Posted October 25, 2016

Contractor groups sue New York City to stop new crane regulations

Petition alleges that proposed regs will decrease safety and reduce productivity. 

A group of contractor associations has sued the City of New York to stop the enforcement of arbitrary and capricious crawler crane safety requirements that the City put into place in response to a February crane accident in Lower Manhattan.

The group, made up of members of the Building Trades Employers Association (BTEA), including the Contractors Association of Greater New York (CAGNY), the Allied Building Metal Industries (ABMI), the General Contractors Association of New York (GCA), the Building Contractors Association (BCA) and the Cement League, filed an Article 78 petition against the Department of Buildings of the City of New York and its Commissioner, Richard D. Chandler, seeking a judgment to permanently enjoin implementation of the new regulations – because the new regulations make the operations of cranes less safe.

The petition also notes that the crane regulations, which require crawler cranes to cease operations when wind gusts exceed 30 mph, were drafted without input from the construction industry or crane operators and owners and will not only make operations less safe, they will also severely impact project schedules and budgets and prevent the City from reaching its own affordable housing and departmental capital plan goals.

Raymond G. McGuire, of Kauff McGuire & Margolis, which is representing the petitioners in the Article 78 proceeding stated, “The New York City Department of Buildings has made an arbitrary decision based upon neither science nor mechanical engineering experience at the expense of safety, and it is indefensible. Left with no other recourse, the petitioners went to court to force New York City into a more reasoned and thoughtful crane regulatory system that will better protect the public safety of all New Yorkers and the workers on construction sites.”

The wind speed regulations are allegedly in response to a crawler crane collapse on Worth Street in lower Manhattan on February 5, 2016, although the Department of Buildings issued the regulations before its investigation into the causes of the accident was completed and a final report still has not been issued. The federal Occupational Health and Safety Agency recently found, on the other hand, that the accident was the result of operator error, not wind speeds. The contractor did not follow the appropriate procedures in laying down the crane’s boom – the dangerous operation that will now be mandated when winds reach 30 mph, which they commonly do at New York building sites.

In the weeks after the incident, Mayor Bill de Blasio created a Crane Safety Technical Working Group, yet none of the members of the Working Group have ever operated, rigged, erected or dismantled a crane or worked in crane manufacturing, engineering or design, nor did these academics offer any opinion on the cause of the Worth Street crane collapse.

Commissioner Chandler and the Working Group crafted a mandate that all crawler crane operations cease when the National Weather Service predicts that winds will exceed 30 mph or when they do actually exceed 30 mph. They provided no reasoning or basis and the wind speed provision appears to be from the New York City Building Code of 1968.

William J. Smith, Jr., specialist in underwriting Nations Builders Insurance Services, Inc.’s coverage of crane manufacturers, suppliers and operators said, “Nothing in my 38 years of experience in crane and crane safety-related work justifies a uniform threshold of 30 mph. In fact, imposing a rule that crawler crane booms or jibs must be grounded whenever wind speeds reach 30 mph actually increases the risk of accidents. I have found no scientific or technical support for New York City’s new restrictions on crawler crane operations.”

The group’s Article 78 petition outlines in clear detail the failings of the Working Group and the Department of Buildings as they reacted to the Worth Street incident. It also compares New York’s unreasonable and dangerous regulatory scheme to the commonsense approaches in other localities across the globe.

Other governments across the United State and abroad have comprehensive frameworks regulating the erection, use and dismantling of hoisting devices, including crawler cranes. Yet virtually every single one of these regulatory frameworks requires crane operators to cease operations when conditions are actually unsafe or when wind speeds exceed the maximum speed for safe operations as determined by the manufacturer.

None of the frameworks require operations to cease at a particular and arbitrary wind speed number – they have incorporated the manufacturer’s load ratings chart as the standard for judging the risks of wind speed. Certain crane operations may be unsafe at a much lower wind speed, such as 10 to 20 mph.

Conversely, certain crane operations may be safe at higher speeds such as 40 to 45 mph. Crane operation must be guided by the manufacturer’s operating manuals and the experience and judgment of the crane’s operator and safety coordinator.

The 30 mph limitation has been mischaracterized as adding an extra margin of safety to New York City crane operations, but it does just the opposite: it makes unusual and risky crane operations more common and therefore increases the danger to pedestrians, construction workers, and the public.

All of the Petitioners are members of the Building Trades Employers’ Association (BTEA), which consists of 27 trade union contractor associations, representing the 1,700 construction managers, general contractors and specialty subcontractor firms in New York City.