MUNICIPAL LAW/EMPLOYMENT LAW
The Second Department confirmed the determination of the NYS Industrial Board of Appeals finding that petitioner-town had willfully violated provisions of the Code of Federal Regulations (CFR) concerning the safety of employees required or allowed to work in confined spaces. Here a town worker and a volunteer fireman died of asphyxiation after entering a 20-foot-deep manhole:
“If [an] employer decides that its employees will not enter permit [-required confined] spaces, the employer shall take effective measures to prevent its employees from entering the permit spaces” and shall, inter alia, warn exposed employees of the existence and location of such spaces and the danger posed by them (29 CFR 1910.146[c]; see 29 CFR 1910.146[c]). Further, “[i]f the employer decides that its employees will enter permit spaces, the employer shall develop and implement a written permit space program that complies with [29 CFR 1910.146]” (29 CFR 1910.146[c]).
Here, the evidence established that the petitioner was aware of the requirements of the subject regulations. Although the petitioner allegedly restricted its DPW [Department of Public Works] employees from entering confined spaces, a practice existed in which its DPW employees entered such confined spaces. The evidence also showed that the petitioner did not implement a written permit space program for volunteer firefighters. In addition, the evidence demonstrated that the petitioner’s management made little or no effort to communicate the requirements of the subject regulation to its lower level supervisors and employees. Thus, contrary to the petitioner’s contention, substantial evidence existed in the record to support the IBA’s determination that the petitioner willfully violated 29 CFR 1910.146(c)(3) and (4) … . Matter of Village of Tarrytown v NYS Dept of Labor, 2015 NY Slip Op 00543, 2nd Dept 1-21-15