Friday (6/19) was the final day for participants from OSHA’s public hearing on its proposed cranes and derricks rule to submit comments to the agency; by my count, seven organizations responded.  The Edison Electric Institute  offered the lengthiest document (94 pages), and it was peppered with provocative language, such as

“…these and many other vexing questions arise from OSHA’s convulated proposed regulatory scheme.”

the rule “…would de-stabilize settled principles [and] would be highly ill-advised….could stimulate more litigation…and [create] an avalanche of state and local laws.”

 What is EEI’s objection?

EEI is the association of U.S. shareholder owned electric companies, and they want  [I think] OSHA to exempt the work of and equipment used by power line crews from the cranes and derricks rule.  But, that’s not all they want.  They want OSHA to insist that its rule preempt any state or local laws governing cranes and derricks.  They assert that the U.S. Supreme Court ruled in Goode v. National Solid Wastes Management Ass’n (1992) that the OSH Act

“‘precludes any state regulation of an occupational safety and health issue with respect to which a federal standard has been established unless a state plan has been submitted and approved pursuant to Section 18(b).” 

The City of New York’s Department of Buildings disagrees.  In their comments to OSHA, they remind us:

“New York City has more skyscrapers over 500 feet tall and is more densely populated than any other city in the United States.  The cranes that build these skyscrapers tower over occupied buildings, streets and sidewalks.  Because of the obvious danger that improper cranes and derrick assembly and use pose to public safety, New York City has for decades regulated this segment of the construction industry.”

“The City licenses riggers who oversee crane and derrick assembly; it licenses the operators who lift the concrete, steel and building materials and equipment into those skyscrapers; and it reviews the plans submitted by engineers for crane and derrick erection and use. 

In NY City’s letter to OSHA, the Commissioner urges the agency to revise its statement of “federalism” to explicitly declare that the rule:

“…does not preempt state and local public safety laws where cranes and derricks pose a risk to public safety as long as such laws do not conflict with OSHA standards.” 

They judiciously offer OSHA specific language to insert in the rule, and provide several examples where OSHA rules co-exist with state and local laws (e.g., fire protection stnadards, means of egress.)

EEI disagrees.  They write:

it is understood “…that in a state that does not have an [OSHA State Plan], the state cannot regulate an occupational safety and health issue that is addressed by a federal OSHA standard.”

EEI adds:

“EEI appreciates that localities have responded to the recent spate of serious crane accidents by investing considerable expertise and resources in developing regulation of cranes and derricks.  Nonetheless, nothing that OSHA could say, or forbear from saying in the preamble to a final rule would change the principle…that the OSH Act ‘precludes any state regulation of an occupational safety and health issue with respect to which a federal standard has been established unless a state plan has been submitted and approved pursuant to Section 18(b). [505 U.S. 88, 100 (1992). ]

 The City of New York’s Building Department interprets that 1992 U.S. Supreme Court ruling differently, noting:

“…state and local public safety laws have incidental positive impact on worker safety—whether seat belt laws, local speed limits, or as here, local building codes—provides no logical or legal basis for preemption.  OSHA itself has implicitly acknowledged continued validity of various state and local laws that address the same issues as related federal standards and should do so in this proceeding.  As stated [in the ruling]..’state laws of general applicability (such as laws regarding traffic safety or fire safety) that do not conflict with OSHA standards and that regulate the conduct of workers and nonworkers alike would generally not be pre-empted.'”

When I read NY City’s arguments, they make a strong case:

“…The erection, dismantling and operation of cranes and derricks pose a substantial risk to public safety in dense urban areas.  OSHA should not preempt state and local regulations that do not interfere with OSHA’s federal regulatory objectives when preemption will leave the public exposed to unacceptable risks.”

“…In the tight confines of New York City, mobile cranes are forced to park on and operate from the street, leaving no room for error.  …OSHA has an extremely limited inspector staff to police the construction industry.  In New York, OSHA employs only a handful of inspectors for the metro-politan area, and these must oversee all OSHA-covered industries, and not just the 300 cranes operating in the City or the thousands of active construction sites that are at work in the City on any particular day.

“…City inspectors have uncovered bent crane struts, improper foundations and foundation supports, improper lifting and rigging practices, and jerry-rigged repairs…   Clearly, preempting public safety officers from performing their duties in connection with crane operations in a large municipality would be extraordinarily unwise.

So it goes in our system of worker health and safety rulemaking.  Interested parties have their chance(s) to share their expertise and perspective on a proposed rule.  But ultimately, it is up to OSHA’s Asst. Secretary (usually in consultation with the Secretary of Labor and her advisors) to decide:  issue a rule or wait. 

In this last (hopefully) go-around on the crane rule, other commenters included the Int’l Union of Operating Engineers (IUOE) (59-pages), the AFL-CIO Building Trades Department, the National Commission for the Certification of Crane Operators (NCCCO), and the National Organization for Competency Assurance.  The IUOE says it supports the rule, but recommends revisions to provisions covering universal voice commands, pre-erection inspection, retention of the current rule prohibiting the suspension of unmanned loads, among others.  IUOE notes its:

“…primary concern throughout this process has been to ensure that the certification standards in proposed 1926.1427 do not permit employers to bypass true third party verification; that training of non-certified operators during the pre-certification is safe; that training mills that teach to the test do not undermine the integrity of certification testing; and that effective state and local licensing is not derailed by the establishment of national minimum certification standards.”

What’s next for OSHA’s crane rule?  Ultimately, it is OSHA’s duty to develop a final rule that is “reasonably necessary and appropriate.”  This means a final rule that

1. substantially reduces a signficant risk of material harm
2. is technologically and economically feasible for the affected industry as a whole
3. employs the most cost-effective means of achieving its goal, and
4. is supported by the evidence in the rulemaking record.

When I break down the steps this way, the task doesn’t seem so daunting.  Certainly with this last round of comments, as well as issues raised during the March 2009 public hearings, there are decisions that OSHA officials need to make. 

• What is an appropriate phase-in period for operator certification?
• What should be the minimum standards for certification?
• How to distinguish between training and certification?
• Should exemptions be granted for cranes used in power line work?
• Should OSHA adopt NY City’s language ‘federalism’ language?
• Etc., etc., etc.

 The next steps are OSHA’s.  It needs to make decisions on remaining issues, prepare the final rule and be prepared to defend  its decisions in the Court of Appeals.   (The OSH Act offers affected persons or parties an opportunity for judicial review.)  

Lawsuits challenging OSHA rules are typical and it is something the agency expects.  The real challenge for OSHA leaders in this new Administration is to avoid the trap of over-thinking, over-writing, over-analyzing the final rule, especially the preamble.   If you can answer 1-4 above, and you can demonstrate that the final rule is a logical outgrowth of the proposed rule, dots the i’s and cross the t’s and issue it as a final rule.  I know a special family in St. Louis who are eager to attend the signing ceremony.  I hope they have that opportunity before the end of 2009.

Celeste Monforton, MPH, DrPH received a comment from Mr. Rick Power on March 26, 2009 (10:12 pm) in response to her blog post “More delays on OSHA’s crane rule”.  He wrote: “On Tuesday February 3rd, 2009 my nephew was fatally injured while dismantling a 100 ton crane at a construction site located in St. Louis, MO.  He was a 21 year old apprentice.”  His nephew was Steven Lillicrap.  Celeste is grateful that her blog connects her with family-member victims of workplace hazards, and that she had the opportunity to meet Diane Lillicrap and Rick Power on Worker Memorial Day 2009.