OSHA safety complaints dismissed because of untimely citation

An administrative law judge of the Occupational Safety and Health Review Commission dismissed safety violations issued against Earth Developers Inc. after the citation was received eight months after the inspection — an unreasonable time lapse, according to the ruling.

The U.S. Occupational Safety and Health Administration conducted an inspection of Fargo, North Dakota-based Earth Developers’ worksite in Valley City, North Dakota, on Oct. 6, 2016, and subsequently issued a citation alleging three serious violations with a total proposed penalty of $5,976, according to the ruling.

At issue was the timing. OSHA generated the citation on March 15, 2017, but the company did not receive it until June 8. OSHA failed to adequately track the certified mailing with the U.S. Postal Service, according to the ruling.

Judge Brian A. Duncan ruled the circumstances warranted a dismissal.

“Although the actions of the USPS are out of both parties’ control, the court is not convinced that (OSHA) actually placed the March 15, 2017, citation in the mail,” the judge said. “Proper case management and mail handling procedures are completely within an OSHA area office’s control. Just as inadequate mail handling procedures are typically no excuse for an employer filing a notice of contest late, inadequate mail handling procedures are no excuse for (OSHA) in notifying the employer of a citation within… a reasonable time and within statutory limitations.”

A trial scheduled for Feb. 27 has been canceled as a result of the judge vacating the citations.

The administrative law judge’s decision became a final order of the commission Thursday.

The attorney for Earth Developers could not be immediately reached for comment.