District of Columbia Court of Appeals vacates portions of OSHA standard governing vertical tandem lifts.
In 2008, the Occupational Safety & Health Administration (OSHA) published a final rule regulating vertical tandem lifts (VTLs). A "VTL" occurs when a crane hoists standard intermodal cargo shipping containers that are stacked and interconnected, one atop the other. The practice, which allows a crane to move multiple containers at once, has been employed in maritime ports for over twenty years without reported injuries.
OSHA's VTL Standard restricted VTLs to two empty "box" intermodal containers. Categorically banned were VTLs of platform containers, or "flat racks," which lack tops or long side panels and whose short end panels can be fixed upright or folded flat. The OSHA VTL Standard additionally required that interbox connectors and containers be inspected immediately before being used in a VTL, although OSHA acknowledged that this requirement could render ship-to-shore VTLs impractical. The Standard also imposed a “safe work zone” requirement, which required the employer to establish a safe work zone within which employees could not be present when vertically connected containers were in motion, sufficient to protect employees in the event that a container dropped or overturned. In its deliberations on the Standard, OSHA also determined that “unregulated VTL operations” posed a “significant risk” to worker safety.
The National Maritime Safety Association (NMSA), a trade association representing marine terminal operators, petitioned for review of OSHA's VTL Standard in the United States Court of Appeals for the District of Columbia Circuit. As summarized by the court, the NMSA argued that (1) OSHA failed to demonstrate that VTLs pose a significant risk to worker safety; (2) two of the Standard’s requirements were not technologically feasible; (3) the Standard was not reasonably necessary or appropriate in light of the “safe work zone” requirement; (4) OSHA’s authority was limited to requiring, not prohibiting, workplace practices; and (5) if the Standard was otherwise valid, the Occupational Safety and Health Act (OSH Act or Act), 29 U.S.C. §§ 651-678, had made an unconstitutional delegation of legislative power to OSHA.
The court of appeals granted NMSA's petition in part, vacating and remanding the Standard with respect to the inspection requirement for ship-to-shore VTLs and the total ban on platform container VTLs. In all other respects, the court denied the petition.
The court rejected the NMSA's challenges to OSHA's significant risk finding. The NMSA maintained that OSHA failed to quantify the risk posed to worker safety by VTLs, and that the agency could not rely on a finding that unregulated VTLs operations posed a significant risk, but instead had to determine that VTLs posed a significant risk to worker safety under current industry standards. OSHA's position that significant risk should be determined against what current law requires, rather than allowing voluntary industry standards to preempt regulation, was subject to judicial deference. Nor was OSHA required to quantify a risk before determining that it was significant, the court said. In this instance OSHA met its burden to identify the evidence, explain its logic and policies, and candidly state any assumptions on which it relied in making its significant risk determination as to VTLs.
The court concluded, however, that OSHA's feasibility determination was insufficient. The NMSA challenged as technologically infeasible the requirement of the interbox connector inspection and the ban on platform container VTLs. OSHA standards must be both economically and technologically feasible, yet here the VTL Standard was almost devoid of a feasibility analysis, the court admonished. The NMSA persuasively argued that ship-to-shore VTL inspections were neither safe nor feasible for employees to carry out because containers are stacked several stories high on cargo vessels. Absent substantial evidence to support OSHA’s determination that its inspection requirement was feasible for ship-to-shore VTLs, the court could not uphold that determination. As to shore-to-ship VTLs, however, the NMSA conceded that inspection before each VTL was feasible and that it was current industry practice to perform it.
Substantial evidence also failed to support OSHA's feasibility determination with regard to the total ban on platform container VTLs where OSHA's earlier, proposed rule would have allowed VTLs of empty platform containers with their ends folded. In light of the earlier form of the proposed rule, commenters had no notice of the ultimate total ban and did not address its infeasibility. The court noted, as well, the NMSA's argument that the total ban on platform container VTLs could make it infeasible to unload cargo from a ship because platform containers are often stacked and interconnected overseas and thereafter cannot always be separated or chained together before lifting.
The court thus vacated and remanded the inspection requirement, as applied to ship-to-shore VTLs, and the total ban on platform container VTLs.
The court disagreed with NMSA's contention that the safe work zone requirement effectively protected employees from the dangers of VTLs, making any additional regulations superfluous. Evidence indicated that unexpected separations of stacked containers could threaten crane operators, who are subject to injury when cranes are jarred by sudden and unanticipated box separations.
Likewise, OSHA's unquestioned authority to ensure safe workplace practices included the authority to prohibit unsafe practices. The NMSA therefore was wrong when it maintained that OSHA lacked statutory authority to permit or ban specific workplace practices and could regulate only how such practices are performed.
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