Crane collapses continue to occur at construction sites around the nation. In recent months, collapses have occurred at sites in Kansas City, Miami, New York City, and Las Vegas, and have resulted in multiple fatalities. Congress’ response to these fatalities has been to criticize OSHA and urge strong enforcement action and new construction safety standards.
Congress’ response was similar with regard to fatalities in other industries. For example, Congress held hearings on combustible dust were held after the Imperial Sugar explosion in Georgia, and the BP explosion in Texas City resulted in multiple hearings. In addition, the Senate Health, Employment, Labor and Pensions Committee recently held a hearing on the purportedly low OSHA penalties in cases involving fatalities (the AFL-CIO reports a $6000 average for fiscal 2003 – 2006). Democrats (and some Republicans) at these hearings criticized OSHA for failing to issue significant citations to employers in the wake of fatal accidents, and also complained about OSHA’s inability or unwillingness to issue new standards. The House has also passed legislation mandating that OSHA issue a combustible dust standard.
OSHA responded to these hearings by increasing enforcement efforts. Specifically, OSHA reinvigorated a national emphasis program for facilities with combustible dust and implemented a national emphasis program for refineries. These programs are on-going, and the refinery program will result in the inspection of every refinery under federal OSHA’s jurisdiction by the end of next year. OSHA also issued record fines in the BP case, and will likely do the same in the Imperial Sugar matter.
Two lessons are evident from this enforcement pattern. First, a significant accident in a particular industry that makes the news will almost inevitably result in attention from Congress, including hearings, legislation, or both. Second, OSHA will do everything it can to ensure that when Congress does hold a hearing or criticize OSHA for being “soft” on enforcement, OSHA can point to citations it has issued in the relevant industry. As such, a fatality at a single worksite may result in major enforcement actions across an entire industry, and OSHA will not hesitate to make a particular employer an “example” used to show Congress that OSHA means business. In short, OSHA has never been quite so sensitive to pressure from Congress.
This article discusses OSHA’s response to the recent rash of crane accidents. As discussed further below, OSHA has not issued revised construction standards for cranes and derricks even though a draft prepared by experts was issued four years ago. In response to significant pressure from Congress, OSHA will try to issue the revised standards as soon as possible. Also, OSHA is likely to issue significant fines when investigations of the crane incidents are completed. Finally, state and local government entities are taking their own actions to deal with crane safety.
Congressional Pressure
Given the numerous accidents and fatalities over the past year, Congress and organized labor have been sharply critical of OSHA and the Bush Administration and OSHA for its four-year delay in releasing revised construction standards for cranes and derricks.
On June 24, the House Committee on Education and Labor held a hearing on whether OSHA is failing to enforce its construction standards. In his opening statement, Committee Chairman Rep. George Miller (D-CA) stated that the Committee had “repeatedly raised serious concerns about OSHA’s inability or unwillingness to issue needed health and safety standards…” Chairman Miller also questioned whether OSHA has the resources to enforce its standards effectively, and opened the hearing by stating the following:
We will also examine today whether OSHA has sufficient resources to do its job. In the boroughs of Manhattan and Queens, for example, federal OSHA has only 20 inspectors to cover thousands of construction sites – and some of those inspectors are new trainees. We have nothing but praise for the dedication and work that those few valiant inspectors perform every day, but they are faced with an impossible task, and the root cause of that problem lies here in Washington. We will also examine the role that cities can play in making construction sites safer. Because of the lack of federal OSHA resources in the city, New York City decided to step in to address the hazards that the city’s construction boom has presented. The city reasoned that its actions not only protect workers, but also protect members of the public who may be walking, driving or living underneath a tower crane. By our count – and one of our witnesses can confirm this today – the city has more than 20 times more inspectors on the ground than OSHA has. While we commend New York City for its activity in this area, it is unclear whether other, smaller cities have the same ability to put resources into construction safety that New York has.
On May 30, Senator Hillary Clinton (D-NY) sent a letter to OSHA Administrator Edwin Foulke asking why OSHA has not yet published a proposed rule for crane operations. Clinton called the delay “inexplicable and inexcusable.” On June 13, Reps. Carolyn B. Maloney (D-NY), Lynn Woolsey (D-CA), and George Miller, along with 14 other co-signers, sent their own letter to Mr. Foulke criticizing the delay and demanding that the proposed rule be released as soon as possible. The letter said that the “delay is unacceptable and has proved deadly.”
OSHA’s Efforts to Revise the Construction Standards for Cranes and Derricks
OSHA established the Crane and Derrick Negotiated Rulemaking Committee in 2003 to revise the existing construction standards. In June 2004, the Committee sent a draft regulation to OSHA. To date, OSHA has yet to issue the revised standards, and has said little publicly about the delay. The latest information from OSHA indicates that the proposed standards have been sent to the Office of Management and Budget – a typical step in the rulemaking process – and that they would be released for public comment in August 2008. Given that the notice-and-comment process for OSHA standards is notoriously lengthy, it may be unlikely that the final rule is released in 2008. Moreover, if a legal challenge is filed – which is common – the issuance of a final standard could be even further delayed.
According to the draft submitted to OSHA by the Committee, the proposed standards would require project owners, general contractors or other controlling entities to ensure that preparations for crane set-up and operations meet OSHA’s requirements. Crane operators would have to be certified by a testing organization, such as the National Commission for the Certification of Crane Operators (“NCCCO”). The proposed standards also include new requirements for crane assembly and operations near power lines and provisions regarding crane assembly and disassembly. Additional provisions include:
· Signal requirements and signal person qualifications
· Inspections
· Operator qualifications and certification
· Qualification standards for maintenance and repair workers
· Training
· Design, construction and testing
· Requirements for tower cranes
· Requirements for overhead and gantry cranes
Although OSHA seems to be pushing to complete the revised standards quickly in response to pressure from Congress, it is not clear that the revisions will address the issues that are causing collapses. Bill Parsons, an OSHA construction safety specialist, was recently quoted as saying: “If you’re looking for this standard to address all the issues with cranes across the nation, you’re going to be sorely disappointed.”
State and Local Provisions – Are They Preempted?
Cities have taken their own steps to strengthen standards relating to crane safety. For example, New York City proposed legislation that would mandate the issuance of a “safety control number” for any work requiring a permit. If building inspectors find safety violations, then the building permit may be suspended or revoked. The registration system would also enable the city to track the safety performance of building contractors over time. In addition, the proposed revisions would mandate certain training for crane operators and, for worksites with a history of safety issues, allow for the assignment of a Building Department project safety monitor.
Similarly, the Washington State Department of Labor and Industries is set to adopt a rule on crane operator and inspector certification by November, with an effective date of January 1, 2009. Unlike New York, Washington has its own OSHA-approved state plan, and the state rather than federal OSHA has jurisdiction over workplace safety.
Miami-Dade County has also tried to implement crane safety measures. However, on May 22, a federal court issued a preliminary injunction preventing the enforcement of a county ordinance with crane safety requirements. Judge Ursula Ungaro of the U.S. District Court for the Southern District of Florida found that major sections of the county ordinance would likely be preempted by the federal Occupational Safety and Health Act (OSH Act).
The OSH Act gives federal OSHA exclusive jurisdiction over worker safety and health, unless a state submits a plan for developing standards and enforcing them to federal OSHA for approval. If federal OSHA determines that the state plan is “at least as effective as” the federal OSHA system, then the state plan is approved and federal OSHA cedes jurisdiction to the state. Twenty-one states and Puerto Rico have approved state plans, and three other states enforce safety and health standards only in state and local government workplaces.
States without approved state plans, like Florida and New York, are not permitted to issue or enforce standards on safety and health issues that are addressed in federal standards. The same restriction applies to local government entities such as cities or counties. As such, the Miami ordinance is likely preempted, while Washington state is free to amend its standards because it has an approved state plan. The New York City provisions have not been implemented yet, but portions may be preempted. Specifically, federal OSHA’s crane standard clearly includes training provisions, and local New York City provisions requiring training may therefore be preempted. The proposed system of tying building permits to safety is less likely to be preempted because OSHA obviously does not have standard on building permits, and New York City is therefore free to impose restricts on building permits.
Conclusion
OSHA is under enormous pressure to issue significant citation with large fines to every employer who has a worksite fatality, particularly if the accident results in significant publicity. The recent crane accidents are likely to be no exception. To the extent construction operations use cranes, they would be well-served to ensure that they are in compliance with existing standards and should also consider taking extra measures, such as additional training and inspections, to help them avoid accidents. Finally, state and local provisions may be preempted by the federal OSH Act, and construction employers should consider this possibility in the event of state or local enforcement actions.
Perhaps in response to Chairman Miller’s comments about OSHA enforcement resources, OSHA recently sent about a dozen additional OSHA compliance officers to New York City.
A link to the draft standard may be found at: http://dockets.osha.gov/vg001/V046A/00/48/45.pdf.
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