Can a state or local government adopt a law to protect the general public from injury in construction catastrophes that is more stringent than OSHA’s regulations to protect workers in similar mishaps?

Opposed to the tighter restrictions of New York City’s new crane statutes – adopted in 2009 after two fatal tower crane accidents – the Steel Institute of New York (SINY) took the city’s Department of Buildings (DOB) to court. Last December, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York tossed aside SINY’s arguments, saying it is a “manifest absurdity” to suggest that city building codes cannot regulate crane use more stringently than OSHA.

Citing a 1992 Supreme Court decision involving two state statutes in Illinois (Gade v. National Solid Waste Management Association), SINY asserted that NYC’s ordinance was “preempted” by a 2010 OSHA crane regulation adopted under the OSH Act. The DOB and U.S. Solicitor of Labor M. Patricia Smith (who, coincidentally, lived in New York when the two cranes collapsed killing a number of workers and residents) responded that federal workplace safety law trumps state and local rules only if those rules lack an important public safety purpose that goes beyond protection of workers.

According to McMahon, virtually everything that DOB regulates has some impact on worker safety, but that cannot mean that DOB is barred from addressing any issues of broader public safety. “It simply cannot be the case that DOB’s power to keep buildings from falling on people and other buildings – via rules that also help keep construction workers and crane operators safe – is superseded by the existence of OSHA regulations governing safety on a construction site.”

The crowded nature of New York City was apparently relevant to the court’s decision. The Judge drew a distinction from a Miami-Dade County (FL) ordinance on wind loads for cranes that the Eleventh Circuit Court of Appeals ruled invalid due to federal preemption. The county had adopted the ordinance due to concerns about the risk of crane collapses during hurricanes, but the appeals court invalidated it because “construction sites are closed to the public, [and] the county failed to identify a single incident in which a crane injured a member of the general public during a hurricane.”

Although NYC construction sites are also closed to the public, “If a crane falls in New York City,” McMahon wrote, “someone is almost always there to hear it – and be hit by it.”

New York City Building Commissioner Robert LiMandri welcomed the decision, saying, “As a result of new laws, strict enforcement and more industry cooperation, construction operations are safer than ever before. This decision is the right decision because it means a safer job site – and a safer city – for everyone.”

SINY has not said whether it will appeal the ruling.

[Steve Clark]