OSHA attached language to its final rule on cranes and derricks formalizing its stance that the regulations do not supersede state and local laws and ordinances as long as those codes meet or exceed federal standards. The issue of preemption arose in a recent court case, in which a steel industry group is seeking to have New York City building codes thrown out on the basis of OSH Act preemption -- a claim that prodded the Labor Department to wade into the dispute. The Labor Department has filed an amicus brief in that case (see Inside OSHA, April 26).
The long-anticipated rule, published July 28, includes a section on federalism that details OSHA's position on issues of preemption that are likely to emerge as the rule takes effect. Some stakeholders argue the OSH Act preempts state and local codes that, in cases such as the New York dispute, are more stringent than the applicable federal regulations. OSHA stated in the cranes and derricks rule, as it did in its amicus brief, that it does not view the standard as preempting stricter state and local laws and ordinances.
Concerns remained in the business community about the scope of the rule and its potential overlap with state and local policy. An industry attorney said OSHA's interpretation of law may be right, but the impact of the regulations is still unclear. "As a matter of law, I think OSHA has staked out what is probably the correct position with regard to preemption," said Baruch Fellner, partner in Gibson, Dunn & Crutcher. "As a matter of practice, given the enormously detailed final standard that OSHA has promulgated, there is going to be confusion between the application of a myriad of building codes and OSHA's new standard."
OSHA is effectively wandering into the thicket of building codes, Fellner said. "That's going to create a lot of confusion."
The agency noted that the most recent executive order on federalism requires federal agencies, to the extent possible, to refrain from limiting state or local policy options, consult with states before taking actions that restrict those options, and take such actions only when clear constitutional authority exists and the problem in national in scope.
OSHA said occupational safety and health standards developed by state-plan states must be at least as effective in providing safe and healthful employment as the federal standards. But the agency noted that some who commented on the rule were concerned with the preemptive effect of the final rule in jurisdictions not covered by an approved state plan. New York City representatives urged OSHA to make clear that the new standard will not preempt city ordinances on the erection, dismantling, and operation of cranes, including operator license requirements, that protect the public in general. On the other side of the issue, the Allied Building Metal Industries Association contended that preemption of local crane laws was not only preferable but mandated by the OSH Act.
While the statute does not contain an express preemption provision, OSHA said, preemption may be implied where the state law conflicts with federal law or is an impediment to achieving the federal purpose. The agency maintained that for the same reasons set forth in its amicus brief, New York's crane ordinances are not preempted by the final rule. That's because, the agency argued, the ordinances are designed to protect the public and neighboring structures from the hazards of cranes and do not conflict with OSHA standards.
OSHA referred to case law finding that the OSH Act has been interpreted to preempt supplementary state laws that are not part of an approved state plan. But that section of the law refers to states, not localities, and does not show a clear intention to preempt local building codes, the agency said.
"The Secretary [of Labor] has interpreted the Act as not preempting laws such as building codes and OSHA rulemaking has long proceeded on the assumption that local building codes exist in parallel to OSHA regulations and are not preempted by them," the agency said.
"Strong policy considerations bolster this understanding," OSHA added. "Work practices and conditions pose a variety of serious hazards to the public, and local jurisdictions have enacted a network of industrial codes, such as building and electrical codes, that touch on issues for which there are OSHA standards. If New York City's crane ordinances are preempted because of their incidental impact on worker safety, building and electrical codes, and many other types of local regulation will also be in jeopardy."
The city's crane laws are analogous to fire and safety laws in that they comprehensively address a public hazard by imposing obligations on a wide variety of people without regard to the existence of an employment relationship, OSHA said.
OSHA further advised that state-plan states must amend their standards to reflect the new standards or show why such action is unnecessary (for example, because an existing state standard is "at least as effective" as the new federal requirements). Those states have six months to amend their standards to comply with the new cranes rule.
Meanwhile, the New York case over OSHA preemption is still pending. Fellner said just because OSHA reiterated its stance with language in the final rule, that doesn't resolve the issue. "It's going to take a lot of courts to say that," he added, noting a a court ruling would help clarify the subject. "It will set some kind of precedent. It depends on how the decision reads and how sweeping it is." -- Christopher Cole