Summary
In Matter of New York City Tr. Auth. v. New York State Dept. of Labor (88 N.Y.2d 225, 229 ["NYCTA"]), we held that "only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitutes a rule or regulation" that must be promulgated in conformance with article IV, § 8 of the State Constitution and in substantial compliance with SAPA.
Summary of this case from Matter of Medical Society of the State v. SerioOpinion
Argued February 8, 1996
Decided March 28, 1996
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department.
Dennis C. Vacco, Attorney-General, New York City ( Pico Paul Ben-Amotz, Victoria A. Graffeo, Peter H. Schiff, Daniel F. De Vita and M. Patricia Smith of counsel), for appellants. Mary McCorry, Brooklyn, Martin B. Schnabel and Ellen Deirdre Murphy for respondent.
Paul A. Crotty, Corporation Counsel of New York City ( Stephen J. McGrath and Ellen Ravitch of counsel), for the City of New York, amicus curiae.
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 Violation 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 C.F.R. § 1910.1200 (e) (1), and, at one facility, petitioner did not implement a written Respiratory Protection Program, as required by 29 C.F.R. § 1910.134 (b) (1). The inspectors computed penalties for each facility pursuant to the penalty-assessment guidelines in the Department's Field Operations Manual.
As authorized by Labor Law § 27-a (4), the Department of Labor has adopted Federal safety and health standards and regulations promulgated pursuant to the Federal Occupational Safety and Health Act ( see, 12 N.Y.CRR 800.3).
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 CPLR 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, article IV, § 8 and State Administrative Procedure Act § 102 (2) (b) (i). The Appellate Division granted the petition and annulled the orders. This Court granted the Department leave to appeal, and we now reverse.
As to the Department's penalty guidelines, we disagree with the Appellate Division's conclusion that the guidelines constitute a rule or regulation required by N Y Constitution, article IV, § 8 and State Administrative Procedure Act § 102 (2) (b) (i) to be filed with the Secretary of State and published in the State Register. We have previously held that "only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitute a rule or regulation required by N Y Constitution, article IV, § 8" or State Administrative Procedure Act § 102 (2) (b) (i) to be filed in the office of the Department of State and published in the State Register ( Matter of Roman Catholic Diocese v New York State Dept. of Health, 66 N.Y.2d 948, 951; see also, Matter of Schwartfigure v Hartnett, 83 N.Y.2d 296, 301; Matter of Cordero v Corbisiero, 80 N.Y.2d 771, 772-773). The penalty guidelines at issue vest inspectors with significant discretion, and allow for flexibility in the imposition of penalties, all with the view of imposing the appropriate sanction for the individual offense and offender in the particular case.
While the guidelines cap the maximum amount of daily penalties assessed for serious and nonserious violations, penalties "may be assessed" in any amount up to those statutory limits. In assessing penalties, inspectors are first directed to determine the gravity of the violation based on a weighing of three factors: (1) the probability of injury from the violation; (2) the severity of the injury or illness that could result from the violation; and (3) whether the violation is willful or repeated. Inspectors derive a numerical value for each factor on a scale of 1 to 10, and are directed to use their professional judgment to adjust the penalty scale based on consideration of mitigating and contributing factors. The values obtained for each of the three components are then averaged to obtain a "gravity based quotient". Inspectors determine the per diem penalty by referring to a penalty table, and may reduce the penalty by up to 60% based on the size of the employer, the employer's good faith and the employer's history.
Thus, although the guidelines specify numerical formulas for calculating the ultimate amount of the penalty, they do not establish "a rigid, numerical policy invariably applied across-the-board to all claimants without regard to individualized circumstances or mitigating factors" ( Schwartfigure, supra, at 301). Rather, "they encompass both fixed and variable factors unique to a facility to be considered * * * on a case-by-case analysis" ( Matter of Trustees of Masonic Hall Asylum Fund v Axelrod, 174 A.D.2d 199, 204). The penalty guidelines do not dictate the result; the ultimate amount of the penalty is dependent on inspectors' independent exercise of their professional judgment.
Furthermore, also contrary to the holding of the Appellate Division, Matter of New York State Coalition of Pub. Empls. v New York State Dept. of Labor ( 89 A.D.2d 283, affd 60 N.Y.2d 789) is not controlling. The fact that record-keeping requirements relating to matters of employee safety under the PESH Act were required to be promulgated as a rule or regulation in that case does not mandate that the penalty guidelines at issue here had to be incorporated in a rule or regulation. Labor Law § 27-a (6) authorizes the imposition of penalties for violations of the PESH Act or the safety and health standards promulgated thereunder. The statute does not mandate the promulgation of regulations regarding penalties to be imposed for a violation of the regulatory standards. Instead, the PESH Act leaves it to the Department to opt in favor of the imposition of penalties on a case-by-case basis, including "`establishing a guideline for a case-by-case analysis of the facts'" ( Matter of Roman Catholic Diocese v New York State Dept. of Health, 109 A.D.2d 140, 148 [dissenting in part opn] [quoting Long Is. Coll. Hosp. v Whalen, 68 A.D.2d 274, 276], revd on dissenting opn below 66 N.Y.2d 948, supra).
The Appellate Division alternatively held that the Board's determination upholding the finding that petitioner violated 29 C.F.R. § 910.1200 (e) (1) was unsupported by substantial evidence. We disagree. Employers are required to "develop, implement, and maintain at each workplace, a written hazard communication program * * * which also includes * * * [a] list of the hazardous chemicals known to be present" ( 29 C.F.R. § 1910.1200 [e] [1] [i]). While conceding that they did not have a written list of hazardous chemicals available at the five facilities at issue, petitioner argued and the Appellate Division agreed that the regulation was complied with because petitioner had developed an authoritywide computerized chemical inventory system which was in operation at all of the cited facilities long before the Department's compliance inspections.
The Department and Board construed 29 C.F.R. § 1910.1200 (e) (1) as requiring that chemical inventories be made available and readily accessible to employees to inform them of the hazards inherent in the day-to-day handling of these materials. This construction, pertaining to a matter within the area of expertise of the Department and the Board, appears reasonable ( see, Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459). Moreover, the Board's conclusion that petitioner's computer-stored inventory did not satisfy the regulatory standard is supported by substantial evidence. The record indicates that at one facility, the inspector was told no chemical inventory had been compiled; at another facility, the inspector was not told of any chemical inventory, even in an alternative form; no chemical inventory existed at a third facility; and no written hazard communication programs had been developed or implemented at the remaining two facilities. Thus, employees clearly lacked the access to the inventories that was required by the regulation.
Finally, petitioner's failure to keep a written Respiratory Protection Program at one of its facilities pursuant to 29 C.F.R. § 910.134 (b) (1) was noted in the inspector's report, and petitioner's citation for that violation is supported by substantial evidence.
Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the article 78 petition dismissed.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH and CIPARICK concur.
Judgment reversed, etc.