Delek purchased an oil refinery located in Tyler, Texas from Crown Central and took possession on April 29, 2005. Beginning in February 2008, OSHA conducted a four-month inspection of the refinery and issued a citation on August 18, 2008, finding violations of 29 C.F.R. § 1910.119 and other regulations that are not at issue here. Delek petitions for review of citation Items 4 and 12. Item 4 alleges a failure to resolve open findings and recommendations identified during process hazard analyses that occurred in 1994, 1998, 1999, 2004, and 2005—PRIOR to Delek purchasing and taking possession of the refinery. Item 12 alleges that Delek failed to determine and document a response to the findings of a 2005 compliance audit in a timely manner. As with Item 4, the audit at issue in Item 12 was conducted BEFORE Delek took possession of the refinery. Because we conclude that the citations for Items 4 and 12 are barred by the six-month statute of limitations in 29 U.S.C. § 658(c), we VACATE the citations for those items. Here’s what the court said…
I.
The Secretary of Labor brought an enforcement action against Delek for these and other violations. The administrative law judge affirmed seven violations.
Delek appealed six of the seven violations to the Occupational Safety and Health Review Commission (OSHRC or Commission). The Commission unanimously vacated two violations and upheld a third. In a 2-1 split decision, the Commission also upheld the three remaining violations; Commissioner MacDougall dissented from the
Commission’s decision affirming these three violations. The final three violations, each carrying a penalty of $6,300, are the subject of this appeal.
II.
We review the Commission’s factual findings to determine whether they are supported by substantial evidence in the record considered as a whole. We review the Commission’s legal conclusions to determine whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” We will defer to the agency’s interpretation of its own organic statute only if the text is ambiguous and the agency’s interpretation is reasonable.
Though the ALJ affirmed the citation for Item 4, it did so only after deleting the allegations related “to the PHA team’s findings and recommendations from 1998 and 2005.” The Occupational Safety and Health Act divides administrative actions between the Secretary of Labor and the Occupational Safety and Health Review Commission. The Secretary has the responsibility of promulgating standards through rulemaking and bringing enforcement actions against employers. The Commission adjudicates appeals after an initial hearing before an administrative law judge.
We will consider all the “traditional tools of statutory construction” before concluding that a statute is ambiguous. If we determine that the text is clear, we owe no deference to the agency’s interpretation. If, however, we determine that the text is ambiguous, we will defer to the agency’s reasonable interpretation. Likewise, we will defer to an agency’s reasonable interpretation of its own regulations when the text of the regulation is ambiguous. “In situations in which the meaning of regulatory language is not free from doubt, the reviewing court should give effect to the agency’s interpretation so long as it is reasonable,” and it “sensibly conforms to the purpose and wording of the regulations.” If the regulation is clear, we will not defer.
III.
A. We first consider Delek’s challenge to the citations for Items 4 and 12.
Items 4 and 12 relate to the process hazard analysis (PHA) and compliance audits required by Section 1910.119. That provision requires an employer to update and revalidate a PHA every five years. 29 C.F.R. § 1910.119(e)(6). A PHA requires the full-time labor of five to twelve skilled engineers and managers and generally takes four to six weeks. A PHA must “identify, evaluate, and control the hazards involved in the process.” 29 C.F.R. § 1910.119(e)(1). After a PHA is completed, the employer must, inter alia, “establish a system to promptly address” its findings, assure their timely resolution, and document the manner in which they were resolved.
Similarly, Section 1910.119 requires an employer to complete a compliance audit at least every three years. § 1910.119(o)(1). The compliance audit “verif[ies] that the procedures and practices developed under the standard are adequate and are being followed.” A compliance audit requires the efforts of eight to ten skilled employees and can take up to a week to perform. An employer must create a report after the audit and “promptly determine and document an appropriate response to each of the findings of the compliance audit, and document that deficiencies have been corrected.” § 1910.119(o)(3), (4). The employer must retain the records from its two most recent compliance audits. Id. § 1910.119(o)(5).
Delek argues that the citations for Items 4 and 12 are barred by the statute of limitations in 29 U.S.C. § 658(c). That section provides that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). According to Delek, because the PHAs and the audit at the root of Items 4 and 12 took place in 1994, 1998, 1999, 2004, and 2005, the Secretary’s 2008 citations are outside the six-month statute of limitations.
NOTE: Delek also argues that the citations for Items 4 and 12 must be vacated because the violations underlying those Items were committed by Crown Central. According to Delek, Section 1910.119 does not authorize successor liability. Delek further argues that, even if Section 1910.119 does impose successor liability, the citations for Items 4 and 12 must still be vacated because the Commission did not undertake a successor liability analysis. By contrast, the Secretary contends that the successor liability doctrine is not implicated because Delek was cited for its own failure to resolve open PHA and audit findings after it purchased the plant from Crown Central. The Secretary also argues that Section 1910.119’s mandate is focused on the “process,” rather than a particular employer, and so Section 1910.119’s requirements survive a change of ownership. Finally, the Secretary contends that Section 1910.119 is ambiguous and can reasonably be read to authorize successor liability. Because we vacate the citations for Items 4 and 12 based on Section 658(c)’s statute of limitations, we do not reach the successor liability issue.
Delek relies heavily on a decision by one of our sister circuits—AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012)— to support its statute of limitations argument. That case involved a set of citations issued by OSHA for violations of rules created under 29 U.S.C. § 657(c). Those rules required employers to “make, keep, and preserve” records of workplace injuries within a designated timeframe. Volks was cited in November 2006 for its failure to create and maintain such records between 2002 and early 2006. The company argued that Section 658(c)’s six-month limitations period began to run when the violation occurred (i.e., when the prescribed deadline for creating the records had run) and that the citations were issued more than six months after this time. The Secretary, by contrast, argued that Volks’ failure to create the required records was a continuing violation of the regulations, such that the six-month period began anew each day until the close of the five-year period for which employers are required to keep records.
The D.C. Circuit rejected the Secretary’s continuing violations theory. In particular, the court concluded that such a theory was inconsistent with the text of Section 658(c), which identifies an “occurrence” as the trigger for the statute of limitations. According to the court, an “occurrence” “clearly refers to a discrete antecedent event—something that ‘happened’ or ‘came to pass’ ‘in the past.’” The Secretary’s continuing violations argument was inconsistent with this understanding of an “occurrence” because the nature of a continuing violation is that it is ongoing—not a discrete, past event.
Though we are not bound by the Volks decision, we find its reasoning persuasive. Section 1910.119 requires an employer to “establish a system to promptly address the [PHA] team’s 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 …” 29 C.F.R. § 1910.119(e)(5), (o)(4). Just as a single violation “occurr[ed]” in Volks when the company failed to create the records within the prescribed time-period, so too a violation of subsections (e)(5) and (o)(4) “occur[s]” within the meaning of Section 658(c) when an employer does not “promptly” or “timely” do as Section 1910.119 directs.
The Secretary reasserts here the “continuing violations” theory made in Volks, arguing that Delek’s failure to address the findings or recommendations at issue in Items 4 and 12 is a “continuing violation” and so Section 658(c)’s statute of limitations never began to run on those citations because they were never abated. We cannot accept this argument. To begin with, we note that applying a continuing violations theory in this case would conflict with the basic purposes of a statutory limitations period. “The general working presumption in federal civil and criminal cases is that a federal civil cause of action or criminal offense must have some statute of limitations and must not allow suits to be brought forever and ever after the acts in question.” (“As Chief Justice Marshall stated, allowing parties to sue ‘at any distance of time’ would be ‘utterly repugnant to the genius of our laws. In a country where not even treason can be prosecuted after a lapse of three years, it could scarcely be supposed that an individual would remain forever liable to a pecuniary forfeiture.’” (quoting Adams v. Woods, 6 U.S. 336, 342 (1805))). The purpose of a statute of limitations is to “provide ‘security and stability to human affairs,’” Gabelli v. SEC, 133 S. Ct. 1216, 1221 (2013) (quoting Wood v. Carpenter, 101 U.S. 135, 139 (1879)), by promoting the “elimination of stale claims, and [promoting] certainty about a plaintiff’s opportunity for recovery and a defendant’s potential liabilities.” Gabelli, 133 S. Ct. at 1221 (quoting Rotella v. Wood, 528 U.S. 549, 555 (2000)).
The Secretary’s proposed reading of Section 658(c) is, at best, in tension with these policies. Under the Secretary’s theory, OSHA would have authority to penalize an employer for failing to “promptly” or “timely” address PHA 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. And as the Secretary has candidly acknowledged, his interpretation would authorize citations for unaddressed PHA or audit recommendations ad infinitum.
At the same time, the Secretary’s reading of Section 658(c)—one that allows for citations decades after the “occurrence” of a violation—is at odds with the six-month limitations period in Section 658(c)’s text. Accepting the Secretary’s reading would effectively nullify the six-month limitations period that Congress deliberately wrote into Section 658(c) and thereby render that language meaningless in many cases. Our precedents, however, have repeatedly cautioned against interpreting statutes in such a manner if at all possible.
It is true that Volks left open the possibility that Section 658(c)’s statute of limitations “could be extended by the continuing violations concept” and identified safety violations as a possible candidate for the continuing violations theory. Volks, 675 F.3d at 758 (“Of course, where, for example a company continues to subject its employees to unsafe machines, or continues to send its employees into dangerous situations without appropriate training, OSHA may be able to toll the statute of limitations on a continuing violations theory since the dangers created by the violations persist.” (internal citations omitted)). The Secretary argues strenuously that the continuing violations theory applies to the directives in subsections (e)(5) and (o)(4).
We, like the Volks court, do not decide whether OSHA may be able to use the continuing violations theory to toll Section 658(c)’s statute of limitations in cases involving continuing, unlawful risks to employee health and safety. Here, neither Section 1910.119(e)(5) nor (o)(4) mandates that the employer actually remedy the issues addressed in a PHA or audit recommendation. See 29 C.F.R. § 1910.119(e)(5), (o)(4). Subsection (e)(5) directs the employer to “address” the findings from a PHA and to “resolve[ ]” them in a timely manner. Likewise, subsection (o)(4) directs employers to “determine and document an appropriate response” to the audit compliance findings. As the Secretary acknowledges in his brief, “[a] PHA finding or recommendation is ‘resolved’ when the employer has adopted the item or has justifiably declined to do so.” Secretary Br. at 5 n. We conclude, as did the D.C. Circuit, that Section 658(c) is clear, and so we do not defer to the Secretary’s interpretation. Accordingly, we hold that Section 658(c)’s six-month statute of limitations bars the citations for Items 4 and 12. We therefore vacate those citations.
IV.
We hold that the citations for Items 4 and 12 are barred by Section 658(c)’s six-month statute of limitations.
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