New Developments at OSHA (May 2017)

Following are a couple of significant new OSHA developments for all safety professionals to be aware of, relating to limitations for OSHA citations and validity of OSHA interpretation letters.

I.   Trump Reins In Obama’s Expanded Rule for OSHA Record-Keeping Violations

The Occupational Safety and Health (OSH) Act requires employers to make, keep, and preserve records of workplace injuries. 29 U.S.C. § 657(c)(1). If a workplace injury occurs, employers must prepare an incident report and submit an injury log within seven calendar days of learning that an injury has occurred. 29 C.F.R. § 1904.32(b)(3). Further, employers must also prepare a year-end summary of all recordable injuries for that calendar year. 29 C.F.R. § 1904.32(a)(2). Finally, the employer must save all documentation of the injuries for five years from the date of the accident to the end of the calendar year those records cover. 29 C.F.R. § 1904.33(a).

Over the last decade, numerous disputes have arisen over whether OSHA could issue citations to employers at any point during the five-year record-keeping window for violations. The Occupational Safety & Health Review Commission found that violations that occurred during the five-year period were considered “continuous violations” and therefore OSHA could issue citations at any point during that five-year period. In 2012, the Court of Appeals for the D.C. Circuit reversed this determination and held that OSHA could only issue citations within six months of the workplace injury. AKM LLC d/b/a/ Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).  In response, in 2015 the Obama administration proposed the “Volks Rule” in an attempt to clarify that employers must update and maintain accurate records for the entire five-year period, meaning OSHA could issue citations for record defects at any point during those five years.

The so-called “Volks Rule” took effect in January of 2017. Shortly after President Trump took office, however, the House and the Senate jointly passed a resolution (H.J. Res. 83) nullifying the Volks Rule, and on April 4, 2017, President Trump signed the resolution. So, as it had previously been, OSHA can only issue citations up to six months following the initial violation.

II.   More OSHA Interpretation Letters Vulnerable to Court Challenge

The U.S. Court of Appeals for the D.C. Circuit recently held that when OSHA issues interpretation letters pertaining to the Process Safety Management (PSM) Standard, if the interpretation itself is considered a “standard” under the OSH Act the agency must comply with proper rulemaking procedures. Agricultural Retailers Association v. OSHA, No. 15-1326 (D.C. Cir. Sept. 23, 2016).

The PSM Standard was adopted in response to several large-scale chemical release incidents. The goal was to avoid catastrophic incidents while recognizing that many smaller businesses would not produce enough chemicals to create these problems. The PSM Standard contained an exception for “retail facilities,” but never defined what constituted a retail facility. Later, OSHA adopted the “50 percent test” where a facility could qualify for the retail exception if more than half of its income was derived from direct sales to end users. However, this definition was revisited in April of 2013 when a fertilizer business in Texas, a business that qualified for the exception, experienced an explosion that caused 15 deaths, 160 injuries, and damage to 150 buildings. After this incident, the Obama administration ordered the Department of Labor to re-evaluate the exception. On August 1, 2013, the Department rescinded the former definition and instituted a narrowed exception that would only be available to retail facilities handling small packages and containers of chemicals. Approximately 4,800 sites affected by this change were required to come into compliance within six months.

The Agricultural Retailers lawsuit was brought because the effect of the new definition was to significantly expand the application of the PSM Standard to a large number of additional facilities not previously subject to its requirements.  The court held that if OSHA is attempting to correct a hazard, it is considered a standard.  On the other hand, if OSHA is merely fixing an administrative or procedural issue, it is considered a regulation. The court held that this interpretation letter constituted a “standard” change, and therefore was subject to the rulemaking requirements under the OSH Act, including notice-and-comment requirements.

The United States Supreme Court has extended the deadline for OSHA to file a petition to review several times, the most recent deadline being May 19, 2017. If Agricultural Retailers stands, it could have several implications for employers. First, employers must quickly calculate whether to comply with a new interpretation or challenge it on the grounds that the interpretation should have been subject to full rulemaking. Second, when faced with enforcement actions, employers must also evaluate whether OSHA’s enforcement position is premised upon an interpretation that should have undergone rulemaking. This case also has implications that allow worker advocates to challenge interpretations that reduce protections for employees­ under the theory that the interpretation should have gone through a notice and comment period. Also, worker advocacy groups may be able to recover legal costs for these actions under the Equal Access to Justice Act.