Appeals Court Again Restricts OSHA Violation Window

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By Bruce Rolfsen

OSHA can’t cite a refinery owned by Delek Refining Ltd. for alleged violations that took place more than six months before issuing the citations, a federal appeals court ruled Dec. 29 ( Delek Refining Ltd v. OSHRC, 5th Cir., No. 15-60443, 12/29/16 ).

Like an earlier appeals court decision involving alleged recordkeeping violations, Volks II, the three-judge panel from the U.S. Court of Appeals for the Fifth Circuit unanimously found that the Occupational Safety and Health Administration couldn’t cite an employer for violations that were several years old.

“The Fifth Circuit decision is a significant victory for the regulated industries,” Delek’s attorney, Mark Dreux of Arent Fox LLP’s Washington office, told Bloomberg BNA Dec. 29. “It is significant because it restricts OSHA’s ability to allege a continuing violation.”

The decision is also important because two appeals courts have now reached the same conclusion supporting the six-month limit, Dreux said.

“The Volks decision provided the analytical backbone for the Delek decision,” Arthur Sapper of Ogletree Deakins PC, who represented the winning clients in Volks II, told Bloomberg BNA Dec. 29.

Volks told courts to look for the “occurrence” that was alleged to be the violation, and see whether it is more than six months old, Sapper said. If it was more than six months told, the statute of limitations has run out, regardless of any ‘continuing violation’ claim, Sapper said ( AKM LLC v. Sec’y of Labor , D.C. Cir., No. 11-1106, 4/6/12 ).

‘Promptly’, ‘Timely’

In their Delek opinion, the Fifth Circuit judges criticized the Department of Labor’s reasoning for upholding the citations.

“Under the Secretary’s theory, OSHA would have authority to penalize an employer for failing to ‘promptly’ or ‘timely’ address PHA [process hazard analysis] or audit recommendations or findings that arose twenty or more years prior—which is exactly what would occur in this case were we to accept the Secretary’s position,” the decision said.

The new decision involves a 2008 inspection of Delek Refining Co.’s plant in Tyler, Texas. Delek appealed the citations that resulted from the inspection to the Occupational Safety and Health Review Commission.

In 2015, by a 2-1 vote, the review commission rejected Delek’s position that the company couldn’t be cited for alleged process safety management violations that were more than six months old.

The U.S. Court of Appeals for the District of Columbia Circuit in a 2012 decision, Volks II, said OSHA couldn’t cite a building contractor for recordkeeping violations that occurred years before the inspections.

OSHA had argued in both cases that the employer was obligated to correct the problems when the first occurred and the violations would continue until abated.

The Fifth Circuit judges decided that the reasoning behind Volks II applied to the Delek case. The six-month statute of limitation set in federal law applies to Delek, the judges said.

Mark Dreux of Arent Fox LLP’s Washington, D.C., office represented Delek.

Scott Glabman of the Department of Labor’s Office of the Solicitor in Washington, D.C., represented the government.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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