Federal law does not pre-empt New York City from regulating construction sites, the 2nd Circuit ruled, noting construction hazards endanger both workers and the general public in the country’s most densely populated city.
In a 2009 federal complaint , the Steel Institute of New York claimed that “the city’s crane regulations are preempted” by Occupational Safety and Health Administration (OSHA) rules “because they impose occupational health and safety standards in an area where federal standards already exist.”
A federal judge granted the city summary judgment, however, and the a three-judge panel of the 2nd Circuit affirmed Tuesday.
“Because New York City is the most densely populated major city in the United States, construction worksites necessarily abut, or even spill over into adjoining lots and public streets,” Chief Judge Dennis Jacobs wrote for the panel.
He added that “cranes therefore pose a unique risk to public safety in New York City.”
There were 15 instances of crane or hoisting equipment failure between 2004 and 2009, according to the ruling. Those failures injured 27 members of the general populous and 15 construction workers, and killed one passerby and eight workers.
“There is a strong presumption against preemption when states and localities ‘exercise their police powers to protect the health and safety of their citizens,'” Jacobs wrote.
New York City’s rules are written into chapter 33 of the Building Code. They include requiring that “only designated, specially qualified workers” operate cranes and hoisting equipment, and that companies to submit a detailed plan before tower or climber cranes are used.
“Cranes, which can be as tall as 1800 feet, and move loads as heavy as 825 tons, do not confine themselves to the property on which they are being used when they break, or worse, collapse,” Jacobs wrote. “They inevitably damage surrounding buildings and risk injuring people in their homes and on the street.”
City and state regulations like those of New York that “regulate the conduct of workers and nonworkers alike,” and “do not conflict with OSHA standards,” cannot be pre-empted by the federal rules because they have “general applicability” and are not “directed at workplace safety,” OSHA’s domain, according to the ruling.
NYC’s regulations “do not conflict with OSHA standards,” Jacobs added.
At most, they only “provide additional or supplemental requirements on some areas regulated by OSHA,” the decision states.
Author; LUCILE SCOTT