OSHA’s Vertical Tandem Lift Standard Addressed by D.C. Circuit

On December 10, 2008, the Occupational Safety and Health Administration (“OSHA”) published a final rule regulating the use of vertical tandem lifts (“VTLs”).  The rule, or VTL Standard, was challenged by a marine terminal trade association on the grounds 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 is not reasonably necessary or appropriate with respect to the “safe work zone” requirement; (4) the Standard exceeds OSHA’s lawful authority; (5) and that the Occupational Safety and Health Act (“OSH Act”) made an unconstitutional delegation of legislative power to OSHA.  The United States Court of Appeals for the District of Columbia Circuit granted the trade association’s petition for review in part and denied in part.

As explained by the court: “Most maritime cargo today is shipped in standardized intermodal containers that can be transferred from ship to shore…in the same container.  The container has openings at each corner that allow it to be secured onboard a ship, truck or train.  Containers are frequently vertically stacked on top of one another for transport, in which case interbox connectors can be inserted into the corner openings to fasten the stacked containers to each other.  Standard containers are shaped like rectangular boxes.  Platform containers (also called flat racks) have no top or long sides and the end panels (or short sides) are either fixed upright or can be folded flat onto the floor of the container.  Platform containers may also be attached to other containers using interbox connectors, typically with their end panels folded flat.  A crane can lift the interconnected containers in what is called a vertical tandem lift and thereby move multiple containers at once.  Marine cargo handlers have been performing VTLs for over twenty years.  While the total number of VTLs performed is unknown, OSHA has estimated the number to be one million VTLs since 1986.  No injury has been reported as having occurred during a VTL.”

The D.C. Circuit deferred to OSHA’s determination that VTLs pose a significant risk.  Although OSHA must first make a threshold finding of a significant risk before the implementation of a rule, OSHA may measure “significant risk” against what is “reasonably necessary or appropriate to provide safe or healthful employment.”  OSHA does not have to quantify a risk before determining it is significant, but it does have to “identify the evidence upon which it relies, to explain its logic and the policies underlying its choices, to state candidly any assumptions on which it relies and to provide its reasons for rejecting contrary evidence or argument.”  But OSHA did not carry the day entirely.  The D.C. Circuit agreed that some of the VTL Standard was technologically infeasible, and that rubber stamping the Standard in toto would be “lamely deferential.”  OSHA did not provide evidence to support the feasibility its inspection requirement for ship-to-shore VTLs.  Additionally, the D.C. Circuit noted that OSHA did not provide notice to commentators regarding the Standard’s total ban on platform container VTLs.  Without notice, the commentators could not address the infeasibility of the ban.  Without those comments, the record was lacking and the total ban was not supported by substantial evidence.  Finally, the D.C. Circuit determined that OSHA did not have to accept an employer’s established “safe work zone;” that OSHA does have the power to both regulate how workplace practices are performed and prohibit noncompliant practices; and that Congress validly delegated authority to OSHA, through the OSH Act, to set health or safety standards that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment….”

National Maritime Safety Ass’n v. OSHA, — F.3d —-, 2011 WL 2417109 (D.C. Cir. 2011).