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Steel Institute of New York v. City of New York

May 7, 2013


The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:


Steel Institute of New York v. City of New York

Argued: December 20, 2012

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

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.

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 1 of New York (McMahon, J.) dismissed the suit on summary 2 judgment. We affirm.


The Steel Institute sought declaratory and injunctive 6 relief invalidating the City regulations listed in the 7 margin*fn1 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 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. 88 7 (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 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.


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)- (c).

OSHA has promulgated regulations concerning the use of 5 cranes, derricks, and hoisting equipment: 29 C.F.R. § 1926 6 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;

18 * procedures and conditions for design, assembly, 19 disassembly, operation, testing, and maintenance of the 20 machinery, id. §§ 1926.1403, .1417, .1412, .1433;

22 * proximity of the equipment to power lines during 23 assembly, operation, and disassembly, id. 24 ...

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