St. Thomas Gas Company
Late notice of contest dismissed
Apply this to your situation
This order from 1994 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
OSHA issued St. Thomas Gas Company two citations on November 26, 1993, which the company received on December 1. The 15-working-day contest period expired on December 22, but the company's contest letter was dated December 29 and OSHA received it on January 3, 1994. St. Thomas Gas did not respond to the Secretary's motion to dismiss and gave no sufficient reason for filing late. The judge found no evidence that OSHA caused the delay through deception or improper procedures and no basis for relief under Federal Rule of Civil Procedure 60(b). He dismissed the notice of contest and affirmed the citations, penalties, and abatement dates as issued. The decision does not identify the cited standards or penalty amounts.
Decision snapshot
- Cited standard(s): No specific OSHA standard is identified in the decision.
- Outcome: Procedural. The late notice of contest was dismissed, leaving both citations, their penalties, and their abatement dates affirmed as issued.
- Key point: An employer that misses the 15-working-day contest deadline must show a recognized basis for relief; an unexplained late filing is insufficient.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMiSSlON
One Lafayette Centfu9
1120 20th Street, NoHI.- 9th Floor
Washington, DC 200364419
PHWE
COM(202)dobblW
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SECRETARY OF LABOR
Complainant
V. OSHRC DOCKET
NO. 94-0136
ST. THOMAS GAS COMPANY
Respondent.
NOTICE OF DOCKETING
OF ADmSTR4TIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re rt in the above referenced case was
docketed with the Commission on Marcr 22, 1994. The decision of the Judge
will become a final order of the Commission on April 21, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW
Any such etition should be received by the Executive Secretary on or before
April 11, P994 in order to ermit sticxent time for its review. See
Commission Rule 91, 29 3 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
Date: March 22, 1994
DOCKET NO. 94-0136
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mi& Esq.
Counsel for Re 'onat Trial Liti ation
Office of the SOet‘dtor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Patricia Rodenhausen, w a
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 70?
New York, NY 10014
Hector Pe ero, President
St. Croix 8 as Company
Plot 20
Post Office Box 5961
St. Croix, VI 00823
lrvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Healt%
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00017984998:02
.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEWCOHMISSION
SECRETARY OF LABOR, .
.
.
.
Complainant, ..
..
v. .. Docket No. 94-0136
..
ST. THOMAS GAS CO.,INC., .
l
.
.
.
b
Respondent. .
l
.
.
.
By motion dated February 3, 1994, the Secretaryhm
moved to dismiss the Respondent’s notice of contest not being a8
timely filed under Section 10 of the Act. The Respondent did not
file a response to the motion.
The record demonstrates that two citations were issued
to the Respondent on November 26, 1993, and received on
D$izember
. 1, 1993. under Section lo(a) of the Act, 29 U.S.C.
659(a), an employer must notify the Secretary that it intends to
contest the citations or proposed penalties within fiftsen(l5)
working days of its receipt. The Respondent had until December
22 9 1993, to file its notice of contest, but did not do so,
filing a letter. dated December 29, 1993, and received by 3OSHA on
January 3, 1994 l No sufficient reason wds given for the late
filing. There is no 8Vid8nC8 that the delay in filing wa8 caused
bY “the %cretary’s deception or failure to follow proper
0 .
procedures.” mc Mare-. v- Ok a 524 F2d
476 (5th Cir., 1975), nor is there any evidence that the Rsspon-
dent- is entitled to any relief under Rule 60 (b) of the Federal
Rules of Civil Procedure.
Accordingly, the Secretary’s motion to dismiss
the
Respondent’s notice of contest is GRANTED. IT IS FURTHER ORDERED
that the citation(s), penalties, and the abatement dates are ’
AFFIRMED as issued.
IRVING SOtfFlER
Judge, OSHRC
DATED: MR211991
Washinaton, D.C.
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