Us District Judge Rules Most Of Miamidade Crane Safety Law Superseded By Osha Regulations
Written by Risa Polansky on January 22, 2009
By Risa Polansky
Federal law takes precedence over a Miami-Dade crane safety measure enacted last year, a federal judge ruled last week, blocking much of the county ordinance.
Commissioners in March approved the law, designed to provide safer conditions at construction sites after a rash of local crane accidents.
Four industry associations sued, citing several issues with the local law.
The federal Occupational Safety and Health Act pre-empts the county measure, US District Judge Ursula Ungaro wrote in a Jan. 14 decision.
It followed a May order to temporarily block much of the county measure.
"If the court were to allow the crane ordinance to stand in its entirety, then it would subject employers to duplicative regulation," the new decision says.
The county sees it differently.
"The federal court and the plaintiffs have argued that the crane safety is preempted by OSHA," Assistant County Attorney Eduardo Gonzalez said. "Our position is that the [county's] wind-load requirement is not, per se, a regulation of worker safety."
The county aims to provide for public safety during hurricanes, he said, protecting everyone in the vicinity of the cranes, not just construction workers.
"So it’s really a public safety issue, not a worker safety issue, which is covered by OSHA," he said.
Judge Ungaro disagreed.
"The court is not persuaded by this argument," she wrote.
Though the county says its aim is to protect the public from cranes collapsing during storms, the 14 crane accidents the county referred to in creating its law happened between January and May — well outside the bounds of hurricane season, the decision says.
"Moreover, the county has never identified a single crane incident resulting in an injury to a member of the general public (as opposed to a construction worker) that occurred during the hurricane months," the judge wrote. "Thus, the court finds the county’s argument that the hurricane wind-load standard is aimed solely at protecting the public and to "prevent the catastrophic collapse of a tower crane and hoisting equipment during the hurricanes’ seems to the court to be disingenuous."
Mr. Gonzalez acknowledged that "it’s not an easy call."
In spearheading the effort to pass the law, County Commissioner Audrey Edmonson said she had residents’ safety in mind.
She did not return a call for comment for this article but in a late 2007 interview said she convened a Crane and Heavy Equipment Advisory Committee in response to "a lot of incidents we began to have in Miami after we started the construction boom… when it comes down to someone’s safety and their life, I thought it was only being responsible."
She at the time acknowledged the federal guidelines but said the then-in-the-works county law would serve a different purpose.
"OSHA has been the overseer of the cranes, and normally when they come in is after an incident has occurred," she said. "What we’re trying to do now is be proactive before an incident occurs."
But industry organizations — plaintiffs in the suit — cited several concerns on top of the county superseding federal guidelines.
"The industry had a problem, because, for one, the county ordinance rather than enhancing safety actually raised safety concerns for the industry," said Peter Dyga, vice president of government affairs for Associated Builders and Contractors, Florida East Coast Chapter. "We felt the ordinance was actually less safe."
The county’s law sets a wind-load standard that would require adjusting the crane’s height more often — a dangerous procedure, he said.
Mr. Dyga said the county measure "basically was unenforceable."
It would have forced cranes to shut down or operators to find "creative ways, if you will, around trying to comply with the law," making it "a commerce issue," he said.
The judge focused her decision on the legality of duplicating federal law.
She upheld the "non-pre-empted" provisions of the county measure, including hurricane preparedness measures for hoisting equipment, some crane-to-crane communication regulations and most of the county’s enforcement measures and penalties.
The county is still deciding whether to appeal the ruling, attorney Mr. Gonzalez said.
In the meantime, the industry plans to continue pushing for federally approved statewide crane safety regulations, Mr. Dyga said.
The Occupational Safety and Health Administration is also working to fast track its proposed new cranes and derricks rules.