UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

v. 

! 

i 

j 

i 

! 

! 

j 

! 

i 

! 

i 

! 

! 

i 

OSHRC Docket No. 06-1990 

AKM LLC dba VOLKS CONSTRUCTORS) i 

i 

Respondent. 

! 

i 

i 

~ 

VOLKS CONSTRUCTORS' 

OPENING BRIEF ON REVIEW 

Arthur G. Sapper 

Robert C. Gombar 

James A. Lastowka 

McDERMOTT WILL & EMERY LLP 

600 13th Street, N.W. 

Washington, D.C. 20005 

Attorneys for Respondent 
TABLE OF CONTENTS 

Page 

I. Summary of Volks' Principal Argument.. ................................................................... 1 

II. General Statement of the Case ...................................................................................... 2 

A. Background .......................................................................................................... 2 

B. The Judge's Decision .......................................................................................... 2 

III. Further Statement of the Case and Argument ............................................................ 3 

A. Citation 2, Item 2: Form 300 Log (§ 1904.29(b)(3) ) ........................................ 3 

1. Allegations and Stipulated Record ....................................................... 3 

2. Argument ................................................................................................. 4 

a. The Discovery Rule of Johnson Controls May Not Be 

Applied Here Because This Case is Appealable To A 

Circuit That Does Not Recognize Discovery Rules in 

Civil Administrative Cases ........................................................ 5 

(i) A Discovery Rule Must Rest on Statutory 

Language .......................................................................... 6 

(ii) A Discovery Rule Cannot Rest On Section 9(c) .......... 9 

b. Johnson Controls is Inconsistent With The Supreme 

Court's Distillation in TRW of Its Case Law on When 

A Discovery Rule May Be Used .............................................. 10 

c. A Failure to Record An Injury or Illness On An OSHA 

Form 300 Log Is Not A Continuing Violation ....................... 14 

(i) A Continuing Violation Theory Does Not 

Permit Charges to Rest on Events That 

Preceded The Limitations Period ............................... 15 

(ii) Continuing Violations May Not Be Found If 

They Are Necessarily Based on Stale Facts ............... 16 

(iii) Part 1904 Does Not Impose An Unlimited 

Continuing Duty To Record After The SevenDay Recording Period .................................................. 18 

B. Citation 2, Item 1: Form 301 Incident Report (§ 1904.29(b)(2)) .................. 23 

1. Allegations and Stipulated Record ..................................................... 23 

-1-
TABLE OF CONTENTS 

(continued) 

Page 

2. Argument ............................................................................................... 23 

C. Citation 2, Item 3: Review of Log at End of Calendar Year 

(§ 1904.32(a)(1» .................................................................................................. 26 

1. Allegations and Stipulated Record ..................................................... 26 

2. Argument ............................................................................................... 27 

D. Citation 2, Item 4: Wrong Certifier of Log (§ 1904.32(b)(3» ...................... 27 

1. Allegations and Stipulated Record ..................................................... 27 

2. Argument ............................................................................................... 28 

E. Citation 2, Item 5: Too-Brief Posting of Summary (§ 1904.32(b)(6» , ........ 29 

1. Allegations and Stipulated Record ..................................................... 29 

2. Argument ............................................................................................... 29 

F. Scope of Review ................................................................................................ 30 

1. The Secretary's View of A Regulation Is Entitled to Only As 

Much Weight As It Deserves, and Not Chevron-Level 

Deference ................................................................................................ 30 

1. The Secretary's View Is Entitled to Only As Much Weight as 

It Intrinsically Deserves, and Not Chevron-Level Deference .......... 30 

2. The Secretary's View of the Act Is Entitled to Neither 

Deference Nor Weight .......................................................................... 31 

IV. Conclusion ..................................................................................................................... 35 

Addendum A: Stipulation of the Parties ............................................................................ A-1 

Addendum B: Excerpts from Part 1904 and Related Materials ........................................ B-1 

AddendumC: Excerpts from 3M v. Browner, 17F.3d 1453,1460-63 (1994) ................... C-1 

Addendum D: Electronic Communication from the Secretary Regarding 

Representation ............................................................................................................. D-1 

-ii-
T ABLE OF AUTHORITIES 

Page 

CASES 

*3M v. Browner, 17 F.3d 1453, 1460-63 (D.C. Cir. 1994) .............. 2, 5, 6, 7, 8, 9, 10, 13 

Arcadian Corp., 17 BNA aSHC 1345, 1352 (aSHRC 1995), afi'd, 

110 F.3d 1192 (5th Cir. 1997) .............................................................................. 30 

Arcadian Corp., 20 BNA aSHC 2001,2013 (No. 93-628, 2004) ................................ 5, 6 

Arch Mineral Corp. v. Babbitt, 104 F.3d 660, 669-70 (4th Cir. 

1997) ........................................................................................................................ 8 

*Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar 

Corp., 522 U.S. 192,201 (1997) ........................................................................ 4, 14 

Brennan v. Chicago Bridge & Iron Co., 514 F.2d 1082, 1084, 

3 BNA aSHC 1056, 1057 (7th Cir. 1975) ............................................................ 9 

Byers v. Bacon, 95 A. 711,250 Pa. 564, 567 (1915) ......................................................... 7 

Caterpillar Inc., 15 BNA aSHC 2153, 2178 (No. 87-922, 1993) .................................. 12 

Center for Biological Diversity v. Hamilton, 453 F.3d 1331, 1335 

(11th Cir. 2006) ................................................................ 15, 16, 18, 24, 26, 28, 29 

Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.s. 

837 (1984) .............................................................................................................. 30 

D.M. Sabia Co., 17 BNA aSHC 1413, 1414 (No. 93-3274, 1995), 

vacated and remanded on other grounds, 17 BNA aSHC 

1680 (3rd Cir. 1996) ........................................................................................... 5, 6 

Dasgupta v. Univ. of Wis. Bd. of Regents, 121 F.3d 1138, 1140 (7th 

Cir.1997) ................................................................................................................ 18 

Eastern Associated Coal Corp., 7 IBMA 133, 1976-77 CCH aSHD 

<[ 21,373 (1976) (en banc) ...................................................................................... 32 

Farrens Tree Surgeons Inc., 15 BNA aSHC 1793, 1794 (No. 90-

998, 1992) ................................................................................................................ 5 

*FEC v. Williams, 104 F.3d 237, 240 (9th Cir. 1996, cert. denied, 

522 U.S. 1015 (1997) ............................................................................................... 8 

-iii-
TABLE OF AUTHORITIES 

(continued) 

Page 

*Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007 ....................................... .15 

*Garcia v. Brockway, 503 F.3d 1092 (9th Cir. 2007) .............................................. 8, 9, 19 

General Dynamics Corp., 15 BNA aSHC 2122,2177-78 (No. 87-

1195, 1993) .............................................................................................................. 5 

Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.s. 481, 

502 n.15 (1967) ...................................................................................................... 21 

Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982) ............................... 15, 17 

Interamericas Investments, Ltd. v. Federal Reserve Sys., 111 F.3d 

376,382 (5th Cir. 1997) ........................................................................................ 21 

Johnson Controls, Inc., 15 BNA aSHC 2132, 2135-36 (No. 89-

2614, 1993) ....................................................... I, 2,4,5, 10, 14, 16, 18, 19,21,24 

Kerns Bros. Tree Service, 18 BNA aSHC 2064,2067-68 n.7 

(No. 96-1719, 2000) .............................................................................................. 31 

Knight v. Columbus, 19 F.3d 579,583 (11th Cir. 1994) ................................................ 18 

*Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2170 

(2007) .......................................................................................... 2, 9, 15, 17, 18, 19 

Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 908 (1989) ..................................... 15 

*Machinists Local v. Labor Board, 362 U.S. 411, 422 (1960) ...................................... 1, 15 

Manganas Painting Co. 21 BNA aSHC 1964, 1989 (No. 94-588, 

2007) ...................................................................................................................... 12 

Martin v. OSHRC (CF&I Steel Corp.), 499 U.S. 144 (1991) ................................... 29, 30 

Mayers v. Laborers' Health & Safety Fund, 478 F.3d 364, 368 

(D.C. Cir. 2007) .................................................................................................... 15 

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-115, 

117 (2002) ........................................................................................................ 15, 18 

Phillips v. United States, 843 F.2d 438, 443 (11th Cir. 1988) ....................................... 16 

-iv-
TABLE OF AUTHORITIES 

(continued) 

Preminger v. Secretary of Veterans Affairs, 498 F.3d 1265, 1272 

Page 

(Fed. Cir. 2007) ..................................................................................................... 16 

Reich v. General Motors Corp., 89 F.3d 313 (6th Cir. 1996) .......................................... 29 

Shinabarger V. Jatoi, 385 F. SUppa 707, 710-711 (D.S.D. 1974) ..................................... 12 

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) ........................................................ 30 

State v. Chrysler Outboard Corp., 219 Wis. 2d 130, 146-155, 580 

N.W.2d 203, 209-213 (1998) .................................................................................. 8 

Summit Contractors, Inc., 21 BNA OSHC 2020, 2007 CCH 

OSHD 132,888 (No. 03-1622, 2007) .................................................................... 6 

Todd Shipyards Corp. v. Secretary of Labor, 566 F .2d 1327, 1330, 

6 BNA OSHC 1227, 1229 (9th Cir. 1977) .......................................................... 17 

Tolbert v. Ohio Dep't of Transp., 172 F.3d. 934, 940 (6th Cir. 1999) ...................... 16, 24 

*Toussie v. United States, 397 U.S. 112 (1970) ............................................................... 16 

*Trawinski v. United Techs., 313 F.3d 1295, 1298 (11th Cir. 2002) ................................ 8 

*TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001) ........................................... 2, 5, 6, 10, 11 

Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 65 (1953) ............................... 7 

United States ex reI. Tillson v. Lockheed Martin Energy Sys., 2004 

U.S. Dist. LEXIS 22246 (D. Ky. 2004) .................................................................. 8 

United States v. Del Percio, 870 F.2d 1090 (6th Cir. 1989) ........................................... 15 

United States v. Kubrick, 444 U.S. Ill, 121 n.7 (1979) ................................................. 11 

United States v. Marion, 404 U.S. 307, 322 n. 14 (1971) ............................................... 16 

United States v. Mead Corp., 533 U.S. 218 (2001) ......................................................... 30 

United States v. Reoganized CF&I Fabricators Of Utah, Inc., 518 

U.S. 213 (1996) ................................................................................... 29, 30, 31, 33 

United States v. Taigen & Sons, 303 F. Supp.2d 1129,1144 (D. 

Idaho 2003) ............................................................................................................. 8 

Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976) .................................... 32 

-v-
T ABLE OF AUTHORITIES 

(continued) 

OCCUPATIONAL SAFETY AND HEALTH ACT 

Page 

Section 9(c) of the Act, 29 U.S.C. § 658(c) ......................... 2, 4, 5, 9, 10, 14, 17,27, A-I 

Section 14 of the Act, 29 U.s.C. § 663 ........................................................................... 11 

Section 17(g) of the Act, 29 U.s.C. § 666(g) ................................................................. 12 

OTHER STATUTES 

28 U.S.C. § 2462 ..................................................................................................... 6, 7,8,9 

5 U.S.C. § 556(e) ................................................................................................................ 6 

Bank Holding Company Act ........................................................................................ 21 

Energy and Policy Conservation Act ............................................................................ 8 

Fair Credit Reporting Act (FCRA) ............................................................................... 10 

Fair Housing Act ........................................................................................................ 8, 15 

Federal Coal Mine Health and Safety Act of 1969, 30 U.s.C. 

§ 801 et seq. (1976) ................................................................................................ 31 

Federal Election Campaign Act ..................................................................................... 8 

Resource Conservation and Recovery Act (RCRA) .................................................... 8 

Surface Mining Control and Reclamation Act.. ........................................................... 8 

Title VII of Civil Rights Act .......................................................................................... 15 

Toxic Substances Control Act (TSCA) ....................................................................... 6, 9 

Wis. Stat. § 893.87 (1995-96) ............................................................................................ 8 

RULES 

29 C.F.R. Part 1904 ................................................................................................ 2, 19,21 

29 C.F.R. § 1904.6 ................................................................................................. 19 

29 C.F.R. § 1904.7(b)(4) & (vi) ............................................................................ 17 

29 C.F.R. § 1904.7(b)(5)(i)(B) .............................................................................. 17 

-vi-
TABLE OF AUTHORITIES 

(continued) 

Page 

29 C.F.R. § 1904.7(b)(5)(ii)(D) ............................................................................. 17 

29 C.F.R. § 1904.7(b)(5)(ii)(J) .............................................................................. 17 

29 C.F .R. § 1904.29 ............................................................................................. B-1 

29 C.F.R. § 1904.29(b)(2) ............................................................................... 23, 24 

29 C.F.R. § 1904.29(b)(3) .................................................. 3, 14,20,21,22,23,24 

29 C.F.R. § 1904.32 ............................................................................................. B-1 

29 C.F.R. § 1904.32(a) .......................................................................................... 21 

29 C.F.R. § 1904.32(a)(I) ................................................................................ 21, 25 

29 C.F.R. § 1904.32(b)(I) ..................................................................................... 21 

29 C.F.R. § 1904.32(b)(3) ............................................................ 12, 19, 20, 21, 27 

29 C.F.R. § 1904.32(b)(6) ..................................................................................... 28 

29 C.F.R. § 1904.33 ....................................................................................... 22, B-2 

29 C.F .R. § 1904.33( a) .......................................................................................... 22 

29 C.F.R. § 1904.33(b)(1) ..................................................................................... 22 

29 C.F.R. § 1904.33(b)(3) ..................................................................................... 24 

29 C.F.R. Part 1910 .......................................................................................................... 19 

61 Fed. Reg. 4030, 4060 (1996) ............................................................................... 25, B-2 

66 Fed. Reg. 5916 (2001) ................................................................................................. 20 

66 Fed. Reg. 5916, 6049 col. 3 (2001) ................................................................. 22 

66 Fed. Reg. 5916, 6070 col. 2 (2001) ................................................................. 12 

66 Fed. Reg. 6048 col. 3 ....................................................................................... 22 

66 Fed. Reg. at 6025 ............................................................................................. 25 

Commission Rule 61 ............................................................................................... 2, A-I 

Former § 1904.6 (2001) ................................................................................................... 21 

Proposed Version of § 1904.5 ................................................................................ 25, B-2 

-Vll-
TABLE OF AUTHORITIES 

(continued) 

MISCELLANEOUS 

"Employers Would Submit Injury, Illness Logs For OSHA 

Review, Verification, DOL Report Says," 24 BNA OSH 

Page 

Rep. 477 (1994) ..................................................................................................... 12 

"Special Report: Improved Targeting," 23 BNA OSH Rep. 968 

(1994) ..................................................................................................................... 12 

1 COAL LAW & REGULATION, CJI 1.04[9] [b] [iii], p. 1-49 (T. Biddle 

ed. 1990) ................................................................................................................ 32 

BOKAT & THOMPSON, OCCUPATIONAL SAFETY AND HEALTH 

LAW at 42 (1st ed. 1988) ...................................................................................... 32 

Brief by Federal Respondents in Opposition to Petition for 

Certiorari at 6, Perna v. United States, No. 02-727 (U.S. 

Jan. 2003) (cert. denied 2003), available at 

http://www . usdoj. gov / osg/briefs/2002/0responses/2002-

0787.resp.pdf ........................................................................................................ 11 

Brief of Am. Iron and Steel Institute at 4, available on Lexis at 

1989 U.S. Briefs 1541 ........................................................................................... 33 

E. H. Schopler, Annotation, When Statute of Limitations 

Commences to Run Against Malpractice Action Against 

Physician, Surgeon, Dentist, or Similar Practitioner, 80 

A.L.R.2D 368, 388 (1961) ....................................................................................... 7 

H. CONF. REP. No. 91-1765, at 38 (1970) ...................................................................... 10 

Judson MacLaury, The Job Safety Law of 1970: Its Passage Was 

Perilous, MONTHLY LAB. REV. 22-23 (March 1981), 

available at 

http://www.dol.gov/oasam/programslhistory/osha.htm ............................. 33 

Letter from K. Goddard (OSHA) to R. Bjork (CNH America 

LLC) (Aug. 26, 2004), available at 

http://www.osha.gov/pls/oshaweb/owadisp.show_docu 

ment?p_table=INTERPRETATIONS&p_id=24949 ......................................... 17 

-viii-
TABLE OF AUTHORITIES 

(continued) 

MARK A. ROTHSTEIN, OCCUPATIONAL SAFETY AND HEALTH 

Page 

LAW § 3, p. 7 (4th ed. 1998) ................................................................................. 32 

OSHA INSTRUCTION CPL 02-00-135, RECORDKEEPING POLICIES 

AND PROCEDURES MANUAL § ILB.1 (2004), available at 

http://www.osha.gov/pls/oshaweb/owadisp.show_docu 

ment?p _table=DIRECTIVES&p _id=3205 ......................................................... 12 

OSHA RECORDKEEPING HANDBOOK (OSHA 3245-01R, 2005) at 

Question 7-4, available at 

http://www .osha.gov /recordkeeping/handbook/index.h 

tml .......................................................................................................................... 17 

RESTATEMENT (SECOND) OF TORTS 899, Comment e, pp. 444-445 

(1979) ..................................................................................................................... 11 

S. COMM. ON LABOR AND PUBLIC WELFARE, 92D CONG., 1ST 

SESS., LEGISLATIVE HISTORY OF THE OCCUPATIONAL 

SAFETY AND HEALTH ACT OF 1970 (Comm. Print 1971) ..................... 10, 32, 33 

S. REP. NO. 1282, 91st Cong., 2d Sess. 55 (1970) .................................................. .32, 33 

-lX-
UNITED STATES OF AMERICA 

OCCUP ATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

v. 

: 

i 

i 

i 

i 

i 

! 

! 

! 

! 

! 

AKM LLC dba VOLKS CONSTRUCTORS) 

! 

! Respondent. ! 

f 

OSHRC Docket No. 06-1990 

VOLKS CONSTRUCTORS' OPENING BRIEF ON REVIEW 

I. Summary of Volks' Principal Argument 

An allegedly recordable injury or illness happened and eight days later, 

when the case was not recorded on the log, a violation occurred. Thereafter, 

nothing happened, in most cases for years. As a result, all charges here rest on 

alleged events that preceded the Act's limitations period, usually by years. 

Section 9( c) does not permit citations to rest - under either a discovery or a 

continuing violation theory on facts that are stale by years. "[A] finding of 

violation which is inescapably grounded on events predating the limitations 

period is directly at odds with the purposes of" a limitations period. Machinists 

Local v. Labor Board, 362 U.S. 411, 422 (1960). "Statutes of limitations ... 'represent 

a pervasive legislative judgment that it is unjust to fail to put the adversary on 

notice to defend within a specified period of time and that 'the right to be free of 

stale claims in time comes to prevail over the right to prosecute them.'" Ledbetter 

v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162, 2170 (2007). 

The discovery rule of Johnson Controls, Inc., 15 BNA OSHC 2132, 2135-36 

(No. 89-2614, 1993), may not be applied in the face of the decisions disapproving 
such a rule by, first, the D.C. Circuit in 3M v. Browner, 17 F.3d 1453, 1460-63 (D.C. 

Cir. 1994), and then by the u.s. Supreme Court in TRW Inc. v. Andrews, 534 U.s. 

19,27 (2001). Nor maya continuing violation theory may be applied in the face 

of decisions - including Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162, 

2170 (2007) - holding that a discrete, violative act must occur within a limitations 

period and that passive inaction is not a continuing violation. Moreover, the 

cited regulation does not impose an unlimited, continuing duty to correct a log. 

II. General Statement of the Case 

A. Background 

Citation 2, Items 1 through 5 (detailed in Part III below), allege that AKM 

LLC dba Yolks Constructors ("Volks") violated several recordkeeping 

regulations in 29 C.F.R. Part 1904, set out in Addendum B. In lieu of an 

evidentiary hearing, the parties submitted this case under Commission Rule 61 

on a stipulated record (Addendum A), for a ruling on, inter alia, whether the 

items were untimely under Section 9(c) of the Act, 29 U.s.C. § 658(c). 

B. The judge's Decision 

Chief Judge Sommer denied Yolks' motion for judgment and granted the 

Secretary's motion. As to the discovery-rule issue, the Chief Judge held that 3M 

and TRW were distinguishable because they did not involve Section 9(c). As to 

the continuing-violation theory, the Chief Judge concluded that he was bound by 

Johnson Controls. Additional details about the decision are provided below. 

-2-
III. Further Statement of the Case and Argument 

A. Citation 2, Item 2: Form 300 Log (§ 1904.29(b)(3) ) 

Yolks begins with Item 2 because it most clearly illustrates the issues in the 

case and because the analysis of Item 2 applies to all other items discussed here. 

1. Allegations and Stipulated Record 

Item 2 alleges a violation of § 1904.29(b )(3) for not entering 102 recordable 

cases on the OSHA Form 300 Logs for calendar years 2002 through 2006. Section 

1904.29(b )(3) (Addendum B-1) states: "You must enter each recordable injury or 

illness on the OSHA 300 Log and 301 Incident Report within seven (7) calendar 

days of receiving information that a recordable injury or illness has occurred." 

The parties stipulated: "With respect to Item ... 2, the injuries or illnesses 

had not been recorded on the ... Form 300 ('the log') within seven calendar days 

after the injury or illness dates, which for purposes of this stipulation is the date 

that Yolks received information that a recordable injury or illness occurred. The 

injuries and illnesses had not been recorded on [the] form by the date the OSHA 

inspection was initiated, May 10, 2006." The parties also stipulated that "Volks 

does not admit that violations occurred on or about the date of the inspection[.]" 

The earliest date that the regulation required any cited injury to be entered 

on the OSHA Form 300 Log is January 11, 2002, alleged in instance 74. Because 

that was stipulated to be the date that Yolks received information that a 

recordable case had occurred, the regulation required that case be entered on the 

log seven days later, by January 18, 2002. Hence, the alleged violation occurred 

the next day, January 19, 2002 - i.e., the first day after the expiration of the sevenday period. The citation was issued almost five years later, on November 8, 

-3-
2006. The most recent alleged violation date is April 26, 2006 (Instance 5; the case 

allegedly occurred on April 18, 2006). The citation was issued more than six 

months after that date. 

2. Argument 

Section 9(c) of the OSH Act, 29 U.S.C. § 658(c), states: "No citation may be 

issued ... after the expiration of six months following the occurrence of any 

violation." As noted above, the first alleged violation occurred on January 19, 

2002, the first day after the expiration of the seven-day recording period. Section 

9(c) then began to run, for "the standard rule [is] that the limitations period 

commences when the plaintiff has a I complete and present cause of action.'" Bay 

Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 201 

(1997). Inasmuch as the citation was issued more than six months (in most cases, 

years) after that date and every other such date, the items are facially untimely. 

In response, the Secretary argued to the Chief Judge that "Section 9(c) 

incorporates a discovery rule."l She never pointed, however, to any statutory 

language or legislative history from which a discovery rule could be derived. 

She instead cited the Commission's decision in Johnson Controls, Inc., 15 BNA 

OSHC 2132, 2135-36 (No. 89-2614, 1993), which held that an uncorrected error or 

omission in the former OSHA 200 Log "may be cited six months from the time 

the Secretary does discover, or reasonably should have discovered, the facts necessary 

to issue a citation." (Emphasis added.) See also General Dynamics Corp., 15 BNA 

1 Secretary's Response to Motion to Dismiss at 1 (filed Jan. 23, 2007). 

-4-
aSHC 2122, 2177-78 (No. 87-1195, 1993). We now show that controlling judicial 

precedent bars the application of a discovery rule under Section 9( c). 

a. The Discovery Rule of Johnson Controls May Not Be Applied 

Here Because This Case is Appealable To A Circuit That Does 

Not Recognize Discovery Rules in Civil Administrative Cases. 

The Commission applies the precedent of a court to which a case is 

appealable.2 "Where it is highly probable that a case will be appealed to a 

particular circuit, the Commission generally has applied the law of that circuit in 

deciding the case, even though it may clearly differ from the Commission's 

law."3 Yolks states that it is highly probable that an adverse decision would be 

appealed to the District of Columbia Circuit. 

The law of the D.C. CirCtlit on the discovery rule in administrative 

prosecutions is stated in 3M v. Browner, 17 F.3d 1453, 1460-63 (D.C. Cir. 1994). 

We show below (Part III.A.2.a(i), beginning on page 6) that 3M bars a discovery 

rule unsupported by the text of a statute. We then show (Part III.A.2.a(ii), 

beginning on page 9), that inasmuch as nothing in Section 9(c)'s language 

supports a discovery rule, 3M requires that the citation items be vacated. 

The Chief Judge suggested that the Commission would not re-examine 

Johnson Controls in light of 3M and TRW because they "were issued before the 

Commission's decision in Arcadian Corp., [20 BNA aSHC 2001, 2013 (No. 93-628, 

2004)], and I would assume that, had these cases been considered relevant, the 

Commission would have addressed them; ... Yolks' arguments ... are essentially 

2 Farrens Tree Surgeons Inc., 15 BNA aSHe 1793, 1794 (No. 90-998, 1992). 

3 D.M. Sabia Co., 17 BNA aSHe 1413, 1414 (No. 93-3274, 1995), vacated and remanded on 

other grounds, 17 BNA aSHe 1680 (3rd eire 1996). 

-5-
old arguments the Commission has considered and rejected before." JD at 6. 

This was error. First, cases are not precedent on points that they did not discuss.4 

Arcadian did not discuss 3M or TRW, for the parties' briefs did not mention 

them.5 Second, D.M. Sabia did not distinguish between court decisions that preand post-date a conflicting Commission precedent. 

(i) A Discovery Rule Must Rest on Statutory Language. 

In 3M, the D.C. Circllit held that, unless a discovery rule rests on statutory 

language, it may not be applied in administrative prosecutions. The 3M case 

involved an administrative prosecution by the EPA under the Toxic Substances 

Control Act (TSCA). That prosecution was alleged to be untimely under 

28 U.S.C. § 2462, which requires that federal civil penalty prosecutions be 

"commenced within five years from the date when the claim first accrued."6 The 

EPA argued that the prosecution was timely because it was commenced within 

five years of the date the EPA discovered or should have discovered the alleged 

violations. The EPA invoked a discovery-of-injury rule, which originated in tort 

4 E.g., Summit Contractors, Inc., 21 BNA OSHC 2020, 2007 CCH OSHD <]I 32,888 (No. 03-

1622, 2007) (departing from 31-year-old precedent in light of previously undiscussed 

regulation), pet. for review filed, No. 07-2191 (8th eir., May 15, 2007). 

5 The briefs in Arcadian are part of the Commission's records and hence may be officially 

noticed under 5 U.S.C. § 556(e). 

6 28 U.S.C. § 2462 states: 

§ 2462. Time for commencing proceedings 

Except as otherwise provided by Act of Congress, an action, suit or 

proceeding for the enforcement of any civil fine, penalty, or 

forfeiture, pecuniary or otherwise, shall not be entertained unless 

commenced within five years from the date when the claim first 

accrued if, within the same period, the offender or the property is 

found within the United States in order that proper service may be 

made thereon. 

-6-
suits in which surgical instruments left in patients were not discovered until after 

the limitations period had run.7 

The D.C. Circuit rejected use of a discovery rule in civil administrative 

prosecutions. It noted that the rationale for a discovery rule did not apply to 

non-tort cases, such as administrative enforcement actions. It also observed that 

an agency's failure to detect violations" does not avoid the problems of faded 

memories, lost witnesses and discarded documents" that statutes of limitations 

are enacted to avoid. The D.C. Circuit required that any discovery rule be based 

on statutory language, noting that it was "[m]ost important" that "nothing in the 

language of § 2462 even arguably makes the running of the limitations period 

turn on the degree of difficulty an agency experiences in detecting violations." 

Noting that the Supreme Court had disapproved of a discovery rule in a similar 

context,S the 3M court concluded that such a rule is "incompatible" with the 

purposes of a limitations period and cannot be justified by an agency's 

enforcement difficulties. The court stated: "We seriously doubt that conducting 

... hearings to determine whether an agency's enforcement branch adequately 

lived up to its responsibilities would be a workable or sensible method of 

administering any statute of limitations." 17 F.3d at 1460-63 (emphasis added). 

(An excerpt from 3M is set out beginning on Addendum page C-1 below.) 

7 E.g., Byers v. Bacon, 95 A. 711, 250 Pa. 564, 567 (1915) (surgical tube); E. H. Schopler, 

Annotation, When Statute of Limitations Commences to Run Against Malpractice Action 

Against Physician, Surgeon, Dentist, or Similar Practitioner, 80 A.L.R.2D 368, 388 (1961). 

8 Unexcelled Chemical Corp. v. United States, 345 U.s. 59, 65 (1953): "A cause of action is 

created when there is a breach of duty owed the plaintiff [Secretary of Labor]. It is that 

breach of duty, not its discovery, that normally is controlling." 

-7-
3M has been widely followed by other circuits and other federal and state 

courts, and has been applied under other federal statutes9 as well as under a state 

statute. 10 For example, the Eleventh Circuit, in applying 28 U.s.C. § 2462 to a 

claim under the Energy and Policy Conservation Act, stated: "This discovery 

rule, which might be applicable to statutes of limitations in state tort actions, has 

no place in a proceeding to enforce a civil penalty under a federal statute. The 

statute of limitations begins with the violation itself - it is upon violation, and 

not upon discovery of harm, that the claim is complete and the clock is ticking."l1 

The Ninth Circuit recently refused, without citation to 3M, to apply a discovery 

rule because it "would contradict the text of the [Fair Housing Act], as [its] 

statute of limitations for private civil actions begins to run when the 

discriminatory act occurs - not when it's encountered or discovered." Garcia v. 

Brockway, 503 F.3d 1092, 1100 (9th Cir. 2007) (per Kozinski, J.). 

9 Trawinski v. United Techs., 313 F.3d 1295, 1298 (11th Cir. 2002) (applying 28 U.s.c. 

§ 2462 under Energy and Policy Conservation Act); Arch Mineral Corp. v. Babbitt, 

104 F.3d 660,669-70 (4th Cir. 1997) ("We adopt the reasoning of .. . 3M"; applying 

28 U.s.c. § 2462 under Surface Mining Control and Reclamation Act); FEC v. Williams, 

104 F.3d 237,240 (9th Cir. 1996) (expressly agreeing with 3M; applying 28 U.s.c. § 2462 

under Federal Election Campaign Act), cert. denied, 522 U.s. 1015 (1997); United States ex 

reZ. Tillson v. Lockheed Martin Energy Sys., 2004 U.s. Dist. LEXIS 22246 (D. Ky. 2004) (3M 

"persuasive"; one circuit and five district court opinions rejected; applying 28 U.s.c. 

§ 2462 under Resource Conservation and Recovery Act (RCRA»; United States v. Taigen 

& Sons, 303 F. Supp.2d 1129, 1144 (D. Idaho 2003) (3M "persuasive"; applying 3M to 

28 U.s.c. § 2462 under Fair Housing Act). 

10 State v. Chrysler Outboard Corp., 219 Wis. 2d 130, 146-155,580 N.W.2d 203,209-213 

(1998) (prominently citing 3M to reject discovery rule under Wis. Stat. § 893.87 (1995-

96); lengthy, detailed discussion); 

11 Trawinski, 313 F.3d at 1298. 

-8-
Chief Judge Sommer held that 3M does not control here because it did "not 

address section 9(c)" and because 28 U.S.C. § 2462 is not "similar to section 9(c)." 

JD at 6 & n. 3. The Chief Judge never explained how the language of the two 

statutes differ. Instead, he stated that 3M is distinguishable because 28 U.S.C. 

§ 2462 "applies to the entire federal government." JD at 6. He apparently was 

referring to the D.C. Circuit's remark that § 2462 "is a general statute of 

limitations, applicable not just to EPA in TSCA cases, but to the entire federal 

government in all civil penalty cases .... We therefore cannot agree with EPA 

that our interpretation of § 2462 ought to be influenced by EPA's particular 

difficulties in enforcing TSCA." The Chief Judge overlooked that 3M's holding 

rested on a much broader ground - the absence of any statutory language upon 

which a discovery rule could rest: "Most important, nothing in the language of 

§ 2462 even arguably makes the running of the limitations period turn on the 

degree of difficulty an agency experiences in detecting violations." 17 F.3d at 

1461 (emphasis added). The Supreme Court recently emphasized the principal 

importance of a limitation period's wording. Ledbetter, 127 S.Ct. at 2177 ("We 

apply the statute as written .... "). The Ninth Circuit did the same in Garcia. In 

sum, a discovery rule must rest on Section 9(c)'s language. 

(ii) A Discovery Rule Cannot Rest On Section 9(c). 

Despite Yolks' repeated challenges to do so, the Secretary never pointed to 

any language in Section 9(c) on which a discovery rule can rest. This is 

understandable, for the language of Section 9( c) is "absolute." Brennan v. Chicago 

Bridge & Iron Co., 514 F.2d 1082, 1084,3 BNA aSHC 1056, 1057 (7th Cir. 1975) 

(emphasis by the court). The Secretary also failed to point to anything in the 

-9-
Act's legislative history suggesting that Section 9( c) could support a discovery 

rule. Indeed, Congress unequivocally stated that its language "prohibited 

issuance" of a citation after the limitations period expired, which it stated would 

occur "after the occurrence of any violation"12 - not its discovery. 

b. Johnson Controls is Inconsistent With The Supreme Court's 

Distillation in TRW of Its Case Law on When A Discovery Rule 

MayBe Used. 

Yolks argued to the Chief Judge that TRW Inc. v. Andrews, 534 U.s. 19, 27 

(2001), a Supreme Court decision issued after 3M and involving the Fair Credit 

Reporting Act (FCRA), requires vacation of the citation items. The Chief Judge 

disagreed, holding that TRW did not control because it did not involve Section 

9(c) of the Act, and because FCRA "provides for a limited situation in which a 

discovery rule applies." JD at 6. Neither is a valid distinction. 

In TRW, the Supreme Court made essentially two holdings: First, it 

surveyed its case law and stated that it has recognized a discovery rule only in 

"an area of the law that cries out for application of a discovery rule/' such as 

"latent disease and medical malpractice," or when lithe statute is silent on the 

issue of when the statute of limitations begins to run." One Justice added that 

the discovery rule when applied outside the medical malpractice field is "bad 

wine of recent vintage." 534 U.s. at 37 (Scalia, J., concurring). Second, the Court 

held that the presence of an express but limited discovery rule in the FCRA's text 

indicated that it should not be construed to permit a broader discovery rule. 

12 H. Conf. Rep. No. 91-1765, at 38 (1970), reprinted in S. COMM. ON LABOR AND PUBLIC 

WELFARE, 92D CONG., 1ST SESS., LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND 

HEALTH ACT OF 1970, at 1154, 1191 (Comm. Print 1971) ("Leg. Hist.") 

-10-
It is the first holding of TRW that is controlling here, not the second. As 

the Solicitor General has recognized, the Court's first holding represents the 

Court's distillation of its case law on the discovery rule generally - a distillation 

in which the Court "rejected the view that 'a generally applied discovery rule' is 

implicit in federal statutes of limitations."13 Accordingly, TRW's first holding 

applies to the aSH Act, and the Chief Judge erred in not following it. 

Realizing that TRW's first holding does apply here, the Secretary tried to 

come within its" cries out" branch. But as 3M held, the Secretary cannot do so, 

for the discovery rule does not apply to administrative prosecutions; it applies to 

tort cases, and only some tort cases. That alone requires rejection of the 

Secretary's" crying out" argument. 

Second, the Secretary is nowhere close to being the kind of plaintiff the 

discovery rule contemplates. Such a plaintiff lacks any means of protection 

except a damage suit; she faces physical and financial devastation from 

malpractice so subtle that she could not detect it in her own body within the 

limitations period; and she was injured by a professional in a position of trust. 14 

13 Brief by Federal Respondents in Opposition to Petition for Certiorari at 6, Perna v. 

United States, No. 02-727 (U.s. Jan. 2003) (cert. denied 2003) ("[T]his Court never has 

endorsed application of the discovery rule in FTCA cases outside the medical 

malpractice context. To the contrary, the Court recently rejected the view that J a 

generally applied discovery rule' is implicit in federal statutes of limitations," citing 

TRVV), available at http:Uwww.usdoj.gov/osglbriefs/2002/0responses/2002-0787.resp.pdf. 

This position would be binding on the Secretary. OSH Act § 14, 29 U.s.c. § 663. 

14 United States v. Kubrick, 444 U.s. 111, 121 n.7 (1979), quoting the reasons for the 

discovery rule in RESTATEMENT (SECOND) OF TORTS 899, Comment e, pp. 444-45 (1979): 

"One is the fact that in most instances the statutory period within which the action must 

be initiated is short ... but since many of the consequences of medical malpractice often 

do not become apparent for a period longer than that of the statute, the injured plaintiff 

is left without a remedy. The second reason is that the nature of the tort itself and the 

-11-
None of that applies here. Yolks is not a professional in a position of trust 

with OSHA. No devastating loss or damages cry out for redress; as a rule, a lack 

of recording devastates no one, causes no tragedies, is an "other than serious" 

violation15 (as it was alleged here), and is of low gravity.16 

Unlike the helpless medical malpractice victim, OSHA is also not without 

remedy. OSHA can, for six months after each calendar year, issue a citation 

under § 1904.32(b)(3) for a failure to examine the log from the previous calendar 

year. It can refer any knowingly false certification of a log for criminal 

prosecution under Section 17(g) of the Act; such a prosecution would be 

especially appropriate for the extremely rare case in which a failure to record 

actually affected employees, such as where it obscured a pattern of illness and 

delayed treatment. OSHA can also amend its regulations to incorporate a system 

that it has been considering17 - to require some or all employers to electronically 

character of the injury will frequently prevent knowledge of what is wrong, so that the 

plaintiff is forced to rely on what he is told by the physician or surgeon." See also 

Shinabarger v. Jatoi, 385 F. Supp. 707, 710-711 (D.5.D. 1974) (position of trust). 

15 Manganas Painting Co. 21 BNA OSHC 1964, 1989 (No. 94-588, 2007); OSHA 

INSTRUCTION CPL 02-00-135, RECORDKEEPING POLICIES AND PROCEDURES MANUAL § ILB.1 

(2004) (non-serious even if violations "materially impair the understandability" of 

hazards and injuries), available at http://www.osha.gov/pls/oshaweb/owadisp.show 

document?p table=DIRECTIVES&p id=3205. 

16 E.g., Caterpillar Inc., 15 BNA OSHC 2153,2178 (No. 87-922, 1993) (Commission 

"constrained" to characterize gravity as low). 

17 "OSHA [is] ... pursuing ways to allow employers to submit occupational injury and 

illness data electronically. In 1998, the OSHA [Survey of Occupational Injuries and 

Illnesses] allowed employers for the first time to submit their data electronically, and 

this practice will continue in future OSHA surveys." 66 Fed. Reg. 5916, 6070 col. 2 

(2001); "Employers Would Submit Injury, Illness Logs For OSHA Review, Verification, 

DOL Report Says," 24 BNA OSH Rep. 477 (1994); "Special Report: Improved 

Targeting," 23 BNA OSH Rep. 968 (1994) ("OSHA's existing data-gathering program, 

-12-
report their injuries, hours worked and SIC Code (all required on Form 300A). A 

computer could analyze such returns to find patterns of under-recording. 

(Before the Chief Judge, the Secretary did not deny any of this.) As the D.C. 

Circuit observed in 3M, 17 F.3d at 1461 n. 15, that a limitations period could be 

equitably tolled on the ground of fraudulent concealment by a false report 

further militates against any discovery rule. 

A recordkeeping violation also bears no resemblance to an act of 

malpractice so subtle that the latent injury it causes may not become manifest or 

actionable until the limitations period expires. A recordkeeping violation arises 

immediately, is citable immediately and, depending on congressional decisions 

to appropriate enforcement monies, is detectable immediately. Its 

discoverability depends not on inherent latency but on political choices to devote 

monies to OSHA enforcement rather than another purpose. As the 3M court 

observed, passing on such arguments would be wholly inappropriate. It would 

require the Commission to hold hearings on resource-allocation decisions by 

Congress, the President, and the Secretary on the number of inspectors to be 

hired, and on the manner and efficiency in which they are allocated and used. 

"[C]onducting ... hearings to determine whether an agency's enforcement 

branch adequately lived up to its responsibilities would [not] be a workable or 

sensible method of administering any statute of limitations .... " The situation 

which may eventually require employers in certain industries, states, or regions to 

submit their injury and illness logs directly to OSHA."). 

-13-
does not even come close to "crying out" for a departure from the plain language 

of Section 9( c). 

In sum, as the D.C. Circuit stated in 3M, a discovery rule is "unworkable; 

outside the language of the statute; ... unsupported by the discovery of injury 

rule adopted in non-enforcement, remedial cases; and incompatible with the 

functions served by a statute of limitations in penalty cases." 

c. A Failure to Record An Injury or Illness On An OSHA Form 

300 Log Is Not A Continuing Violation. 

The Secretary also argued, and the Chief Judge agreed, that the violations 

were continuing under Johnson Controls. That cannot be so. The facts are simple: 

An allegedly recordable injury or illness happened on a certain date. According 

to the stipulation, that day is also the date on which Yolks "receiv[ed] 

information that a recordable injury or illness has occurred." Section 

1904.29(b)(3) then required that the case be entered on the Log "within seven (7) 

calendar days .... " The alleged violation occurred on the eighth day, when the 

case was not recorded on the Log. According to the "standard rule" (Bay Area 

Laundry, 522 U.s. at 201), Section 9(c) then began to run. Thereafter, nothing 

happened, in most cases for years. 

These facts cannot establish a continuing violation. First, there is no 

continuing violation here under Supreme Court case law, for there is no discrete, 

violative act that occurred within the limitations period; the predicate events 

occurred long before. Part III.A.2.c(i), p. 15 below. Without a violative act that 

occurred within the limitations period, the facts are stale, and basing a citation on 

them defeats the purpose of a statute of limitations. Part III.A.2.c(ii), p. 16 below. 

-14-
Second, for a continuing violation theory to apply, the cited condition 

must have not merely existed during the limitations period but must have been a 

violation within that period. As shown in Part III.A.2.c(iii), p. 19, the regulations 

do not impose an unlimited, continuous obligation on employers to correct logs. 

(i) A Continuing Violation Theory Does Not Permit Charges 

to Rest on Events That Preceded The Limitations Period. 

There is a straightforward reason why a "continuing violation" theory 

cannot be applied to this case: The predicate events occurred only once and 

before, not during, the limitations period. "[A] finding of violation which is 

inescapably grounded on events predating the limitations period is directly at 

odds with the purposes of" a limitations period. Machinists Local v. Labor Board, 

362 U.S. 411, 422 (1960). There must be an "act[] committed by the defendants 

within the statute of limitations[.]" Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. 

Cir. 2007 (Indian claim statute).18 Hence, failures to rectify a fiduciary duty 

(Felter, 473 F.3d at 1260), to submit accurate reports,19 or to revoke an unlawful 

18 See also Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982) (Fair Housing Act; 

continuing violation requires overt act in limitations period); Mayers v. Laborers' Health 

& Safety Fund, 478 F.3d 364, 368 (D.C. Cir. 2007) (discrimination statute; continuing 

violation requires that" at least one illegal act t[ ake] place within the filing period"); 

Center for Biological Diversity v. Hamilton, 453 F.3d 1331, 1335 (11th Cir. 2006) (continuing 

violation requires that "additional violations of the law occur within the statutory 

period"). These decisions draw upon holdings reiterated in Ledbetter, 127 S.Ct. at 2169-

2172. E.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-115, 117 (2002) (Title 

VII of Civil Rights Act; requiring" discrete acts" within limitations period for ordinary 

claims; for hostile environment claims, "act contributing to the claim [must] occur[] 

within the filing period"); Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 908 (1989) (no 

continuing violation if claim "is wholly dependent on discriminatory conduct occurring 

well outside the period of limitations"). 

19 United States v. Del Percio, 870 F.2d 1090 (6th Cir. 1989). 

-15-
regulation,20 are not continuing violations. As the Sixth Circuit put it, "[p ]assive 

inaction ... does not support a continuing violation theory." Tolbert v. Ohio Dep't 

of Transp., 172 F.3d. 934, 940 (6th Cir. 1999). 

Johnson Controls is also inconsistent with the Supreme Court's seminal 

decision on whether passive inaction can constitute a continuing violationToussie v. United States, 397 U.S. 112 (1970), which concerned a failure to register 

for the draft. That case, which has been applied to civil cases (e.g., Center for 

Biological Diversity, 453 F.3d at 1335), made clear that, because the continuing 

offense theory "extends the statute beyond its stated term," the Court would be 

reluctant to apply it without a violative act that occurred during the limitations 

period, and that a mere continuing duty (while necessary) is not sufficient. 

397 U.S. at 861 (no continuing violation if "single, instantaneous act to be 

performed at a given time"), at 863 ("prolonged course of conduct" required; 

"continuing duty" not enough without violative act). 

Johnson Controls also violates the principle that "[s]tatutes of limitations, 

both criminal and civil, are to be liberally interpreted in favor of repose." Phillips 

v. United States, 843 F.2d 438, 443 (11th Cir. 1988), citing, inter alia, United States v. 

Marion, 404 U.S. 307, 322 n. 14 (1971). 

(ii) Continuing Violations May Not Be Found If They Are 

Necessarily Based on Stale Facts. 

"Statutes of limitations ... are intended to keep stale claims out of the 

courts .... Where the challenged violation is a continuing one, the staleness 

20 Preminger v. See'y of Veterans Affairs, 498 F.3d 1265, 1272 (Fed. eire 2007) (if unlawful 

1973 adoption of regulation were continuing APA violation, "there effectively would be 

no statute of limitations because the injury would always be ongoing"). 

-16-
concern disappears." I-Iavens Realty, 455 U.S. at 380. Section 9(c)'s purpose is 

likewise to "protect[] the employer" from stale charges. Todd Shipyards Corp. v. 

Secretary of Labor, 566 F.2d 1327, 1330, 6 BNA aSHC 1227, 1229 (9th Cir. 1977). 

Staleness is not a concern if the principle of Toussie and other cases is applied -

that is, that a violative act must occur during the limitations period. 

Here, the staleness concern is a real one, and Yolks has received no 

protection from it. The Yolks employees and former employees who are still 

alive (a Yolks employee who kept the 2002 log died over a year before the 

inspection began21 ) would have had to search their recollections of events that 

occurred almost five years ago and then draw fine distinctions to determine 

recordability, such as whether a particular injury restricted an employee's 

normal duties on a particular day, or amounted to medical treatment beyond 

first aid.22 Compare Ledbetter, 127 S.Ct. at 2172 & n.4 ("passage of time may 

seriously diminish the ability of the parties and the fact-finder to reconstruct 

what actually happened"; noting death of key witness). 

21 The Secretary authorized Yolks to state that the Secretary does not object to this 

representation. See Addendum D. 

22 The recordkeeping regulations require a formidable number of fine distinctions. 

Thus, use of medical glue to close a wound is recordable, but not to cover a wound. 

§ 1904.7(b)(5)(ii)(D), as interpreted in Letter from K. Goddard (OSHA) to R. Bjork (CNH 

America LLC) (Aug. 26, 2004), available at http://www.osha.gov/pls/oshaweb/owadisp. 

show document?p table=INTERPRETATIONS&p id=24949. Removing an eye cinder 

is recordable, unless only irrigation or a cotton swab is used. ld. at (J). An employee 

told by a physician to work more slowly or who works less efficiently is not restricted, 

but is restricted if told to omit a task regularly performed at least once per week. 

§ 1904.7(b)(4) & (vi); OSHA RECORDKEEPING HANDBOOK (OSHA 3245-01R, 2005) at 

Question 7-4, available at http://www.osha.gov/recordkeeping/handbook/index.html. 

X-rays are not recordable if taken solely for diagnosis, but are recordable otherwise. 

§ 1904.7(b)(5)(i)(B). Many more examples could be given. 

-17-
By contrast, in a conventional unguarded saw case, the evidence is 

necessarily not stale. Even if the saw's guard had been removed in 2002 and 

never replaced, and the condition persists into the limitations period, the absence 

of a guard today and employee exposure today are events within the limitations 

period - and thus provable with fresh evidence; the Secretary need not reach 

back to 2002 when the guard was first removed. Such a citation would not be 

Ii grounded on events predating the limitations period" under Machinists Local, 

and would thus be permitted. See also Knight v. Columbus, 19 F.3d 579,583 (11th 

Cir. 1994) (permitting claims that Ii do not require reference to any action ... 

outside the limitations period"). But that is not this case. 

The Secretary may claim that a continuing violation exists because the 

alleged violations deprived the Department of Labor, researchers, Yolks or its 

employees of statistical information. This consideration was mentioned in 

Johnson Controls, 15 BNA aSHC at 2134, 2135. However, after Johnson Controls 

was issued, the Supreme Court held that the continuation of a violation's adverse 

effects does not make the violation continuing.23 Accordingly, any continuing 

effects argument must be rejected. 

23 Nat'l RR Passenger, 536 U.s. at 111-13. This holding was reiterated in Ledbetter, 127 

S.Ct. at 2167-68. See also Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007) ("[a] 

lingering effect of an unlawful act is not itself an unlawful act.") (quoting Dasgupta v. 

Univ. of Wis. Bd. of Regents, 121 F.3d 1138, 1140 (7th Cir.1997)); Center for Biological 

Diversity v. Hamilton, 453 F.3d 1331, 1335 (11th Cir. 2006) ("present consequence of a one 

time violation ... does not extend the limitations period"). 

-18-
(iii) Part 1904 Does Not Impose An Unlimited Continuing 

Duty To Record After The Seven-Day Recording Period. 

There can be no continuing violation without a violation during the 

limitations period, and there can be no violation unless a duty to act applied 

then. Ledbetter, 127 S.Ct. at 2168; see also Garcia, 503 F.3d at 1097-98 & nn.4-5 

(applying principle; "design and construct" FHA violation not continuing, 

occurs only during "design-and-construction phase"). The question therefore 

arises: What provision of the recordkeeping regulations affirmatively imposed 

an unlimited, continuing duty to record after the seven-day recording period 

expired? 

The only possible candidate is § 1904.29(b)(3), the regulation allegedly 

violated. It states: "You must enter each recordable injury or illness on the 

OSHA 300 Log and 301 Incident Report within seven (7) calendar days of 

receiving information that a recordable injury or illness has occurred." No 

language there suggests that the duty to log a case continues uninterrupted after 

the seven-day recording period, and neither the Secretary nor the Chief Judge 

ever pointed to any. Instead, the Chief Judge pointed to what he called "the 

broadly worded" holding in Johnson Controls, and specifically this passage: 

Just as a condition that does not comply with a standard ... 

violates the Act until it is abated, an inaccurate entry on an 

OSHA form 200 violates the Act until it is corrected, or until 

the 5-year retention requirement of section 1904.6 expires. 

Thus, a failure to record an occupational injury or illness as 

required by the Secretary's recordkeeping regulations set forth 

in 29 C.F.R. Part 1904 .,., does not differ in substance from any 

other condition that must be abated pursuant to the 

occupational safety and health standards in 29 C.F.R. Part 1910 

.... We therefore conclude that an uncorrected error or 

omission in an employer's OSHA-required injury records may 

be cited six months from the time the Secretary does discover, 

-19-
or reasonably should have discovered, the facts necessary to 

issue a citation. 

With respect, this passage assumed that an unrecorded but recordable injury 

violates the Act until it is 1/ abated"; the Commission identified no words in the 

former24 regulations that imposed such an unlimited, continuing obligation. As 

shown below, there is no such duty in the current regulations. Although the 

previous paragraph in Johnson Controls spoke of a housekeeping standard, the 

implied analogy is not apt, for that standard imposes a duty (e.g., hosing down) 

so long as a certain physical condition (e.g., dirt on a floor) persists. Such cases 

do not present staleness problems because, by hypothesis, the duty-triggering 

facts (the dirty floor and exposure) persist into the limitations period, thereby 

daily generating fresh evidence of a violation. 

By contrast, the duty-triggering fact in § 1904.29(b)(3) - "receiving 

information that a recordable injury or illness has occurred" - occurs at one 

specific point in time, not every day. (Here, it was stipulated, the receipt of 

information occurred on the injury date, not thereafter.) Inasmuch as the dutytriggering fact did not recur, a violation of the duty to enter a recordable case on 

the log within seven days did not continue to occur. And as it receded into the 

past, the evidence for that duty-triggering fact became increasingly stale. 

As noted above, neither the Secretary nor the Chief Judge pointed to 

language in § 1904.29(b)(3), or even in Part 1904, suggesting that the duty to log a 

case continues uninterrupted after the seven-day recording period. Moreover, 

24 In 2002, a new Part 1904 went into effect. It reflected" a comprehensive revision of the 

OSHA injury and illness recordkeeping system." 66 Fed. Reg. 5916 (2001). 

-20-
Part 1904 refutes the notion. First, there is the specific recording period in the 

cited regulation. A violation of a duty to record or report within a specified time 

cannot be a continuing violation. Interamericas Investments, Ltd. v. Federal Reserve 

Sys., 111 F.3d 376, 382 (5th Cir. 1997),25 citing Hanover Shoe, Inc. v. United Shoe 

Machinery Corp., 392 U.S. 481, 502 n.15 (1967) (violation "which, if it occurs at all, 

must occur within some specific and limited time span" not continuing). 

Second, several regulations would be redundant - and their limitations 

nullified - if § 1904.29(b)(3) imposed an unlimited duty to ensure a log's 

completeness. Thus, §§ 1904.32(a)(I) and (b)(I) impose a duty to review log 

entries and ensure that they are "complete and correct" - but that duty applies 

"at the end of the year,"26 not thereafter. Similarly, § 1904.32(b)(3) requires a 

company executive to certify "that the annual summary is correct and complete," 

but that duty applies "[a]t the end of each calendar year" (§ 1904.32(a)), not 

thereafter. 

Third, an ever-ongoing obligation would make superfluous the newinformation provision in Paragraph (b)(I) of § 1904.33 (Addendum B-2), entitled 

"Retention and updating." It is possible that Johnson Controls relied on the fiveyear retention provision in former § 1904.6 (2001) as the source of an implied 

25 The Fifth Circuit stated: "For reporting statutes such as the [Bank Holding Company 

Act], so long as the reporting need not occur within a certain time span, a failure to report 

certain conditions will generally constitute a continuing violation for so long as the 

failure to report persists." (Emphasis added.) 

26 Section 1904.32(b)(1) states that the employer must "at the end of the year ... review 

the entries as extensively as necessary to make sure that they are complete and correct." 

See also § 1904.32(a)(1). 

-21-
continuing duty to keep the log up to date; the Secretary there prominently relied 

on that provision as the source of a supposed continuing duty to "correct 

inaccuracies". Such reliance is not possible under Part 1904' s new retention 

provision (§ 1904.33), for it imposes separate and more limited duties - to "save" 

the log (§ 1904.33(a)); and to lIupdate" it (§ 1904.33(b)(1)). The updating duty 

applies only to "previously recorded" and "newly discovered" injuries. The 

regulation's preamble shows that this narrow wording was was deliberate: 

The comments on the proposed rule's updating requirements 

for individual entries on the OSHA Form 300 reflected a 

considerable amount of confusion.. .. Because the proposed 

rule did not state how frequently the form was to be updated, 

some employers interpreted the proposed rule as permitting 

quarterly updates (proposed by OSHA for year-end summaries 

only) during the retention period .... Some participants argued 

for even less frequent updating .... Several employers 

recognized that the Log is an ongoing document and that 

information must be updated on a regular basis, preferably at 

the same frequency as required for initial recording .... The 

final rule requires Log updates to be made on a continuing 

basis, i.e., as new information is discovered. For example, if a 

new case is discovered during the retention period, it must be 

recorded within 7 calendar days of discovery, the same interval 

required for the recording of any new case. 

66 Fed. Reg. 5916,6049 col. 3 (2001) (emphasis added); see also id. at 6048 col. 3. 

The record does not show, and the Secretary has never claimed, that new 

information was discovered here. Construing § 1904.29(b)(3) to impose an everongoing obligation to update the log would make § 1904.33(b )(1) superfluous 

and nullify its limitation to "newly discovered" cases and information. 

Given the staleness problem here, the rule that limitations period must be 

interpreted in favor of repose, the lack of a duty-triggering event within the 

-22-
limitations period, and the lack of words in the regulation imposing an unlimited 

duty to update the log, the alleged violations were not continuing. 

B. Citation 2, Item 1: Form 301 Incident Report (§ 1904.29(b)(2» 

1. Allegations and Stipulated Record 

Item 1 alleges 67 violations of § 1904.29(b)(2) (Addendum B-1), which 

states: "You must complete an OSHA 301 Incident Report form ... for each 

recordable injury or illness entered on the OSHA 300 Log./1 The Form 301 must 

be completed "within seven (7) calendar days of receiving information that a 

recordable injury or illness has occurred./1 Section 1904.29(b )(3). 

The parties stipulated: "the injuries or illnesses had not been recorded on 

the Form 301 ('the incident report') ... within seven calendar days after the injury 

or illness dates, which for purposes of this stipulation is the date that Yolks 

received information that a recordable injury or illness occurred. The injuries 

and illnesses had not been recorded on [the] form by the date the OSHA 

inspection was initiated, May 10, 2006./1 The parties also stipulated that "Volks 

does not admit that violations occurred on or about the date of the inspection[.]" 

When the citation was issued on or about November 8,2006, all of the 

alleged instances of violation were older than six months, and most were years 

old. For example, Instance 64 was then over four years old. It alleges that a 

recordable injury occurred "on or about August 2t 2002, but "was not recorded 

on the OSHA Form 301 .... " Citation 2 was issued on November 8, 2006. 

2. Argument 

All the arguments made above with respect to Item 2 also apply to Item 1, 

and Yolks incorporates them by reference. As with the OSHA Form 300 log, the 

-23-
cited regulation, § 1904.29(b)(3) requires the Form 301 to be completed within a 

seven-day period, which was long over when the citation was issued here. If the 

case is not entered by the end of the seventh day, the violation is complete and 

citable on the eighth day. As with Item 2, there is no basis for applying a 

discovery rule. As with Item 2, there is no basis for finding a continuing 

violation, for no discrete, violative act occurred during the limitations period. 

Moreover, nothing in the regulations suggests an unlimited, continuing duty. 

On the contrary, the regulation expressly states that the review, and hence any 

violation, must occur at a "fixed point in time"27 - i.e., "within seven (7) calendar 

days of receiving information that a recordable injury or illness has occurred." 

After the injury, nothing happened, often for years. Passive inaction is not a 

continuing violation. Tolbert, 172 F.3d at 940. 

But Item 1 must be vacated for additional reasons. First, as noted above, it 

appears that Johnson Controls rested on the duty under the former recordkeeping 

regulations to update the log during the retention period. Yet, the new 

regulations expressly state that there is no obligation to update the Form 301 

during the retention period. Section 1904.33(b)(3) (Addendum B-2) states: "you 

are not required to update the OSHA 301 Incident Reports." Hence, there cannot 

be a continuing violation, and Johnson Controls is inapplicable. 

Second, the cited regulation, § 1904.29(b)(2), is inapplicable by its terms. It 

states: "You must complete an OSHA 301 Incident Report form ... for each 

recordable injury or illness entered on the OSHA 300 Log." (Emphasis added.) 

27 Center for Biological Diversity, 453 F.3d at 1335. 

-24-
Thus, if a case was not entered on the log, there is no duty to prepare a 

corresponding Form 301. Yet, Item 2 alleges and the parties stipulated that cited 

cases were not on the log. Before the Chief Judge, the Secretary nowhere denied 

the logic of this argument. Instead, she attempted to re-write the regulation to 

insert the words "required to be" - as if to make the regulation read "You must 

complete an OSHA 301 Incident Report form ... for each recordable injury or 

illness [required to be] entered on the OSHA 300 Log." But this is not how the 

regulation reads. Indeed, the phrase II entered on the OSHA 300 Log" was added 

to the proposed version,28 and the preamble to the final regulations indicates that 

the phrase was used advisedly. See 66 Fed. Reg. at 6025 (Form 301 required "for 

each injury and illness recorded on the Form 300") (emphasis added). 

Third, as the Commission suggested in its briefing order, the Secretary's 

position would also make for duplicative citation. Item 1 must be vacated. 

C. Citation 2, Item 3: Review of Log at End of Calendar Year 

(§ 1904.32(a)(1» 

1. Allegations and Stipulated Record 

Item 3 alleges: "During the years 2002 to 2005, Yolks ... did not review the 

300 Log to ensure that all entries were complete and accurate." Section 

1904.32(a)(1) (Addenum B-1) states: "At the end of each calendar year, you must 

... [r ]eview the OSHA 300 Log to verify that the entries are complete and 

accurate, and correct any deficiencies identified." 

28 Proposed § 1904.5(a) (Addendum B) stated in part: "In addition to the ... OSHA Form 

300 ... , each employer, shall complete an '" OSHA Form 301 ... for each recordable 

injury or illness experienced ... within 7 calendar days of receiving information that a 

recordable injury or illness has occurred." 61 Fed. Reg. 4030, 4060 (1996). 

-25-
The parties stipulated: " ... Yolks did not by the end of calendar year 2002, 

2003, 2004, and 2005 review the OSHA 300 Log for the respective year to ensure 

that all entries were complete and accurate. The logs had not been reviewed as 

of the date the OSHA inspection was initiated, May 10, 2006." The parties also 

stipulated that "Volks does not admit that violations occurred on or about the 

date of the inspection[.]" The referenced years (2002 to 2005) ended between 

four years and 11 months before the issuance of the citation. 

2. Argument 

All the arguments made above with respect to Item 2 also apply to Item 3, 

and Yolks incorporates them by reference. The cited regulation required the log 

to be reviewed "[a]t the end of [the] calendar year .... " If it was not then 

reviewed, the violation was then complete and citable. Those dates were long 

past when the citation here was issued. As with Item 2, there is no basis for 

applying a discovery rule. As with Item 2, there is no basis for finding a 

continuing violation, for no discrete, violative event occurred during the 

limitations period. Instead, nothing happened, in most cases for years. There is 

here only passive inaction - which does not support a continuing violation. 

Moreover, nothing in the regulations suggests that there is continuing duty 

on which to base a continuing violation. On the contrary, the regulation 

expressly states that the review, and hence any violation, must occur at a "fixed 

point in time"29 - "the end of [the] calendar year." The Secretary has not pointed 

to any provision to suggest that, months or years after the end of the calendar 

29 Center for Biological Diversity, 453 F .3d at 1335. 

-26-
year, there is a continuing duty to go back and review old logs to determine 

whether a previous review occurred or was adequate. Thus, Item 3 is untimely. 

D. Citation 2, Item 4: Wrong Certifier of Log (§ 1904.32(b)(3» 

1. Allegations and Stipulated Record 

Item 4 alleges that between 2002 and 2005 the wrong person certified the 

annual summary: "the Human Resources/Safety Manager ... certif[ied] that the 

OSHA 300 Log had been examined and that the annual summary was correct 

and complete." Section 1904.32(b )(3) (Addendum B-1) states: "At the end of 

each calendar year, ... [a] company executive must certify that he or she has 

examined the OSHA 300 Log and that he or she reasonably believes ... that the 

annual summary is correct and complete." 

The parties stipulated that "the annual summaries for the year 2002, the 

year 2003, the year 2004, and the year 2005 were certified by a person other than a 

company executive during those calendar years. The certifications by a company 

executive had not occurred as of the date the OSHA inspection was initiated, May 

10, 2006." The parties also stipulated: "Volks does not admit that violations 

occurred on or about the date of the inspection". The referenced years (2002 to 

2005) ended between four years and 11 months before the citation's issuance. 

2. Argument 

All the arguments made above with respect to Item 2 also apply to this 

item, and Yolks incorporates them by reference. The cited regulation required 

the log to be certified "[a]t the end of [the] calendar year ... ", after which the 

violation was complete and citable. Those dates were long past when the citation 

was issued. As with Item 2, there is no basis for applying a discovery rule. As 

-27-
with Item 2, there is no basis for a continuing violation, for no discrete, violative 

act occurred during the limitations period; there is only passive inaction. 

Moreover, the regulations nowhere suggest a continuing duty on which to base a 

continuing violation. On the contrary, the cited regulation sets a "fixed point in 

time"30 ("the end of each calendar year") by which the certification was required. 

E. Citation 2, Item 5: Too-Brief Posting of Summary (§ 1904.32(b)(6» 

1. Allegations and Stipulated Record 

Item 5 alleges: "During the year 2006 the OSHA Form 300A [annual 

summary] was only posted from February I, 2006 until February 28, 2006." The 

cited regulation, § 1904.32(b)(6) (Addendum B-1) states: "You must post the 

summary no later than February 1 of the year following the year covered by the 

records and keep the posting in place until April 30." 

The parties stipulated: "the annual summary for 2005 was posted only 

from February I, 2006 to February 28, 2006." They also stipulated: "Volks does 

not admit that violations occurred on or about the date of the inspection". Six 

months after March 1st (the first date that tIle summary was not posted) would 

have been September I, 2006. The citation here was issued on November 8, 2006. 

2. Argument 

All the arguments made above with respect to Item 2 also apply to this 

item, and Yolks incorporates them by reference. The cited regulation required 

the posting of the summary "until April 30, 2006," after which the violation was 

30 Center for Biological Diversity, 453 F .3d at 1335. 

-28-
complete and citable. That date was long past when the citation was issued. As 

with Item 2, a discovery rule may not be applied. 

As with Item 2, there is also no basis for a continuing violation, for no 

discrete, violative act occurred during the limitations period; there is only 

passive inaction. Moreover, the regulations nowhere suggest any continuing 

duty on which to base a continuing violation, for the cited regulation states a 

date certain (April 30th) by which the posting of the annual summary may come 

to an end. Nothing in the regulations suggests that there is a duty to post the 

annual summary thereafter if one had not previously posted it for the full period 

(i.e., from February 1st until April 30th). On the contrary, the phrase "no later 

than" in the regulation indicates just the opposite. As the Eleventh Circuit has 

stated: "The language 'not later than' creates not an ongoing duty but a fixed 

point in time at which the violation for the failure of the [party] to act arises." 

Center for Biological Diversity, 453 F.3d at 1335. Item 5 must be vacated. 

F. Scope of Review 

1. The Secretary's View of A Regulation Is Entitled to Only As Much 

Weight As It Deserves, and Not Chevron-Level Deference. 

The Commission owes the Secretary's views no deference or weight unless 

a regulation is ambiguous. Martin v. OSHRC (CF&I Steel Corp.), 499 U.S. 144, 156-

57 (1991); Reich v. General Motors Corp., 89 F.3d 313 (6th Cir. 1996). The 

regulations here are not ambiguous. 

The Secretary may argue that, if a regulation is ambiguous, then under 

CF&I Steel her view is entitled to prevail if it is merely reasonable. Such an 

argument would be incorrect. An agency interpretation not fashioned in 

-29-
rulemaking or formal adjudication, but in litigation, is not entitled to Chevron31 -

level deference - i.e., entitled to prevail if it is merely reasonable. United States v. 

Mead Corp., 533 U.S. 218 (2001). Under Mead, such a view is entitled to only as 

much as weight as the Commission believes, in its de novo examination of the 

interpretive issue, that the view intrinsically deserves. Mead characterized CF&I 

Steel specifically as requiring only Skidmore32 weight: It stated that only "some 

weight" need be given to OSHA's "informal interpretations" and not the "the 

same deference as norms that derive from the exercise of ... delegated 

lawmaking powers." 533 U.S. at 234-35, citing CF&I Steel, 499 U.S. at 157. Hence, 

Chevron-level deference is inappropriate here. 

2. The Secretary's View of the Act Is Entitled to Neither Deference 

Nor Weight. 

As to construction of the Act, the Commission owes the Secretary neither 

Chevron deference nor Skidmore weight. Arcadian Corp., 17 BNA OSHC 1345, 1352 

(OSHRC 1995), aff'd, 110 F.3d 1192 (5th Cir. 1997). Amici urge the Commission to 

not only adhere to this precedent, but to explain clearly and firmly to the courts 

why it does not defer on statutory questions. If the Commission does not defend 

its intended role under the Act, the courts will continue to pay no attention to 

employers or amici who do, and the courts will continue to fail to closely analyze 

whether CF&I Steel applies to questions of statutory construction. They will 

thereby implicitly force the Commission to defer to the Secretary on questions of 

statutory construction, and ultimately destroy the Commission's intended role 

31 Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). 

32 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). 

-30-
under the Act. For these reasons, the Commission should expressly reject any 

deference argument and explain its reasoning in detail. 

At bottom, the Secretary's argument rests on CF&I Steel. But as the 

Commission has recognized, that decision says nothing about statutory 

construction. The Court's holding was confined to the Secretary's interpretation 

of her standards. And the essential premises underlying the reasoning of CF&I 

Steel - that the Secretary's power to construe standards is derivative of her 

power to adopt them, and that the Secretary is in a superior position to construe 

standards she authored - are inapplicable to interpretations of the Act. Kerns 

Bros. Tree Service, 18 BNA OSHC 2064,2067-68 n. 7 (No. 96-1719, 2000) (CF&I Steel 

applies to standards, not "contested interpretations of the statute itself."). 

Moreover, there is strong reason why CF&I Steel should not be extended 

further than its precise holding. That reason is indisputable congressional intent, 

not discussed in CF&I Steel, but documented on p. 33 below and never plausibly 

denied by the Secretary, that Congress intended that the Commission be "an 

autonomous, independent commission which, without regard to the Secretary, 

can find for or against him on the basis of individual complaints." 

In 1970, when Congress was considering passage of the Act, a central 

dispute was who would decide enforcement cases. One proposal, advocated by 

labor unions and Democrats, was to commit adjudication to the Labor 

Department; the expectation was that it would establish a departmental appeals 

board, i.e., a board established by a cabinet agency to adjudicate cases brought by 

its enforcement bureau. For example, the Federal Coal Mine Health and Safety 

Act of 1969,30 U.S.C. § 801 et seq. (1976), gave all administrative functions to the 

-31-
Department of the Interior. That department established an enforcement arm, 

the Mining Enforcement Safety Administration (MESA), and an adjudication 

arm, the Interior Board of Mine Operation Appeals (IBMA). The IBMA reviewed 

questions of law de novo, without deference to MESA,33 and courts deferred to the 

views of the IBMA, for it - not the enforcement office - spoke for the cabinet 

department. 34 Such departmental appeals boards were then the rule within the 

federal government. 

But in 1970, dissatisfaction and suspicion of the independence and 

objectivity of such boards ran so deep as to endanger the Act's passage.35 The 

President threatened to veto any bill that placed all administrative powers in one 

agency. BOKAT & THOMPSON, OCCUPATIONAL SAFETY AND HEALTH LAW at 42 (1st 

ed.1988). To save the Act, Senator Javits proposed an "important"36 compromise 

- the establishment of an independent adjudicator. In urging it, he assured the 

Senate that it would establish "an autonomous, independent commission which, 

33 See, e.g., Eastern Associated Coal Corp., 7 IBMA 133, 1976-77 CCH OSHD 11 21,373 (1976) 

(en bane) ; 1 COAL LAW & REGULATION, 11 1.04[9][b][iiiJ, p. 1-49 (T. Biddle ed. 1990) ("Of 

course, the Board could independently decide questions of law."). MESA was later 

transferred to the Labor Department and became MSHA after the Federal Mine Safety 

and Health Act of 1977 was passed; the IBMA's functions were transferred to the 

newly-created Federal Mine Safety and Health Review Commission. 

34 Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976) (IBMA's view "must be 

given some significant weight"). 

35 S. REP. No. 1282, 91st Cong., 2d Sess. 55 (1970), reprinted in Leg. Hist. at 194 (debate 

"so bitter as to jeopardize seriously the prospects for enactment.. .. "). See also the 

pointed remarks by Senators Dominick and Smith appended to S. REP. at 61-64, Leg. 

Hist. at 200-03. 

36 MARK A. ROTHSTEIN, OCCUPATIONAL SAFETY AND HEALTH LAW § 3, p. 7 (4th ed. 1998) 

(Act passed only after Senate "passed a series of compromise amendments, including 

an important amendment by Senator Jacob Javits .... "). 

-32-
without regard to the Secretary, can find for or against him on the basis of 

individual complaints."37 Senator Javits's remark is apparently the only piece of 

legislative history that directly addresses deference. It was on the strength of 

that assurance that Senator Holland immediately declared his support, stating 

that "that kind of independent enforcement is required .... "38 It was on the heels 

of that assurance that the Senate voted in favor of the Javits compromise. 

The Secretary's position on deference is irreconcilable with Senator Javits's 

statement. The Commission cannot both decide cases "without regard to" the 

Secretary's position and, at the same time, give the Secretary's position weight, let 

alone controlling regard. Moreover, ignoring Senator Javits's specific remarks on 

deference would, ironically, make the Commission even more subservient than 

the pre-Act departmental appeals boards that Congress in 1970 specifically 

rejected as insufficiently independent. 

Respect for Congress requires that its undisputed intent be given as much 

effect as possible. Although Senator Javits's statement was noted in one amicus 

brief in CF&I Steel,39 the employer'S brief failed to quote or cite it,40 and the 

Supreme Court did not discuss it or note it. Thus, CF&I Steel should not be 

37 Leg. Hist. at 463 (emphasis added). 

38 Id. See also id. at 193-94, 200-03, 380-94, 479; and Judson MacLaury, The Job Safety Law 

of 1970: Its Passage Was Perilous, MONTHLY LAB. REV. 22-23 (March 1981), available at 

http://www.dol.gov/oasam/programslhistory/osha.htm. 

39 Brief of Am. Iron and Steel Institute at 4, available on Lexis at 1989 U.S. Briefs 1541. 

40 The Commission may take official notice that CF&I Steel was then in bankruptcy 

(United States v. Reoganized CF&I Fabricators Of Utah, Inc., 518 U.S. 213 (1996», and was 

represented by a small practitioner (http://pview.findlaw.com/view/2222453 

1 ?noconfirm=O) that a Westlaw or Lexis search would show had not previously litigated 

cases before the Commission. 

-33-
extended beyond the narrow rule it established - that the Secretary receives 

deference or weight with respect to interpretation of her own standards and 

regulations. 

IV. Conclusion 

Items 1 through 5 of Citation 2 should be vacated. 

Arthur . Sapper 

Robert C. Gombar 

James A. Lastowka 

McDERMOTT WILL & EMERY LLP 

600 13th Street, N.W. 

Washington, D.C. 20005 

(202) 756-8246, (202) 756-8087 (fax) 

Attorneys for Respondent 

-34-
CERTIFICATE OF SERVICE 

I hereby certify that on November ~20071 the foregoing was served upon 

the following by first class mail on: 

Orlando Pannochia, Esq., Counsel for Regional Trial Litigation, 

Charles F. James and Michael Doyle, Esq., Counsels for Appellate Litigation 

RoomS-4004 

Office of the Solicitor 

U.S. Department of Labor 

200 Constitution Avenue, N.W. 

Washington, D.C. 20036-3419 
Addendum A: Stipulation of the Parties 

With respect to Citation 2, Items 1 through 5, the only 

citation items still at issue in this case, Complainant, Secretary of 

Labor, United States Department of Labor, and Respondent, AKM 

LLC dba Yolks Constructors ("Yolks"), submit the case for 

decision under Commission Rule 61. The parties respectfully 

request permission to file briefs and/or motions for judgment after 

filing these stipulations. For the purpose of this case, the parties 

stipulate as follows: 

1. Yolks will no longer, for the purpose of these stipulations, 

contest the allegations of Citation 2, Items 1 through 5, that 

violations occurred and that the proposed penalties are 

appropriate, except that: (a) Yolks preserves its defense that the 

items are untimely under Section 9(c) of the Act; (b) Yolks does 

not admit that violations occurred on or about the date of the 

inspection; and (c) as to Item 1, Yolks preserves its defense that the 

allegations fail to state a claim upon which relief may be granted 

with respect to whether an OSHA Form 301 was required. 

2. With respect to Items 1 and 2, the injuries or illnesses had 

not been recorded on the Form 301 (lithe incident report") or Form 

300 (lithe log") within seven calendar days after the injury or 

illness dates, which for purposes of this stipulation is the date that 

Yolks received information that a recordable injury or illness 

occurred. The injuries and illnesses had not been recorded on 

A-I 
either form by the date the OSHA inspection was initiated, 

May 10, 2006. 

3. With respect to Item 3, Yolks did not by the end of calendar 

year 2002, 2003, 2004, and 2005 review the OSHA 300 Log for the 

respective year to ensure that all entries were complete and 

accurate. The logs had not been reviewed as of the date the OSHA 

inspection was initiated, May 10, 2006. 

4. With respect to Item 4, the annual summaries for the year 

2002, the year 2003, the year 2004, and the year 2005 were certified 

by a person other than a company executive during those calendar 

years. The certifications by a company executive had not occurred 

as of the date the OSHA inspection was initiated, May 10, 2006. 

5. With respect to Item 5, the annual summary for 2005 was 

posted only from February I, 2006 to February 28, 2006. 

A-2 
Addendum B: Excerpts from Part 1904 and Related Materials 

The cited portion of § 1904.29 states in context: 

§ 1904.29 Forms 

* * * 

(b )(1) Implementation. What do I need to do to complete the 

OSHA 300 Log? You must enter information about your 

business at the top of the OSHA 300 Log, enter a one or two 

line description for each recordable injury or illness, and 

summarize this information on the OSHA 300-A at the end of 

the year. 

(2) What do I need to do to complete the OSHA 301 Incident 

Report? You must complete an OSHA 301 Incident Report 

form, or an equivalent form, for each recordable injury or 

illness entered on the OSHA 300 Log. 

(3) How quickly must each injury or illness be recorded? 

You must enter each recordable injury or illness on the OSHA 

300 Log and 301 Incident Report within seven (7) calendar days 

of receiving information that a recordable injury or illness has 

occurred. 

The cited portion of § 1904.32 states in context: 

§ 1904.32 Annual summary 

(a) Basic requirement. At the end of each calendar year, you 

must: 

(1) Review the OSHA 300 Log to verify that the entries are 

complete and accurate, and correct any deficiencies identified; 

(2) Create an annual summary of injuries and illnesses 

recorded on the OSHA 300 Log; 

(3) Certify the summary; and 

(4) Post the annual summary. 

* * * 

(b) ... (3) How do I certify the annual summary? A company 

executive must certify that he or she has examined the OSHA 

300 Log and that he or she reasonably believes, based on his or 

B-1 
her knowledge of the process by which the information was 

recorded, that the annual summary is correct and complete. 

* * * 

(6) When do I have to post the annual summary? You must 

post the summary no later than February 1 of the year 

following the year covered by the records and keep the posting 

in place until April 30. 

Section 1904.33 states: 

§ 1904.33 Retention and updating. 

* * * 

(b )(1) Implementation. Do I have to update the OSHA 300 Log 

during the five-year storage period? Yes, during the storage 

period, you must update your stored OSHA 300 Logs to 

include newly discovered recordable injuries or illnesses and to 

show any changes that have occurred in the classification of 

previously recorded injuries and illnesses. If the description or 

outcome of a case changes, you must remove or line out the 

original entry and enter the new information. 

(2) Do I have to update the annual summary? No, you are 

not required to update the annual summary, but you may do 

so if you wish. 

(3) Do I have to update the OSHA 301 Incident Reports? 

No, you are not required to update the OSHA 301 Incident 

Reports, but you may do so if you wish. 

The text of the proposed version of § 1904.5 (from 61 Fed. Reg. 4030, 4060 (1996)): 

§ 1904.5 -- OSHA Injury and Illness Incident Record (OSHA 

Form 301 or Equivalent). 

(a) In addition to the OSHA Injury and Illness Log and 

Summary (OSHA Form 300) provided for under Section 

§ 1904.4(a) of this Part, each employer, shall complete an OSHA 

Injury and Illness Incident Record [OSHA Form 301 (formerly 

B-2 
OSHA Form 101)] for each recordable injury or illness 

experienced by employees of that establishment, within 7 

calendar days of receiving information that a recordable injury 

or illness has occurred. Each OSHA Form 301 must contain the 

unique case or file number relating it to the corresponding case 

entry on the OSHA Form 300. 

(b) An employer may maintain the OSHA Form(s) 301 on an 

equivalent form(s), by means of data processing equipment, or 

both, when all of the following conditions are met: 

(1) The equivalent form or computer printout is as readable 

and understandable as the OSHA Form 301 to a person familiar 

with the OSHA Form 301. 

(2) The equivalent form or computer printout must contain, 

all of the information found on the OSHA Form 301, or must be 

supplemented by an OSHA Form 301 containing the missing 

information. The detailed information concerning the injury or 

illness (questions 16, 17 and 18) must be asked in the same 

order and using identical language from the Form 301. All 

other questions may be asked in any manner and in any order. 

B-3 
Addendum C: Excerpts from 3M v. Browner, 17 F.3d 1453, 1460-63 (1994) 

The remaining issue concerns the 

meaning of § 2462' s phrase "unless 

commenced within five years from 

the date when the claim first 

accrued." ... EPA contends, and the 

AL] held, that its claim for penalties 

"first accrued" when it discovered 

3M's violations, not beforehand 

when the company committed those 

violations. 

A claim normally accrues when 

the factual and legal prerequisites for 

filing suit are in place. [Citations 

omitted.] While this appears to be a 

straightforward formulation, there 

may be complications: "The statutory 

period may begin either when the 

defendant commits his wrong or 

when substantial harm matures. 

This choice, unnecessary where the 

two events are simultaneous, 

becomes complex where 

considerable time intervenes; here 

the courts have generally looked to 

the substantive elements of the cause 

of action on which the suit is based." 

Note, Developments in the Law 

Statutes of Limitations, 63 HARV. L. 

REV. at 1200. If the period always 

ran from the date of the wrong, 

actions by workers previously 

exposed to dangerous chemicals, for 

example, might be time-barred when 

brought years later after the workers' 

injuries manifested themselves. For 

cases involving such latent injuries or 

injuries difficult to detect, courts 

have developed the "discovery rule." 

We adopted the rule in Connors v. 

C-l 

Hallmark & Son Coal Co., ... 935 F.2d 

336, 342 (D.C. Cir. 1991), following 

the lead of the other courts of 

appeals. [Footnote omitted.] The 

II discovery rule" rests on the idea 

that plaintiffs cannot have a tenable 

claim for the recovery of damages 

unless and until they have been 

harmed. Damage claims in cases 

involving hidden injuries or illnesses 

therefore are viewed as not accruing 

until the harm becomes apparent. 

The rule approved in Connors, in 

which we "borrowed" a local statute 

of limitations for a federal claim, is of 

this type--a "discovery of injury" 

rule. [Citation omitted.] Although 

use of the rule has not been restricted 

to personal injury actions, the rule 

has only been applied to remedial, 

civil claims. [Footnote reference 

omitted.] 

The rule EPA sponsors is of an 

entirely different sort. It is a 

II discovery of violation" rule having 

nothing whatever to do with the 

problem of latent injuries. The 

rationale underlying the discovery of 

injury rule--that a claim cannot . 

realistically be said to accrue untIl 

the claimant has suffered harm--is 

completely inapposite. The statute of 

limitations on which EPA would 

engraft its rule is aimed exclusively 

at restricting the time within which 

actions may be brought to recover 

fines, penalties and forfeitures. Fines, 

penalties and forfeitures, whether 

civil or criminal, may be considered a 

form of punishment. [Citation 
omitted.] In an action for a civil 

penalty, the government's burden is 

to prove the violation; injuries or 

damages resulting from the violation 

are not part of the cause of action; the 

suit may be maintained regardless of 

damage. Immediately upon the 

violation, EPA may institute the 

proceeding to have the penalty 

imposed. The penalty provision of 

TSCA ... says just that: /I Any person 

who violates a provision of section 

2614 of this title shall be liable to the 

United States for a civil penalty in an 

amount not to exceed $ 25,000 for 

each such violation." Because 

liability for the penalty attaches at 

the moment of the violation, one 

would expect this to be the time 

when the claim for the penalty "first 

accrued."14 

14 The Supreme Court rejected a 

"discovery of violation" rule in 

Unexcelled Chemical Corp. v. United 

States, 345 U.S. 59 ... (1953), which 

held that an enforcement claim 

accrued at the moment of violation. 

The suit was for liquidated damages 

against a government contractor for 

unlawfully employing child labor. 

The Court held: " "the cause of action 

accrued' ... when the minors were 

employed. That was the violation ... givIng rise to the liability for 

liquidated damages ... A cause of 

action is created when there is a 

breach of duty owed the plaintiff. It is 

that breach of duty, not its discovery, 

that normally is controlling." 345 U.S. 

at 65. 

The Court rejected a discovery of 

the wrong rule in United States v. 

Kubrick, 444 U.S. 111 ... (1979), a civil 

action under the Federal Tort Claims 

Act. In an argument roughly 

analogous to the one EPA makes here, 

Kubrick contended that his claim 

accrued only upon his discovery of 

the "wrong," tnat is, only when he 

C-2 

discovered that the acts inflicting his 

injury constituted medical 

malpractice. After discussing why the 

prevailing case law and the statute's 

legislative history were against 

Kubrick's position, 444 U.S. at 120, the 

Court rejected his proposed rule as 

unworkable and contrary to the 

purposes of statutes of limitations. Id. 

at 123-24. 

EP A's contrary arguments tend to 

disregard the limited role of the court 

in this case. We are interpreting a 

statute, not creating some federal 

common law. The provision before 

us, § 2462, is a general statute of 

limitations, applicable not just to 

EPA in TSCA cases, but to the entire 

federal government in all civil 

penalty cases, unless Congress 

specifically provides otherwise. We 

therefore cannot agree with EPA that 

our interpretation of § 2462 ought to 

be influenced by EPA's particular 

difficulties in enforcing TSCA.15 And 

we cannot understand why Congress 

would have wanted the running of 

§ 2462's limitations period to depend 

on such considerations. An agency 

may experience problems in 

detecting statutory violations 

because its enforcement effort is not 

sufficiently funded; or because the 

agency has not devoted an adequate 

number of trained personnel to the 

task; or because the agency's 

enforcement program is ill-designed 

or inefficient; or because the nature 

of the statute makes it difficult to 

uncover violations; or because of 

some combination of these factors 

and others. In this case, EPA 

suggests a remand for an evidentiary 

hearing on such matters and 

proposes a test: whether, "in the 

exercise of due diligence," EPA 

should have discovered 3M's 
violations earlier than it did. 

[Citation omitted.] The subject 

n1atter seems more appropriate for a 

congressional oversight hearing. We 

seriously doubt that conducting 

administrative or judicial hearings to 

determine whether an agency's 

enforcement branch adequately lived 

up to its responsibilities would be a 

workable or sensible method of 

administering any statute of 

limitations. Nor do we understand 

how any of this relates to the reasons 

why we have a statute of limitations 

in penalty cases. An agency's failure 

to detect violations, for whatever 

reasons, does not avoid the problems 

of faded memories, lost witnesses 

and discarded documents in penalty 

actions brought decades after alleged 

violations are finally discovered. 

Most important, nothing in the 

language of § 2462 even arguably 

makes the running of the limitations 

period turn on the degree of 

difficulty an agency experiences in 

detecting violations. 

When we return to the statutory 

language and ask what Congress 

meant when it required actions to be 

brought within five years from the 

date when a claim for a penalty 

/I accrued," the answer readily 

presents itself. The meaning of this 

portion of § 2462 has been settled for 

more than a century. [Discussion of 

history of statute and case law 

omitted.] 

In light of the legal meaning of 

the word II accrued" in 1839, the 

retention of the word in the 1874 

C-3 

version of § 2462, and its appearance 

in the current statute, we hold that 

an action, suit or proceeding to 

assess or impose a civil penalty must 

be commenced within five years of 

the date of the violation giving rise to 

the penalty. We reject the discovery 

of violation rule EPA advocates as 

unworkable; outside the language of 

the statute; inconsistent with judicial 

interpretations of § 2462; 

unsupported by the discovery of 

injury rule adopted in nonenforcement, remedial cases; and 

incompatible with the functions 

served by a statute of limitations in 

penalty cases. 

15 EPA tells us that violations like 

3M's are inherently undiscoverable 

and that this case involves selfreporting rules. After the incidents 

involved in this case, EPA instituted a 

new certification procedure. Under 

19 c.P.R. § 12.12(a), importers are 

now required to certify that the 

shipment complies with TSCA or that 

TSCA does not apply. The 

certification is sent to EPA after 

inspection by a customs agent. 

Thereafter, EPA can compare the 

certification with its Premanufacture 

Notice and inventory records. Given 

this certification requirement, it may 

be that in future cases EPA could 

invoke the fraudulent concealment 

doctrine to toll the statute of 

limitations. Holmberg v. Armbrecht, 

327 U.s. 392, 90 L. Ed. 743, 66 S.Ct. 582 

(1946). At any rate, EPA's new 

procedure suggests that violations of 

the sort 3M committed are not 

"inherently undiscoverable." See 

ALM Corp. v. EPA, 974 P.2d 380,382 

(9th Cir. 1992). 
.. . 

Addendum D: Electronic Communication from the Secretary 

Regarding Representation 

Fie Edit View Creat. ACtions .. 

"Hairston, Amy· SOL" 

<Halrston.Ainy@DOL.GOV> 

To ~app;;:~we~-;;;;-··'--·-· ..... -.---... ----.. --.------.--....... --------.-

05!10I2007 04:55 PM 

ec 

bce 

SUbject ~.!!!Z.~~~~ LLC dba Yolks Constructors 

History .p This message has been replied 10 

I would not object to the representation in that statement that a recordkeeper is deceased 

._-------_._---- _._- ._--- - - -----~ _ ._._._---_. From: asapper@mwe.com [mallto:~@mwe.com] 

Sent: ThJsday, May 10, 2007 3:43 PM 

To: Hairston, Amy .. SO!.. 

SLtlject: RE: Secret3'y v. AKM LLC cba Volks Constructors 

--------------.----

Context, from previous filing (you didn't object) "In this case, for example. Yolks emp!<>yees and former employees who are ,till alive (one ofVolks' s 

recordkeepers IS deceased) would have to search thell' recoUections of events that occurred as long as four years ago (such as whether a particular ltiJU/')' 

restricted an employee's normal duties on a particular day) to figure out whether a case is recordable." 

I will incorporate edits from here. No objecllon to electronic filing. Please get back to me re the above. 

sor;;;hi9ii'ii9h~~-;;;;~t~;-;;i~~1hi;jo~;;;--- .. ·-. .... ---...... --------.. ----. ----. - .... ------.:-1 ~--OJ fCiffice-:----------, .. ;;:'! g ':::l 

itlst .. tl , '- tJ\} B:9 @) ~ .. 0 ~ @.l ~ cit RE:5ecretary- ~.l<Site I @1I<16.9'>Yl<· .. 1 ~ 18931l3VZ<w··· I.e s !ntotnetEx ... -l F;~3:5SPM 

D-l