Trico Technologies Corporation: Secretary of Labor vs. Trico Technolgies Corp., Docket No. 91-0110, Jan. 19, 1996

Date: Jul 01, 1996

The failure to abate OSHA citations can carry heavy penalties:  up to $7,000 per day for each violation which is not corrected within the required time period.  This case is of interest because it involves a Failure-to-abate (FTA) penalty totalling more than $300,000 which was issued more than two years after the end of the original abatement period.

Trico was inspected in late 1990 by an OSHA industrial hygienist who noticed that certain cases of dermatitis were not recorded on the OSHA Form 200 that was posted in the plant.  Approximately two years prior to that inspection, OSHA had cited the company for failure to provide protective equipment to prevent skin contact with a chemical used in the plant called Roll Form 20.  This citation was issued in January 1988, with an abatement date of February 2, 1988.  On February 4, 1988, the company reported to OSHA that it had corrected the citation -- requiring that the latex gloves provided by the company be worn under the cloth gloves which were already provided to prevent contact with the chemical -- and that supervisors had been instructed to enforce the use of the equipment.  OSHA and Trico hotly disputed whether the citation had actually been abated, but the Administrative Law Judge (ALJ) did not make a finding of fact in this regard.

Based on these representations, OSHA closed the file administratively in 1988 without conducting a follow-up inspection.  OSHA and Trico litigated the question of whether OSHA could cite for FTA more than two years after the original abatement date.  Trico argued that the statutory prohibition in section 9 of the OSH Act against citing employers for conditions which existed more than "six months following the occurrence of any violation" and that citations be issued with "reasonable promptness" prevented the Secretary from issuing the FTA after such a long hiatus.  The Commission rejected that view.  Those OSH Act provisions, it said, apply by their terms only to citations, and not to the issuance of notices of FTA. 

The Commission also rejected the ALJ's determination that the OSHA Field Operations Manual (FOM) evidenced OSHA's policy to close files administratively after six months after the citation becomes a final order of the Commission.  The FOM instructs OSHA personnel to conduct follow-up inspections as promptly as resources allow, but OSHA does not have the resources to visit all cited employers for this purpose.  Here, the inspection which led to the discovery of the conditions in question was a routine inspection, not a follow-up visit at all.  Only after the IH reviewed the records did OSHA reopen the 1988 file, and consider the question of whether the original citation had in fact been abated.  As the Commission noted, OSHA discovered the FTA violation by accident, as part of the general schedule, programmed inspection.  The timing, the Commission said, was not unreasonable or unfair to Trico, and thus, the ALJ's decision was wrong.   

One final note is in order.  Rather than decide whether the FTA violation had occurred, the Commission remanded the case to the ALJ for a reconsideration of the underlying allegations.  The charges, as noted, were hotly disputed by Trico.  Whether the original citation had in fact been abated was unclear.  This could have been a case of having spent the time and effort in 1988 to correct the problem, only to have it re-emerge as staff and employees became complacent. 

The decision points out the importance of continuing efforts to see that conditions like the ones described in the original citation are corrected.  In cases like this, it is not surprising that procedures slip.  To paraphrase a famous politician, eternal vigilance is the price of safety.  Employers must continually renew their efforts to assure that safety procedures and rules are followed, and to continuously emphasize their importance to employees.

This article appeared in Compliance Magazine (July 1996) and it is reprinted with permission of Compliance Magazine. Copyright © 1996 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.