Construction Industry Foiled in Its Attempt to Avoid Complying with New York City’s Regulations Governing Cranes, Derricks and Hoisting Equipment By on May 14, 2013

In Steel Institute of New York v. City of New York, the Steel Institute of New York, advancing the interests of the construction industry, sued the City of New York challenging local statutes and regulations that govern the use of cranes, derricks, and other hoisting equipment in construction and demolition. The Steel Institute argued that they are preempted by the Occupational Safety and Health Act (the “Act”) and federal standards promulgated by the Occupational Safety and Health Administration (“OSHA”). The United States District Court for the Southern District of New York (McMahon, J.) dismissed the suit on summary judgment, finding no preemption. The Circuit Court affirmed (12-276, 2013 WL 1876537 (2d Cir. May 7, 2013)).

The City's statutes and regulations provide a comprehensive framework to regulate the design, construction, and operation of cranes, derricks, and other hoisting equipment in the City.  The Steel Institute clearly sought to relieve the construction industry from having to comply with the City’s standards that were more stringent, and most likely more costly, than OSHA’s. If the City’s regulations were found to be directed towards workers’ safety, they would have been preempted, and thus unenforceable.

What saved the City’s regulations was the extraordinarily high density of people and property in the City such that in most cases construction worksites abut or spill over into adjoining lots and public streets.  The District Court stated: “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; they inevitably damage surrounding buildings and risk injuring people in their homes and on the street.” “Cranes therefore pose a unique risk to public safety in New York City—at least when they are used away from isolated commercial or industrial yards.”

In the District Court, the City adduced evidence of local accidents caused by cranes, derricks, and other hoists.  For the period 2004 through 2009, the City cited fifteen instances of hoisting equipment failures that caused injury to twenty-seven members of the public and fifteen workers, and the deaths of one member of the public and eight workers.  

The Circuit Court concluded that the City regulations are directed at public safety even though they achieve the goal of worksite safety, in part and incidentally, by regulating the conduct of workers.  New York's crane regulations apply all over the City, not just in workplaces or construction sites.

The federal government regulates worker safety through the Occupational Safety and Health Act, which is administered by OSHA. OSHA has promulgated regulations concerning the use of cranes, derricks, and hoisting equipment.  Among other things, the federal rules regulate:

• ground conditions that support cranes and similar equipment;

• procedures and conditions for design, assembly, disassembly, operation, testing, and maintenance of the machinery;

• proximity of the equipment to power lines during assembly, operation, and disassembly;

• proximity of employees to the machinery and hoisted loads;

• signaling between workers;

• fall protection for workers; and

• worker qualification, certification, and training.

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