Steel Institute of New York v. City of New York , 716 F.3d 31 ( 2013 )

12-276-cv
Steel Institute of New York v. City of New York
1
2 UNITED STATES COURT OF APPEALS
3
4 FOR THE SECOND CIRCUIT
5
6 August Term, 2012
7
8
9 (Argued: December 20, 2012 Decided: May 7, 2013)
10
11 Docket No. 12-276
12
13 - - - - - - - - - - - - - - - - - - - -x
14
15 STEEL INSTITUTE OF NEW YORK,
16
17 Plaintiff-Appellant,
18
19 - v.-
20
21 CITY OF NEW YORK,
22
23 Defendant-Appellee.
24
25 - - - - - - - - - - - - - - - - - - - -x
26
27 Before: JACOBS, Chief Judge, CALABRESI and SACK,
28 Circuit Judges.
29
30 The Steel Institute of New York appeals the judgment of
31 the United States District Court for the Southern District
32 of New York (McMahon, J.), which granted the City of New
33 York’s cross-motion for summary judgment and dismissed the
34 complaint, alleging that the City’s regulation of cranes and
35 other hoisting equipment is preempted by federal law. For
36 the following reasons, we affirm.
1 BRIAN A. WOLF, Smith, Currie &
2 Hancock, LLP, Fort Lauderdale,
3 Florida (J. Daniel Puckett,
4 Smith, Currie & Hancock, LLP,
5 Atlanta, Georgia, on the brief),
6 for Appellant.
7
8 TAHIRIH M. SADRIEH (Edward F. X.
9 Hart and Karen Selvin, on the
10 brief), for Michael A. Cardozo,
11 Corporation Counsel of the City
12 of New York, New York, New York,
13 for Appellee.
14
15 M. Patricia Smith, Solicitor of
16 Labor, U.S. Department of Labor,
17 Washington, D.C. (Joseph M.
18 Woodward, Charles F. James, and
19 Allison G. Kramer, on the
20 brief), for the Secretary of
21 Labor as Amicus Curiae in
22 Support of Appellee.
23
24
25 DENNIS JACOBS, Chief Judge:
26
27 The Steel Institute of New York, advancing the
28 interests of the construction industry, sues the City of New
29 York challenging local statutes and regulations that govern
30 the use of cranes, derricks, and other hoisting equipment in
31 construction and demolition. The Steel Institute argues
32 that they are preempted by the Occupational Safety and
33 Health Act (the “Act”) and federal standards promulgated by
34 the Occupational Safety and Health Administration (“OSHA”).
35 The United States District Court for the Southern District
2
1 of New York (McMahon, J.) dismissed the suit on summary
2 judgment. We affirm.
3
4 I
5 The Steel Institute sought declaratory and injunctive
6 relief invalidating the City regulations listed in the
7 margin1 on the grounds that they are preempted by the Act
8 and OSHA’s regulations, violate the dormant Commerce Clause,
9 and violate the Steel Institute’s procedural and substantive
10 due process rights.
11 Cross-motions for summary judgment were stayed pending
12 the ongoing amendment of OSHA’s crane regulations, which
13 were published August 9, 2010, and went into effect November
14 8, 2010. The preamble of the amended regulations added a
15 statement on “federalism,” which referenced this lawsuit and
16 disclaimed preemption of “any non-conflicting local or
17 municipal building code designed to protect the public from
18 the hazards of cranes.” Cranes and Derricks in
19 Construction, 75 Fed. Reg. 47,906, 48,129 (Aug. 9, 2010).
20 The cross-motions were re-filed with addenda dealing with
1
N.Y.C. Admin. Code §§ 28-3316.1-.6, .7.1-.8, 3319.1,
.3-.8.7, .8.8(3)-(4), .8.8(6)-(7), .9-.9.2; Reference
Standard 19-2 §§ 3.0-8.1, 9.0, 10.0, 13.1-21, 22.2-30.0.
See J.A. 2.
3
1 the amendments. The Department of Labor filed an amicus
2 curiae brief in the district court in support of the City’s
3 position, as it has here.
4 The district court granted the City’s cross-motion for
5 summary judgment in December 2011, chiefly relying on Gade
6 v. National Solid Wastes Management Ass’n, 505 U.S. 887 (1992). See Steel Inst. of N.Y. v. City of N.Y., 832 F.
8 Supp. 2d 310, 320-32 (S.D.N.Y. 2011). Although the court
9 recognized that the City regulations directly and
10 substantially regulate worker safety and health in an area
11 where an OSHA standard exists (which usually would trigger
12 preemption), the court concluded that the City regulations
13 are saved from preemption under Gade because they are laws
14 of “general applicability.” Id. at 323-27. “[C]onsiderable
15 deference” was given to the Secretary of Labor’s
16 interpretation of the preemptive effect of the Act and the
17 OSHA regulations. Id. at 328. The district court also
18 summarily dismissed the Commerce Clause and due process
19 claims. Id. at 332-37. The Steel Institute’s appeal
20 challenges only the ruling on preemption.
21 We review de novo an order granting summary judgment,
22 drawing all factual inferences in favor of the non-moving
4
1 party. Costello v. City of Burlington, 632 F.3d 41, 45 (2d
2 Cir. 2011). Summary judgment is appropriate when “there is
3 no genuine dispute as to any material fact and the movant is
4 entitled to judgment as a matter of law.” Fed. R. Civ. P.
5 56(a). No material fact is at issue in this case.
6
7 II
8 The federal government regulates worker safety through
9 the Occupational Safety and Health Act, which is
10 administered by OSHA. See 29 U.S.C. §§ 651-78. The Act
11 authorizes promulgation of occupational safety or health
12 standards, id. § 655, that are “reasonably necessary or
13 appropriate to provide safe or healthful employment and
14 places of employment,” id. § 652(8). It is significant to
15 our analysis that the Act does not protect the general
16 public, but applies only to employers and employees in
17 workplaces. See, e.g., id. § 651(b)(1).
18 In the absence of a federal standard, the Act allows
19 states to regulate occupational safety or health issues.
20 Id. § 667(a). If there is a federal standard in place, a
21 state may submit a “State plan” for the Secretary’s approval
22 by which the state “assume[s] responsibility for development
5
1 and enforcement” of occupational safety and health standards
2 in the area covered by the federal standard. Id. § 667(b)-
3 (c).
4 OSHA has promulgated regulations concerning the use of
5 cranes, derricks, and hoisting equipment: 29 C.F.R. § 19266 Subpart CC governs “Cranes and Derricks in Construction,”
7 and Subpart DD governs “Cranes and Derricks Used in
8 Demolition and Underground Construction.” The federal
9 standards apply to “power-operated equipment, when used in
10 construction, that can hoist, lower and horizontally move a
11 suspended load,” including various types of cranes,
12 derricks, trucks, and other hoisting equipment. 29 C.F.R.
13 § 1926.1400(a).
14 Among other things, the federal rules regulate:
15 • ground conditions that support cranes and similar
16 equipment, id. § 1926.1402;
17
18 • procedures and conditions for design, assembly,
19 disassembly, operation, testing, and maintenance of the
20 machinery, id. §§ 1926.1403, .1417, .1412, .1433;
21
22 • proximity of the equipment to power lines during
23 assembly, operation, and disassembly, id.
24 §§ 1926.1407-.1411;
25
26 • proximity of employees to the machinery and hoisted
27 loads, id. §§ 1926.1424-.1425;
28
29 • signaling between workers, id. §§ 1926.1419-.1422;
30
6
1 • fall protection for workers, id. § 1926.1423; and
2
3 • worker qualification, certification, and training,
4 id. §§ 1926.1427-.1430.
5 OSHA has authority to enter and inspect regulated worksites,
6 and may enforce the regulations through citations, monetary
7 penalties, criminal penalties, and by seeking injunctive
8 relief. See, e.g., 29 U.S.C. §§ 662, 666.
9
10 III
11 The City’s crane regulations2 are part of the Building
12 Code and are enforced by the New York City Department of
13 Buildings (“DOB”). See N.Y.C. Admin. Code §§ 28-101.1,
14 -201.3. “The purpose of [the City’s construction code,
15 which includes the Building Code,] is to provide reasonable
16 minimum requirements and standards . . . for the regulation
17 of building construction in the city of New York in the
18 interest of public safety, health, [and] welfare . . . .”
19 Id. § 28-101.2.
20 The statutes at issue in this case are codified in
21 Chapter 33 of the Building Code, which concerns “Safeguards
22 During Construction or Demolition.” At the outset, Chapter
2
Although the City regulations are referenced in this
opinion as “crane regulations,” they apply to other
equipment as well, including derricks and hoists.
7
1 33 delineates its scope: “The provisions of this chapter
2 shall govern the conduct of all construction or demolition
3 operations with regard to the safety of the public and
4 property. For regulations relating to the safety of persons
5 employed in construction or demolition operations, OSHA
6 Standards shall apply.” Id. § 28-3301.1.
7 In the district court, the City adduced evidence of
8 local accidents caused by cranes, derricks, and other
9 hoists. J.A. 134-97. For the period 2004 through 2009, the
10 City cited fifteen instances of hoisting equipment failures
11 that caused injury to twenty-seven members of the public and
12 fifteen workers, and the deaths of one member of the public
13 and eight workers. J.A. 136. Relying on a declaration from
14 a DOB engineer, the district court found that “because New
15 York City is the most densely populated major city in the
16 United States, construction worksites necessarily abut, or
17 even spill over into adjoining lots and public streets.”
18 Steel Inst., 832 F. Supp. 2d at 314. “Cranes therefore pose
19 a unique risk to public safety in New York City--at least
20 when they are used away from isolated commercial or
21 industrial yards.” Id.
22
8
1 Generally, the City requires that hoisting equipment
2 “be installed, operated, and maintained to eliminate hazard
3 to the public or to property.”3 N.Y.C. Admin. Code
4 § 28-3316.2. Specific requirements on hoisting equipment
5 include:
6 • following an accident, the owner or person in charge
7 of hoisting equipment must immediately notify the DOB
8 and cease operation of the equipment, id. § 28-3316.3;
9
10 • hoisting equipment must: be designed, constructed,
11 and maintained in accordance with DOB rules; be
12 approved by the DOB; and display appropriate permits,
13 id. §§ 28-3316.4-.5, .8;
14
15 • hoist ropes must be regularly inspected and replaced
16 in accordance with DOB rules, id. § 28-3316.6; and
17
18 • operators of hoisting equipment must be qualified to
19 operate the equipment and must lock it before leaving,
20 id. § 28-3316.7.
21 A separate set of requirements applies more specifically to
22 cranes and derricks. See id. § 28-3319. These include a
23 requirement that “[n]o owner or other person shall authorize
24 or permit the operation of any crane or derrick without a
25 certificate of approval, a certificate of operation and a
3
The City regulations apply broadly to “hoisting
equipment,” defined as “[e]quipment used to raise and lower
personnel and/or material with intermittent motion.” N.Y.C.
Admin. Code § 28-3302.1. That includes “power operated
machine[s] used for lifting or lowering a load,” including
but not limited to “a crane, derrick, cableway and hydraulic
lifting system, and articulating booms.” Id.
9
1 certificate of on-site inspection.” Id. § 28-3319.3; see
2 also id. § 28-3319.4-.6. The crane and derrick requirements
3 do not apply to “cranes or derricks used in industrial or
4 commercial plants.” Id. § 28-3319.3(6).
5 Even more stringent requirements are imposed on “tower”
6 and “climber” cranes.4 See id. § 28-3319.8. For these
7 contraptions, a licensed engineer must submit a detailed
8 plan for “erection, jumping, climbing, and dismantling.”
9 Id. § 28-3319.8.1. Before operating such a crane, the
10 general contractor must conduct a “safety coordination”
11 meeting with a licensed engineer, the crane operator, and
12 other designated individuals. Id. § 28-3319.8.2. In
13 addition, the DOB publishes “Reference Standards” (“RS”)
14 governing this equipment.5
4
A tower crane is a crane that is mounted on a
vertical mast or tower, and a climber crane is a crane
supported by a building that can be raised or lowered to
different floors of the building. Id. § 28-3302.
5
For example, RS 19-2 regulates the design,
construction, and testing of “power operated cranes and
derricks.” Mobile cranes constructed prior to October 2006
must comply with standards promulgated by the American
National Standards Institute (“ANSI”) in 1968. RS 19-2
§ 4.1.1; see ANSI Standard B30.5 (1968). Mobile cranes
constructed after October 2006 must comply with one of two
standards promulgated in 2004. RS 19-2 § 4.1.2; see ANSI
Standard B30.5 (2004); European Comm. for Standardization
CEN EN 13000 (2004).
10
1 To enforce this regulatory scheme, the DOB issues a
2 stop-work order if it finds that any crane, derrick, or
3 hoisting machine is “dangerous or unsafe.” RS 19-2 § 9.1.
4 In sum, the City’s statutes and regulations provide a
5 comprehensive framework to regulate the design,
6 construction, and operation of cranes, derricks, and other
7 hoisting equipment in the City.
8
9 IV
10 The Steel Institute argues that the City’s crane
11 regulations are preempted by the Act and OSHA regulations
12 because they impose occupational health and safety standards
13 in an area where federal standards already exist. The City
14 responds that its regulations are not preempted under the
15 analysis in Gade v. National Solid Wastes Management Ass’n,
16 505 U.S. 88 (1992), and that, even if they are, they are
17 saved by the exception afforded by Gade for laws of general
18 applicability.
19 Preemption can be either express or implied. Id. at
20 98. Implied preemption may take the form of field
21 preemption (if the federal scheme is so pervasive as to
22 displace any state regulation in that field) or conflict
11
1 preemption (if state regulation makes compliance with
2 federal law impossible or otherwise frustrates the
3 objectives of Congress). Id.; see also N.Y. SMSA Ltd.
4 P’ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir.
5 2010) (per curiam).
6 There is a strong presumption against preemption when
7 states and localities “exercise[] their police powers to
8 protect the health and safety of their citizens.”
9 Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 484-85 (1996).
10 “Because of the role of States as separate sovereigns in our
11 federal system, we have long presumed that state laws . . .
12 that are within the scope of the States’ historic police
13 powers . . . are not to be pre-empted by a federal statute
14 unless it is the clear and manifest purpose of Congress to
15 do so.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 894
16 (2000) (Stevens, J., dissenting); see also N.Y. SMSA Ltd.
17 P’ship, 612 F.3d at 104. “Protection of the safety of
18 persons is one of the traditional uses of the police power,”
19 which is “one of the least limitable of governmental
20 powers.” Queenside Hills Realty Co. v. Saxl, 328 U.S. 80,
21 82-83 (1946).
22
12
1 Here, New York City has exercised its fundamental
2 police power to protect public safety, but has done so by
3 regulating an area where federal occupational standards
4 exist. Gade controls. In that case, Illinois enacted
5 statutes regulating the licensing and training of employees
6 who work with hazardous waste. Gade, 505 U.S. at 91. The
7 issue was whether the Illinois regime was preempted by OSHA
8 regulations on “Hazardous Waste Operations and Emergency
9 Response,” which included training requirements for
10 hazardous waste workers. Id. at 92.
11 The Court characterized the Illinois laws as “dual
12 impact” statutes because they “protect[ed] both workers and
13 the general public.” Id. at 91. A plurality of the Court
14 held that the Act displaced conflicting state rules through
15 implied conflict preemption (there being no express
16 preemption in the Act).6 Id. at 98-99 (O’Connor, J.,
17 plurality op.). Viewing the Act as a whole, the Court
18 concluded that it “precludes any state regulation of an
19 occupational safety or health issue with respect to which a
20 federal standard has been established, unless a state plan
6
Justice Kennedy’s separate concurrence opined that
the Act expressly preempts state occupational safety and
health standards. Id. at 111-12 (Kennedy, J., concurring).
13
1 has been submitted and approved pursuant to § 18(b).” Id.
2 at 102.
3 The Gade Court rejected the state’s argument that dual
4 impact statutes are not preempted. Id. at 104-05.
5 “Although ‘part of the pre-empted field is defined by
6 reference to the purpose of the state law in
7 question, . . . another part of the field is defined by the
8 state law’s actual effect.’” Id. at 105 (quoting English v.
9 Gen. Elec. Co., 496 U.S. 72, 84 (1990)) (emphases added).
10 Accordingly, a state law that “constitutes, in a direct,
11 clear and substantial way, regulation of worker health and
12 safety” is preempted under the Act. Id. at 107 (internal
13 quotation marks omitted).
14 Critically, the Court recognized an exception for state
15 and local regulations that are of “general applicability.”
16 Id. But the Court held that because the Illinois statutes
17 were primarily “directed at workplace safety,” they were not
18 laws of general applicability and therefore succumbed to
19 preemption. Id. at 107-08.
20 The New York City crane regulations are unquestionably
21 “dual impact” regulations. For the most part, they are
22 intended to protect public safety and welfare. See N.Y.C.
14
1 Admin. Code § 28-101.2. There is considerable evidence of
2 accident risks posed by cranes, derricks, and other hoisting
3 equipment. See, e.g., Steel Inst., 832 F. Supp. 2d at 314;
4 J.A. 134-97. Many of the provisions are specifically
5 designed to protect the safety of the general public in the
6 vicinity of cranes and other hoisting equipment. See, e.g.,
7 RS 19-2 § 23.3.5 (prohibiting loads from being carried over
8 occupied buildings unless top two floors are evacuated).
9 The risk to the public in New York City is substantial and
10 palpable.7
11 That is the purpose of the City regulations; we must
12 also gauge their effect. Gade, 505 U.S. at 105. In their
13 effect, the regulations protect worker health and safety in
14 a “direct, clear and substantial” way. Id. at 107. For
15 example, Section 3316.7 of the Building Code provides that
7
During Hurricane Sandy in October 2012, a crane
collapsed and dangled over West 57th Street in Manhattan for
nearly a week. See, e.g., Charles V. Bagli, As Crane Hung
in the Sky, a Drama Unfolded to Prevent a Catastrophe Below,
N.Y. TIMES, Nov. 6, 2012. Public accounts suggest that City
DOB inspectors had found problems with the crane’s wire
ropes in the months before the accident and halted work on
the site for over a week in September 2012. Kerry Burke et
al., Crane Collapse in Midtown Manhattan as Hurricane Sandy
Storms into the East Coast, N.Y. DAILY NEWS, Oct. 29, 2012.
And it was City DOB inspectors who were on site to inspect
the crane after it was repaired. Josh Barbanel, High Drama
With Crane Comes to an End, WALL ST. J., Nov. 4, 2012.
15
1 only designated, specially qualified workers may operate
2 hoisting equipment. See N.Y.C. Admin. Code § 28-3316.7.
3 Similarly, the regulations require that a detailed plan be
4 submitted for the use of tower or climber cranes, and a
5 safety meeting must be held before a crane is “jumped.” Id.
6 § 28-3319.8. While these restrictions protect the general
7 safety of those near and around construction sites, the
8 direct and immediate effect is to protect workers at the
9 site.
10 The federal standards here--on “Cranes and Derricks in
11 Construction” and “Cranes and Derricks Used in Demolition
12 and Underground Construction”--regulate the same things,
13 i.e., the use of “power-operated equipment,” including
14 cranes, derricks, and other hoisting equipment, “when used
15 in construction.” 29 C.F.R. § 1926.1400(a). The City
16 regulations may employ different means, but they nonetheless
17 constitute “regulation of an occupational safety or health
18 issue with respect to which a federal standard has been
19 established.” Gade, 505 U.S. at 102. Under Gade, the
20 City’s crane regulations are preempted unless they are saved
21 from preemption as laws of general applicability.
22
16
1 Gade exempts from preemption “state laws of general
2 applicability (such as laws regarding traffic safety or fire
3 safety) that do not conflict with OSHA standards and that
4 regulate the conduct of workers and nonworkers alike.” 505
5 U.S. at 107. Even a law that directly and substantially
6 protects workers “cannot fairly be characterized as [an]
7 ‘occupational’ standard[]” if it “regulate[s] workers simply
8 as members of the general public.” Id. But a law “directed
9 at workplace safety” will not be saved from preemption. Id.
10 The Gade exception saves the City regulations from
11 preemption because they are of general applicability. They
12 do not conflict with OSHA standards; at most, the City’s
13 regulations provide additional or supplemental requirements
14 on some areas regulated by OSHA. By their terms they apply
15 to the conduct of workers and nonworkers alike.8
16 Most importantly, the City regulations are not directed
17 at safety in the workplace. In Gade, the preempted state
18 laws imposed licensing requirements on “hazardous waste
8
For example, Section 3316.3, which requires that
hoisting accidents be reported to the DOB, applies to the
“owner or person directly in charge of” the hoisting
equipment. N.Y.C. Admin. Code § 28-3316.3. Similarly,
Section 3319.3 requires various certificates for the
operation of a crane or derrick and applies to “owner[s] or
other person[s].” Id. § 28-3319.3.
17
1 equipment operators and laborers working at certain
2 facilities.” 505 U.S. at 93 (emphasis added). That law was
3 not saved from preemption as a law of general applicability
4 because it was “directed at workplace safety.” Id. at 107
5 (emphasis added). Gade’s holding reflects the plain
6 language of the Occupational Safety and Health Act, which
7 focuses only on “employment performed in a workplace.” 29
8 U.S.C. § 653(a) (emphasis added). Congress intended that
9 the Act help “reduce the number of occupational safety and
10 health hazards at their places of employment.” Id.11 § 651(b)(1) (emphasis added); see also id. § 654 (requiring
12 employers to furnish employees with “a place of employment”
13 free from hazards).
14 New York’s crane regulations, by contrast, apply all
15 over the City, not just in workplaces or construction sites.
16 As the district court found, New York City is always
17 undergoing construction, and construction risks are by no
18 means confined to a single building or lot.9 “Cranes, which
19 can be as tall as 1800 feet, and move loads as heavy as 825
20 tons, do not confine themselves to the property on which
9
When a person hoists a piano into his attic, the
risk is between him and his piano; if he hoists it above a
pulsing avenue, the risk is not contained and the peril is
of a general kind.
18
1 they are being used when they break, or worse, collapse;
2 they inevitably damage surrounding buildings and risk
3 injuring people in their homes and on the street.” Steel
4 Inst., 832 F. Supp. 2d at 314 (internal citation omitted).
5 A salient feature of the City’s regime is that crane
6 activity confined to a workplace is expressly excluded from
7 the scope of the City regulations: the regulations do not
8 apply “to cranes or derricks used in industrial or
9 commercial plants or yards” (unless used for construction of
10 the facility itself). N.Y.C. Admin. Code § 3319.3(6). The
11 City regulations therefore are directed at public safety
12 even though they achieve this goal, in part and
13 incidentally, by regulating the conduct of workers.
14 Police powers that protect everyone in the City will
15 naturally regulate some workers. Many of the regulations
16 that protect New Yorkers on a daily basis may bear upon the
17 conduct of workers, but nonetheless can be considered laws
18 of general applicability. They are specific applications of
19 a general prohibition on conduct that endangers the
20 populace, such as taxi regulations that protect drivers
21 while protecting passengers and pedestrians. The point is
22 best appreciated by imagining the crowded city without such
23 regulations.
19
1 The Supreme Court cited fire and traffic safety laws as
2 prime examples. Gade, 505 U.S. at 107. Consider a state or
3 local regulation concerning the use of bridges and tunnels
4 by drivers of rigs carrying explosive materials. OSHA may
5 protect truck drivers, and may specifically protect truck
6 drivers who are moving explosive loads. But the state or
7 local regulation is not directed at a workplace: its main
8 concern is the safety of the population, and the security of
9 the infrastructure. A regulated truck driver, like any
10 member of the general public, cannot expose fellow citizens
11 to unreasonable danger. The City’s crane regulations, like
12 fire codes and traffic laws, are an exercise of the police
13 power to protect the safety of the public in a crowded
14 metropolis.10
15
10
A further example: New York’s Fire Code regulates
the use of welding devices. See N.Y.C. Rules of the Fire
Dep’t § 2609-01(b). The regulations apply to anyone who
picks up a welding torch, and are presumably intended both
to protect the welder from injury and to protect New York’s
dense city blocks from fire. OSHA also regulates welding,
but pursuant to its congressional mandate, it does so for
the safety and health of covered workers. See Subpart Q--
Welding, Cutting and Brazing, 29 C.F.R. § 1910.251-.255.
The City’s fire safety requirements, although they may
directly and substantially protect workers, would be laws of
general applicability saved from preemption. See Gade, 505
U.S. at 107.
20
1 The Steel Institute relies heavily on the Eleventh
2 Circuit’s decision in Associated Builders & Contractors
3 Florida East Coast Chapter v. Miami-Dade County, 594 F.3d
4 1321 (11th Cir. 2010) (per curiam). Miami’s wind-load
5 standard for tower cranes was held to be preempted by OSHA
6 regulations on the same subject. Id. at 1323. Even if it
7 were binding on us, which of course it is not, the case is
8 distinguishable. The ordinance was not a public safety
9 measure because in Miami “[c]onstruction job sites are
10 closed to the public and it is undisputed that the
11 Ordinance’s wind load standards regulate how workers use and
12 erect tower cranes during the course of their employment.”
13 Id. at 1324. It was deemed significant that Miami “failed
14 to identify a single incident in which a crane accident
15 injured a member of the general public during a hurricane.”
16 Id. Moreover, although the Eleventh Circuit cited Gade, it
17 did not consider whether Miami’s ordinance could be saved
18 from preemption as a law of general applicability. Id.19 In sum, the City’s crane regulations are dual impact
20 regulations that affect both public safety and worker
21 conduct. Because there is a federal standard in place
22 addressing much the same conduct, the City regulations are
23 preempted unless exempt under Gade as laws of general
21
1 applicability. We conclude that they are laws of general
2 applicability, not directed at the workplace, that regulate
3 workers as members of the general public, and are therefore
4 saved from preemption.
5
6 V
7 The parties dispute whether deference is owed to the
8 Department of Labor’s views on whether the City’s crane
9 regulations are preempted. We do not defer to an agency’s
10 legal conclusion regarding preemption, but we give “some
11 weight” to an agency’s explanation of how state or local
12 laws may affect the federal regulatory scheme. Wyeth v.
13 Levine, 555 U.S. 555, 576-77 (2009); see also Geier v. Am.
14 Honda Motor Co., 529 U.S. 861, 883 (2000). “The weight we
15 accord the agency’s explanation of state law’s impact on the
16 federal scheme depends on its thoroughness, consistency, and
17 persuasiveness.” Wyeth, 555 U.S. at 577 (citing United
18 States v. Mead Corp., 533 U.S. 218, 234-35 (2001), and
19 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
20 OSHA cannot tell us whether the City regulations are
21 preempted or whether the Gade exception applies. But we are
22 reassured by OSHA’s view--to the extent that it is based on
23 OSHA’s long experience in formulating and administering
22
1 nationwide workplace standards--that the City regulations
2 (and other municipal codes like it) do not interfere with
3 OSHA’s regulatory scheme.
4 The preamble to the 2010 amendments of OSHA’s crane
5 regulations specifically references this case and states
6 that the City’s crane regulations are not preempted. 75
7 Fed. Reg. at 48,129. The Department, now as amicus, takes
8 the same position. That view is consistent with
9 longstanding OSHA policy. For example, in 1972, OSHA issued
10 a policy statement addressing local fire regulations:
11 It is the belief of [OSHA] that it was not Congress’
12 intent in passing the Act to preempt these extensive
13 [fire regulation] activities with respect to places of
14 employment covered by the Act. While there is an
15 overlap of jurisdiction in workplaces, [OSHA] feels
16 that the much broader goals of fire marshals’
17 activities preclude their being preempted.
18
19 OSHA Policy Statement Concerning State & Local Fire Marshall
20 Activities, at 1 (1972) (cited in Mem. of Law of the
21 Secretary of Labor as Amicus Curiae in Support of Defendant
22 (“Dist. Ct. Amicus Br.”), Att. 3, Steel Inst. of N.Y. v.
23 City of N.Y., No. 09-cv-6539 (S.D.N.Y. Jan. 6, 2011)).
24 Similarly, a 1981 OSHA directive indicated that “[s]tate
25 enforcement of standards which on their face are
26 predominantly for the purpose of protecting a class of
27 persons larger than employees” would not be preempted, even
23
1 when a federal standard is in place. OSHA, The Effect of
2 Preemption on the State Agencies Without 18(b) Plans, at 2
3 (1981) (cited in Dist. Ct. Amicus Br., Att. 4).
4 In 1992, the United States (on behalf of the Department
5 of Labor) submitted an amicus brief in Gade, advocating the
6 view--partly adopted by the Court--that “[a] state law of
7 general applicability that only incidentally affects
8 workers, not as a class, but as members of the general
9 public, cannot fairly be described as an ‘occupational’
10 standard.” Br. for the U.S. as Amicus Curiae Supporting
11 Resp’t, at 24 n.14, Gade v. Nat’l Solid Wastes Mgmt. Ass’n,
12 No. 90-1676 (Mar. 2, 1992) (cited in Dist. Ct. Amicus Br.,
13 Att. 5). “[The Act] does not typically preempt state fire
14 protection, boiler inspection, or building and electrical
15 code requirements, even though there are OSHA standards on
16 these subjects, because the state standards do not aim to
17 protect workers as a class, and do not have that primary
18 effect.” Id.
19 Although no deference is compelled, we grant “some
20 weight” to OSHA’s view in reaching our conclusion that local
21 regulatory schemes such as the City’s crane regulations have
22 the aim and primary effect of regulating conduct to secure
24
1 the safety of the general public, rather than the safety of
2 workers in the workplace.
3 The City’s crane regulations are saved from preemption
4 as laws of general applicability. The judgment is affirmed.
25