OSHA SOL interpretation unreasonable – no deference given / recordkeeping violations dismissed

AKM LLC, v. Sec. of Labor, 675 F.3rd 752 (2012).

On May 10, 2006, OSHA began an inspection of AKM LLC, doing business as Volks Constructors (Volks), and discovered that Volks had not been keeping updated injury report logs, forms, and summaries between 2002 and early 2006.  On November 8, 2006, OSHA issued the following citations with associated fines totaling $13,300.00:

  • 67 violations of 29 CFR § 1904.29(b)(2)—alleging incident report forms were incomplete;
  • 102 violations of 29 CFR § 1904.29(b)(3)—alleging injuries were not entered in Volks’ log;
  • One violation of 29 CFR § 1904.32(a)(1)—alleging year-end reviews were not conducted between 2002 and 2005;
  • One violation of 29 CFR § 1904.32(b)(3)—alleging the wrong person certified the summary.

Volks appealed and moved to dismiss the citations because they were issued over six months since the occurrence of the most recent allegedly improper injury recording on April 22, 2006. The Administrative Law Judge affirmed the citations.  Volks’ appealed to the Review Commission. OSHA argued to the Commission that all cited violations were “continuing violations” because Volks had yet to rectify dating back to 2002.  As such, by OSHA’s reasoning the statute of limitations would not expire until the end of the five year document retention period in 29 CFR  § 1904.33(a). In a split decision, the Review Commission upheld the citations.  Volks’ appealed to the US Court of Appeals – DC Circuit.

The Court of Appeals framed the question on appeal as “whether the Act’s record-keeping requirement, in conjunction with the five year regulatory retention period, permits OSHA to subvert the Act’s six-month statute of limitations.”  The Court of Appeals held that, contrary to the Secretary’s interpretation, the Congressional intent behind the six month statute of limitations in the Act for issuance of citations was clear and exact.  As such, deference to OSHA’s interpretation was not appropriate nor warranted in this case.  Additionally, the Court of Appeals defined the word “occurrence” within the statute of limitations as a “discrete antecedent event.”  In this particular instance, the Court explained, each time Volks failed to report an injury, make a record, or review a record was one such “occurrence.”  The most recent “occurrence” took place more than six months before the issuance of the citations. The Court further held that the five year window for “failure to maintain records” could not be employed if those records had never been created to begin with, as alleged in the November 2006 citations. The Court of Appeals vacated the citations as untimely.

by Cummins, Goodman, Denley & Vickers, P.C.