Text For Citation: 01 Item/Group: 001 Hazard: FALLING

New York State Labor Law Article 2, Section 27-a(3)(a)(1): The employer did not furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protections to the lives, safety or health of its employees. In applying this paragraph, fundamental distinctions between private and public employment have been recognized. a) NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION OWL'S HEAD WASTE WATER TREATMENT PLANT GRIT AND SCUM BUILDING 6700 SHORE ROAD BROOKLYN NEW YORK 11209 The employer failed to keep the workplace free of a recognized hazard that caused death and serious physical harm to its employees, to wit: the employer modified three Serpentix Pathwinder Conveyers (serial numbers PO7-0981 C-1, PO7-0981 C-2, and PO7-0981 C-3) (hereinafter referred to as "the Conveyors") used by its employees by installing casters on such Conveyors without engaging or employing a professional engineer with regard to such modification, for example, without involving the engineer in the design, installation oversight, testing, supervision and/or inspection of such modifications, and against the recommendation of the manufacturer who warned the employer, on or about August 27, 2008, that due to the employer's installation of the aforementioned casters the manufacturer could not "guarantee the rigidity of the conveyor track in future movements. Moreover, the employer failed to keep the workplace free of a recognized hazard that caused death and serious physical harm to its employees, to wit: the employer allowed its employees to move the modified Serpentix Pathwinder Conveyors referenced above without adequately training its employees in the use, movement, and of the modified equipment and the identification of hazards in the movement of such modified equipment. The above described conditions are hazards likely to cause death or serious physical harm in that the hazard caused the death of one employee and serious physical harm to another employee in that on January 9, 2009 one of the Conveyors, Serpentix Pathwinder Conveyer serial # PO7- 0981 C-1, while being moved by a maintenance crew, fell due to the instability caused by the hazard, killing Mr. Genarro Montello and seriously injuring Mr. Joseph DiGiovanni in his attempt to rescue Mr. Montello. The hazard created by the modification of the other two conveyors is and was similarly likely to cause death or serious physical harm but fortunately have not yet done so. The employer's violation was willful in that there were alternative means of addressing the employer's operational needs in a manner which could have provided reasonable and adequate protections for the lives, safety, or health of its employees, including but not limited to: accepting the manufacturer's offer of August 28, 2008 to design and fabricate a support system that would permit use of the casters at a relatively minimal cost; consulting with the manufacturer prior to adding the casters as to an appropriate design for the movement of the Conveyors; purchasing equipment that had been originally designed and manufactured to meet the employer's needs; or making only those changes previously approved by the Manufactureror by a professional engineer. The employer willfully failed to adopt such alternatives but rather committed the violations cited above which resulted in the death of one employee and serious physical harm to another.