IN THE MATTER OF NEW YORK CITY TRANSIT AUTHORITY, RESPONDENT, v. NEW YORK
STATE DEPARTMENT OF LABOR ET AL., APPELLANTS.
88 N.Y.2d 225, 666 N.E.2d 1336, 644 N.Y.S.2d 463 (1996).
March 28, 1996
1 No. 57(1996 NY Int. 59)
Decided March 28, 1996
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Pico Paul Ben-Amotz, for Appellants.
Mary McCorry, for Respondent.
City of New York, amicus curiae.
LEVINE, J.:
During 1988, employees from respondent Department of Labor conducted
health and safety inspections at five facilities in petitioner's
Surface Transit Division. The inspectors found various violations of
the regulations under the Public Employee Safety and Health Act (Labor
Law § 27-a (the PESH Act)) at each facility and issued a Notice of
Violations and Order to Comply for each facility. At follow-up
inspections, the inspectors found that some violations had not been
corrected. Specifically, at five of its facilities, petitioner did not
have available for inspection a list of hazardous chemicals to which
employees might be exposed, as required by 29 CFR
1910.1200(e)(1),(n 1) and, at one facility, petitioner did not
implement a written Respiratory Protection Program, as required by 29
CFR 1910.134(b)(1). The inspectors computed penalties for each
facility pursuant to the penalty-assessment guidelines in the
Department's Field Operations Manual.
Petitioner challenged the citations with respect to all five
facilities, and hearings were conducted before respondent Industrial
Board of Appeals. In two separate orders, the Board upheld the
penalties with respect to all five facilities, but reduced the amounts
assessed because it disagreed with the inspectors' application of the
Department's penalty guidelines.
Petitioner commenced this article 78 proceeding challenging the
Board's determinations and also asserting that the penalty guideline
provisions were unenforceable because they were not filed and
published as a rule or regulation as required by NY Constitution,
SNIPPETS:
IN THE MATTER OF NEW YORK CITY TRANSIT AUTHORITY, RESPONDENT, v.
employees from respondent Department of Labor conducted health and safety inspections at five
The inspectors found various violations of the regulations under the Public Employee Safety
Specifically, at five of its facilities, petitioner did not have available for inspection a
In two separate orders, the Board upheld the penalties with respect to all five facilities,
As to the Department's penalty guidelines, we disagree with the Appellate Division's
We have previously held that "only a fixed, general principle to be applied by an
see also, Matter of Schwartfigure v Hartnett, 83 NY2d 296, 301; Matter of Cordero v Corbisiero, 80
The penalty guidelines at issue vest inspectors with significant discretion, and allow for
While the guidelines cap the maximum amount of daily penalties assessed for serious and
In assessing penalties, inspectors are first directed to determine the gravity of the
Inspectors derive a numerical value for each factor on a scale of one to ten, and are
Rather, "they encompass both fixed and variable factors unique to a facility to be considered
Furthermore, also contrary to the holding of the Appellate Division, Matter of New York State
Labor Law § 27-aauthorizes the imposition of penalties for violations of the PESH Act or the
The statute does not mandate the promulgation of regulations regarding penalties to be
Employers are required to "develop, implement, and maintain at each workplace, a written
While conceding that they did not have a written list of hazardous chemicals available at the
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