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Environmental services firm can contest OSHA citation after water-damage delay

Posted On: Oct. 19, 2017 10:33 AM CST

Environmental services firm can contest OSHA citation after water-damage delay

The Occupational Safety and Health Review Commission reversed an administrative law judge’s decision to deny relief to an environmental services company that failed to timely file a notice of contest to a citation issued by the U.S. Occupational Safety and Health Administration.

In June 2016, OSHA issued a two-item citation to La Porte, Texas-based Evergreen Environmental Services after an inspection of a worksite in Pasadena, Texas. The company acknowledged it received the citation but was delayed in responding when its office was affected by water and mold damage that took more than three weeks to repair, according to case records in Secretary of Labor vs. Evergreen Environmental Services.

When the company’s safety analyst was able to return to her office for work nearly a month later, the citation was discovered among documents that had been removed from her office due to water damage. The company mailed its notice of contest the next day to OSHA’s Houston South Area Office, case records show.

The company was informed that the 15-day contest period for the citation had already expired and was therefore untimely. Evergreen filed a motion for relief saying its failure to timely file was excusable because of the water damage at its headquarters. The Secretary of Labor acknowledged receipt of the motion for relief and was not opposed to the motion, according to case records.

On June 9, an administrative law judge denied the motion, acknowledging the water damage but saying the company exhibited “gross carelessness” by failing to “maintain orderly office procedures for handling important documents,” case records show.

The commission said Oct. 12 that the company did have procedures in place to handle documents, and “that these procedures did not result in the timely filing of Evergreen’s NOC does not mean the procedures were inadequate. Rather, the record supports Evergreen’s claim that its procedures were hampered by the unanticipated water damage to its offices,” the commission said.

“Nothing in the record supports the judge’s finding of ‘gross carelessness’ on Evergreen’s part,” the commission said. “Finally, we find it significant, although not controlling, that the Secretary does not oppose Evergreen’s motion for relief; therefore, he does not dispute any of the company’s contentions. Under these circumstances, we conclude that Evergreen has established that its untimely filing was excusable.”

The commission reversed the judge’s decision, reinstated Evergreen’s notice of contest and remanded the case to the ALJ for further proceedings.

“We are grateful for a well-reasoned decision that provides us with the opportunity to have a hearing on the merits of the citations,” said Jack Wisdom, a partner with Houston law firm Martin, Disiere, Jefferson & Wisdom L.L.P., which represented Evergreen.