Steel Inst. York v. City of N.Y.

• Decision Date: 07 May 2013
• Docket Number: Docket No. 12–276.
• Citation: 716 F.3d 31
• Parties: STEEL INSTITUTE OF NEW YORK, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

716 F.3d 31

STEEL INSTITUTE OF NEW YORK, Plaintiff–Appellant,

v.CITY OF NEW YORK, Defendant–Appellee.

Docket No. 12–276.

United States Court of Appeals,Second Circuit.

Argued: Dec. 20, 2012.

Decided: May 7, 2013.

Brian A. Wolf, Smith, Currie & Hancock, LLP, Fort Lauderdale, FL, (J. Daniel Puckett, Smith, Currie & Hancock, LLP, Atlanta, GA, on the brief), for Appellant.

Tahirih M. Sadrieh (Edward F.X. Hart and Karen Selvin, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, for Appellee.

M. Patricia Smith, Solicitor of Labor, U.S. Department of Labor, Washington, D.C. (Joseph M. Woodward, Charles F. James, and Allison G. Kramer, on the brief), for the Secretary of Labor as Amicus Curiae in Support of Appellee.

Before: JACOBS, Chief Judge, CALABRESI and SACK, Circuit Judges.

DENNIS JACOBS, Chief Judge:

The Steel Institute of New York, advancing the interests of the construction industry, sues 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 argues that they are preempted by the OccupationalSafety 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. We affirm.

I

The Steel Institute sought declaratory and injunctive relief invalidating the City regulations listed in the margin ¹ on the grounds that they are preempted by the Act and OSHA's regulations, violate the dormant Commerce Clause, and violate the Steel Institute's procedural and substantive due process rights.

Cross-motions for summary judgment were stayed pending the ongoing amendment of OSHA's crane regulations, which were published August 9, 2010, and went into effect November 8, 2010. The preamble of the amended regulations added a statement on “federalism,” which referenced this lawsuit and disclaimed preemption of “any non-conflicting local or municipal building code designed to protect the public from the hazards of cranes.” Cranes and Derricks in Construction, 75 Fed. Reg. 47,906, 48,129 (Aug. 9, 2010). The cross-motions were re-filed with addenda dealing with the amendments. The Department of Labor filed an amicus curiae brief in the district court in support of the City's position, as it has here.

The district court granted the City's cross-motion for summary judgment in December 2011, chiefly relying on Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992). See Steel Inst. of N.Y. v. City of N.Y., 832 F.Supp.2d 310, 320–32 (S.D.N.Y.2011). Although the court recognized that the City regulations directly and substantially regulate worker safety and health in an area where an OSHA standard exists (which usually would trigger preemption), the court concluded that the City regulations are saved from preemption under Gade because they are laws of “general applicability.” Id. at 323–27. “[C]onsiderable deference” was given to the Secretary of Labor's interpretation of the preemptive effect of the Act and the OSHA regulations. Id. at 328. The district court also summarily dismissed the Commerce Clause and due process claims. Id. at 332–37. The Steel Institute's appeal challenges only the ruling on preemption.

We review de novo an order granting summary judgment, drawing all factual inferences in favor of the non-moving party. Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.2011). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). No material fact is at issue in this case.

II

The federal government regulates worker safety through the Occupational Safety and Health Act, which is administered by OSHA. See29 U.S.C. §§ 651–78. The Act authorizes promulgation of occupational safety or health standards, id. § 655, that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment,” id. § 652(8). It is significant to our analysis that the Act does not protect the general public, but applies only to employers and employees in workplaces. See, e.g., id. § 651(b)(1).

In the absence of a federal standard, the Act allows states to regulate occupational safety or health issues. Id. § 667(a). If there is a federal standard in place, a state may submit a “State plan” for the Secretary's approval by which the state “assume[s] responsibility for development and enforcement” of occupational safety and health standards in the area covered by the federal standard. Id. § 667(b)–(c).

OSHA has promulgated regulations concerning the use of cranes, derricks, and hoisting equipment: 29 C.F.R. § 1926 Subpart CC governs “Cranes and Derricks in Construction,” and Subpart DD governs “Cranes and Derricks Used in Demolition and Underground Construction.” The federal standards apply to “power-operated equipment, when used in construction, that can hoist, lower and horizontally move a suspended load,” including various types of cranes, derricks, trucks, and other hoisting equipment. 29 C.F.R. § 1926.1400(a).

Among other things, the federal rules regulate:

• ground conditions that support cranes and similar equipment, id. § 1926.1402;

• procedures and conditions for design, assembly, disassembly, operation, testing, and maintenance of the machinery, id. §§ 1926.1403, .1417, .1412, .1433;

• proximity of the equipment to power lines during assembly, operation, and disassembly, id. §§ 1926.1407–.1411;

• proximity of employees to the machinery and hoisted loads, id. §§ 1926.1424–.1425;

• signaling between workers, id. §§ 1926.1419–.1422;

• fall protection for workers, id. § 1926.1423; and

• worker qualification, certification, and training, id. §§ 1926.1427–.1430.

OSHA has authority to enter and inspect regulated worksites, and may enforce the regulations through citations, monetary penalties, criminal penalties, and by seeking injunctive relief. See, e.g.,29 U.S.C. §§ 662, 666.

III

The City's crane regulations ² are part of the Building Code and are enforced by the New York City Department of Buildings (“DOB”). See N.Y.C. Admin. Code §§ 28–101.1, –201.3. “The purpose of [the City's construction code, which includes the Building Code,] is to provide reasonable minimum requirements and standards ... for the regulation of building construction in the city of New York in the interest of public safety, health, [and] welfare....” Id. § 28–101.2.

The statutes at issue in this case are codified in Chapter 33 of the Building Code, which concerns “Safeguards During Construction or Demolition.” At the outset, Chapter 33 delineates its scope: “The provisions of this chapter shall govern the conduct of all construction or demolition operations with regard to the safety of the public and property. For regulations relating to the safety of persons employed in construction or demolition operations, OSHA Standards shall apply.” Id. § 28–3301.1.

In the district court, the City adduced evidence of local accidents caused by cranes, derricks, and other hoists. J.A. 134–97. 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. J.A. 136. Relying on a declaration from a DOB engineer, the district court found that “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.” Steel Inst., 832 F.Supp.2d at 314. “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.” Id.

Generally, the City requires that hoisting equipment “be installed, operated, and maintained to eliminate hazard to the public or to property.” ³ N.Y.C. Admin. Code § 28–3316.2. Specific requirements on hoisting equipment include:

• following an accident, the owner or person in charge of hoisting equipment must immediately notify the DOB and cease operation of the equipment, id. § 28–3316.3;

• hoisting equipment must: be designed, constructed, and maintained in accordance with DOB rules; be approved by the DOB; and display appropriate permits, id. §§ 28–3316.4–.5, .8;

• hoist ropes must be regularly inspected and replaced in accordance with DOB rules, id. § 28–3316.6; and

• operators of hoisting equipment must be qualified to operate the equipment and must lock it before leaving, id. § 28–3316.7.

A separate set of requirements applies more specifically to cranes and derricks. See id. § 28–3319. These include a requirement that “[n]o owner or other person shall authorize or permit the operation of any crane or derrick without a certificate of approval, a certificate of operation and a certificate of on-site inspection.” Id. § 28–3319.3; see also id. § 28–3319.4–.6. The crane and derrick requirements do not apply to “cranes or derricks used in industrial or commercial plants.” Id. § 28–3319.3(6).

Even more stringent requirements are imposed on “tower” and “climber” cranes. ⁴See id. § 28–3319.8. For these contraptions, a licensed engineer must submit a detailed plan for “erection, jumping, climbing, and dismantling.” Id. § 28–3319.8.1. Before operating such a crane, the general contractor must conduct a “safety coordination” meeting with a licensed engineer, the crane operator, and other designated individuals. Id. § 28–3319.8.2. In addition, the DOB publishes “Reference Standards” (“RS”) governing this equipment.⁵

To enforce this regulatory scheme, the DOB issues a stop-work order if it finds that any crane, derrick, or hoisting machine is “dangerous or...