After 12-Year Legal Battle, OSHA Gets 'Bupkis'

Feb. 9, 2005
The government let $3 million in penalties from a recordkeeping violator slip away due to the secretary of labor's failure to provide proper abatement information to the company, according to the Occupational Safety and Health Review Commission (OSHRC).

Despite the high dollar figure, most observers familiar with the case doubt that the Jan. 21 decision will have much lasting impact on the government's enforcement of recordkeeping requirements.

OSHRC vacated more than $3 million in penalties against Hercules Inc. -- which OSHA assessed due to the company's alleged failure to abate previous recordkeeping violations -- because the secretary of labor failed to provide adequate notice to the employer about the nature of the violations.

In 1989 OSHA cited Hercules, which manufactures explosives at its Kenvil, N.J., facility, for failing to record 189 injuries and illnesses on its OSHA 200 logs for 1987, 1988 and 1989, and the parties reached a settlement on these citations in 1991. As part of the settlement agreement, the company agreed to pay a fine and to abate the violations.

After a follow-up inspection in 1993, OSHA alleged Hercules failed to add 121 injuries to its 1988 and 1989 logs and failed to supply OSHA with the OSHA 101 forms for those injuries. The agency, using its "egregious" policy of citing instance-by-instance, proposed $3,080,000 in penalties. The agency proposed an additional $60,000 fine because the company failed to certify the OSHA logs properly.

Prosecution of case 'irrational' and 'absurd'

The three-member commission ruled unanimously for the company on the failure to abate citations because the secretary of labor "was never able to provide Hercules with the minimum information that would allow it to abate the recordkeeping citations." The commission observed, for example, that OSHA Area Director Robert Kulick declined to give Hercules the names of the employees who suffered the unrecorded injuries.

The decision reproached the secretary of labor's prosecution of the case as "irrational" and "absurd." The panel also ruled 2-1 that the employer did not commit a certification violation, with Commissioner Thomasina Rogers dissenting.

The commission decision means that after devoting 12 years to litigating the case, the government is left with nothing.

"This case should have been settled," commented Michael Connolly of Connolly, Redgers, & Scharman, an attorney who represented Hercules. "But Washington's egregious penalty group thought it was all about them. They weren't fair. They wasted a lot of resources and now they got 'bupkis.'"

Case should have little impact on recordkeeping enforcement

A spokesman for the Labor Department said its attorneys are reviewing the case to determine whether to appeal the decision.

Connolly asserted that the decision was about both recordkeeping and abatement issues and that it should also make the government more cautious in negotiating future egregious penalties.

But attorneys in private practice familiar with the case, who spoke on the condition of anonymity, doubted the decision would have much impact on recordkeeping enforcement or the egregious penalty policy.

"I'm not a lawyer, but I don't think this case has anything to do with recordkeeping and it should have no impact on OSHA's egregious penalty policy," commented Bob Whitmore, who heads OSHA's division of recordkeeping requirements. He believed the appeal dealt only with the failure to abate issue.

Government still collected some penalties

Whitmore agreed with the decision, contending OSHA was wrong not to have given Hercules the information it needed to abate. "I have no idea why we litigated this case. Nobody in the solicitor's office asked me about it," he explained.

OSHA's recordkeeping chief also dissented from Connolly's contention that the government got nothing.

"Connolly's just tooting his own horn," said Whitmore. "We got more than $100,000 from the original settlement for the recordkeeping violations."

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