OSHA may regulate tandem lifts

   A federal appeals court has ruled the Occupational Safety and Health Administration may regulate so-called “vertical tandem lifts” (VTLs) of containers or flat racks, where more than one container or flat rack is lifted at a time. (National Maritime Safety Association v. Occupational Safety & Health Administration, D.C. Circuit. No. 09-1050. June 17.)
   But the court agreed with the National Maritime Safety Association (NMSA) that some OSHA rules on vertical tandem lifts were not feasible.
   NMSA members include trade organizations such as the Pacific Maritime Association, United States Maritime Alliance and New York Shipping Association that negotiate contracts with dockworker unions in the United States and Canada.
   The court turned back some of NMSA’s more general challenges to the OSHA regulations, saying the government had established there is a significant risk to tandem lifts.
   OSHA has estimated tandem lifts have been performed probably one million times since 1986 without personal injury, but it has also found evidence of at least nine incidents when containers have separated during vertical tandem lifts in the past 15 years.
   There was also testimony from longshoremen and container manufacturers that connectors linking the corner castings of containers being lifted in tandem “can frequently detach or not attach in the first place.”
   While the court denied the NMSA petition for a review of the rule regulating vertical tandem lifts, it agreed with NMSA that some aspects of the OSHA regulation were not feasible, and remanded them to OSHA.
   These include a requirement to inspect the connections between containers that are going to be lifted in tandem from ship to shore.
   While the court said it was feasible inspecting such connections when moving boxes from the dock to the ship, doing so in the other direction was not. NMSA argued it would not be safe to require employees to inspect containers that are “in a stack between other containers sitting 80 feet above the ship’s deck and twice that distance above the water and dock” and potentially exposing longshoremen to the hazard of falling.
   The court also found there was not substantial evidence to support OSHA’s feasibility determination with regard to its total ban on vertical tandem lifts of flat racks, also known as platform containers.
   NMSA argued that the total ban on platform container VTLs can make it unfeasible 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.
   “If that occurs, a domestic marine terminal operator must either lift the platform containers as a unit — and thus violate the standard — or leave the containers — and any containers beneath them — onboard,” the court noted.
   It also noted that when the rule was proposed by OSHA, it would have allowed the movement of empty platform containers with their end panels folded, so companies or groups commenting on the proposed regulation had no notice of the standard’s total ban and therefore did not address the infeasibility of the ban.
   Without a record of whether the rule was feasible, the court said it could not conclude that substantial evidence supports OSHA’s feasibility determination.
   The court rejected an argument by NMSA that since terminals establish a safe work zone around container operations, employees will not face any additional danger from tandem lifts.
   But the court said “while the safe work zone requirement adequately protects employees located on the ground, it does not necessarily protect the crane operator who moves the containers. If a container were to separate during a VTL, the separation could jar the crane and injure the operator.”

Buzzards Bay battle
   Buzzards Bay leads to the west entrance of the Cape Cod Canal.
   A federal appeals court has found the U.S. Coast Guard did not comply with its obligations under the National Environmental Policy Act in promulgating regulations for tank vessels on Buzzards Bay that preempt state environmental laws.
   The court sent the case back to trial court for further proceedings. (U.S. v. Coalition for Buzzards Bay, et al., 1st Circuit. Nos. 1664, 1668. May 17)
   The case had its genesis in a 2003 accident when a barge struck an outcropping of rocks and spilled an estimated 98,000 gallons of oil into Buzzards Bay.
   In response, the state enacted the Massachusetts Oil Spill Prevention Act (MOSPA).
   The federal government saw the law as a threat to its power to regulate commercial shipping on Buzzards Bay and sued to abolish certain provisions. It said MOPSA was preempted by federal law and Coast Guard regulations.
   The district court granted an injunction, and Massachusetts appealed, seeking to reinstate MOSPA’s manning and tug escort requirements for vessels. The 1st Circuit vacated the injunction and remanded it to the district court, saying it had not applied the correct analytical model for resolving federal-state regulatory conflicts.
   The Coast Guard then promulgated a rule relating to navigation that established manning and escort requirements limited to Buzzards Bay. The rules were purported expressly to preempt the challenged provisions of MOPSA.
   But there were differences in the two regulatory schemes. For example, the federal rules did not apply to double-hull barges while the Massachusetts law did, and manning requirements were different.
   The Coast Guard asked for an injunction against the MOSPA provisions, and Massachusetts alleged the Coast Guard violated the Administrative Procedure Act and National Environmental Protection Act. A district court judge ruled in the Coast Guard’s favor, but the 1st Circuit overruled it, saying the Coast Guard had violated NEPA.
   The Coast Guard relied on several so-called “categorical exclusions” that allow it to exempt regulations from environmental review if they are “establishing, disestablishing, or changing regulated navigation areas and security or safety zones,” as well as if they are regulations in aid of navigation.
   But the court found the Coast Guard had relied on the categorical exclusions “as a means of sidestepping any meaningful environmental analysis,” and failed to satisfy its obligations under NEPA. It sent the case back to district court.