Crane Regs

May/June 2008

High Anxiety

A lack of uniform crane safety standards and spotty enforcement create apprehension across the industry

By Angelle Bergeron

A Miami-Dade County, Fla., ordinance regulating crane inspection and operator certification passed on March 18, prompting at least one lawsuit and calling attention to the need for updated federal regulations.

“If the county ordinance is not overturned, it will be impossible to meet the standards and we could have a mishmash of different and varied crane ordinances across the state’s 67 counties,” says Len Mills, executive vice president of the South Florida Associated General Contractors. “There will be projects that won’t get off the ground. These are not good economic times now, and we need all the projects we can keep to keep people employed.”

Crane companies are already threatening to pull out of the county, says Bruce Whitten, Florida Crane Owners’ Council chairman and vice president of Fred’s Crane Service Inc. of Orlando. “If other counties in Florida decide to adopt legislation with similar language, it will shut down construction in Florida,” Whitten says.

Suiting Up

That’s why both South Florida AGC and the Florida Crane Owners’ Council, along with the Florida East Coast Chapter of Associated Builders and Contractors and the Construction Association of South Florida, filed a complaint on May 1 in U.S. District Court for the Southern District of Florida seeking a preliminary and permanent injunction against Miami-Dade County.

The suit alleges that Miami-Dade County failed to get approval for the ordinance from the Dept. of Labor’s Occupational Safety and Health Administration, a requirement that has been supported by previous U.S. Supreme Court rulings, says Brian A. Wolf, attorney and partner with Smith, Currie & Hancock LLP of Fort Lauderdale.

“Because of that, the Miami-Dade ordinance is preempted by federal OSHA regulations,” Wolf says. The county also is in violation of the supremacy clause of the United States Constitution, “which states that federal law preempts any state regulation of any area over which Congress has expressly or implied exercised exclusive authority,” Wolf says.

The suit also claims that the county ordinance is “destructive to AGC members’ ability to earn a living because it is impossible for them to comply with the unreasonable standards that are set into the law,” Wolf says.

Although South Florida AGC was well represented on the commissioner’s advisory committee when the ordinance was drafted, the abundance of government officials and local inspectors stanched any would-be opposition to the proposed legislation, Mills says. “When you fear retaliation from the building inspector, that can mean millions and millions of dollars,” he adds.

Changes in Latitudes

The most contentious part of the legislation would allow building inspectors ample discretionary latitude to suspend or revoke building permits at any construction site that fails to comply with the new standards.

The pressure for broader crane regulations increased after a March 28 crane collapse that killed two construction workers in Miami. (Photo courtesy of AP / Wideworld)

By the second week in May, the county had already shut down six projects due to noncompliance, Whitten says. “At least with OSHA, there is oversight and appeals process, but there is nothing in place here,” he adds.

The county ordinance also grants building officials the discretion to deem a tower crane a permanent structure capable of withstanding 146-mph winds. Currently, tower cranes are built to withstand 126-mph winds.

Adapting cranes to meet the standards of the ordinance would make them more rigid, more susceptible to damage and actually increase risk, Whitten says. “There is not one crane in the world that meets the standards set forth by the Miami-Dade ordinance,” he says.

Furthermore, the language of the ordinance would require at least three more jumps than the existing federal standards, Whitten adds. “So basically, the ordinance is increasing risk three times,” he says.

Two crane-accident fatalities in March, one in New York and another in Miami just a week after the ordinance passed, underscored the need for improved regulations. However, both of those accidents were attributed to complications during jumping, Whitten adds.

Although many in the industry agree the new Miami-Dade law will cripple construction, they also say such regulation is unavoidable if the state and OSHA won’t step up and upgrade antiquated regulations and improve safety.

A 205-ft-tall tower crane fell and crashed into nearby buildings, killing seven people and injuring 24 others, in New York on March 15. (Photo courtesy of AP / Wideworld)

South Florida AGC initially supported the local ordinance in the absence of statewide legislation, which the chapter has lobbied for in the previous two sessions of the legislature. The most recent attempt at establishing a uniform, statewide crane safety standard, House Bill 609, failed in the state Senate on May 2.

South Florida AGC will continue to pursue uniform, statewide legislation that includes certification of inspectors, operators and nationally recognized standards, Mills says. “It is our feeling that there ought to be a national standard because cranes and crane operators deliver their services all over the United States, not only in Miami,” he says.

Seeking Uniformity

Currently, 15 states and six cities have licensing requirements for crane operators, with nine of those states recognizing or requiring the National Commission for the Certification of Crane Operators standards. “Crane operators shouldn’t have to be unduly penalized by different criteria from county to county and state to state,” says Graham Brent, NCCCO executive director. “The cranes themselves don’t change from state to state.”

OSHA’s existing rules for cranes and derricks have changed little since they were originally adopted in 1971. OSHA is currently “in the latter stages of developing a proposed rule,” says Claude Knighten in OSHA’s office of communications. The change in the standards was prompted by “the significant number of fatalities associated with the use of cranes in construction and the considerable technological advances in equipment,” Knighten says.

Once the proposed rule is complete, there will be a public comment period, a review period and then preparation of a final rule.

“The report from the Crane and Derricks Advisory Committee has been sitting in OSHA for more than three years,” Brent says. “It may not be published even as a draft review until the end of this year.”

The Miami-Dade County ordinance is proof the industry can’t wait that long. AGC of America has representatives on the national board working on OSHA’s draft proposed standard for cranes and derricks.

Michele Myers, AGC of America’s director of safety and health, expressed concern that any new operator certification will be sluggish and cost prohibitive for small contractors. “There is concern that NCCCO is the only body out there accredited on the national level to certify crane operators,” Myers says.

The nature and frequency of crane inspections will increase in the changing regulatory climate in Miami and elsewhere. (Photo courtesy of Crane Safety & Inspections, Inc.)

When California implemented the requirement, even though many contractors waited until the final days before the June 1, 2005, deadline to achieve certification, NCCCO managed to meet the challenge, Brent says. “We went from testing 200 a year in California to certifying 12,000 in the two-year period,” he says.

Fearing organized labor would be squeezed out of the process, a local California union became accredited to offer certification training, says Bo Bradley, director of safety, health and regulatory services for AGC of California in West Sacramento. “I never heard of any small contractor going out of business due to having to comply with this regulation, and accidents have definitely gone down,” she says.

Adopting national certification standards can actually save contractors money in the long run, says Bill Smith, president of claims and risk management of Nation Builders Insurance Services, Atlanta. “If they are a company that mandates all operators be certified under NCCCO, we give them up to a 10% discount on their premium because we understand that certified operators are definitely more knowledgeable and safer,” Smith says.

After a tower crane collapse in November 2006, the Washington state Legislature pushed a series of laws regulating all types of cranes and operators.

“No one truly knew what it took to operate a crane legally and safely in Washington, but we couldn’t get labor, management and the state all to agree on the next step,” says Mandy Kime, director of safety for AGC of Washington in Seattle. “Now the legislature has come up with a stringent and more daunting rule than what we would have done had everyone come to the table together. Because it’s legislatively mandated, we have no say in the final rule.”