of a safety violation — an outcome that would be inconsistent “with the basic purposes of a statutory limitations period” and “utterly repugnant to the genius of our laws.”

Instead the Fifth Circuit ruled that a strict interpretation of OSHA’s six-month statute of limitations in this context would “provide security and stability,” and prevent OSHA from instituting enforcement actions under the PSM provisions at issue long after the relevant witnesses’ memories had faded and the available evidence had gone stale. Critically, the Fifth Circuit left open the possibility that a continuing violation that tolls the statute of limitations could exist where an employer fails to correct a persistent hazard to employee health or safety.

Mr. Dreux, who is nationally recognized for his work representing employers and trade associations in all aspects of the OSH Act, leads Arent Fox’s OSHA practice. The OSHA team advises employers and trade associations in a wide range of industries, including chemical and petrochemical, refining, electric utility, manufacturing, construction, baking and food services. The group routinely appears before federal and state courts and agencies on OSHA enforcement matters and related civil and criminal litigation.