Employers soon will be held to a higher level of accountability regarding construction cranes. Federal safety regulators may be asking employers for their operator’s certification card during a routine jobsite inspection or accident investigation. However, the significant yet controversial mandate for operators to be trained,tested and certified to a national standard nearly died on the bargaining table. It was the will of one hoisting expert—under intense pressure from special interests to vote it down and even facing the possibility of losing his job as a prominent contractor’s crane-fleet manager—that kept it alive.
“I was holding the bag,” says Joseph Collins, a San Antonio-based lifting consultant who sat on a Cranes and Derricks Negotiated Rulemaking Advisory Committee (C-DAC), a 23-member expert panel convened by the Occupational Safety and Health Administration in 2003 to help update its decades-old crane rules. “There is no other machine in the industry capable of more death and destruction than a crane in an accident,” says Collins, who then managed Zachry Group’s fleet of 300 lift cranes. “That is why I went on a crusade for mandatory certification.”
The most controversial measure of the rules, the requirement that operators nationwide be certified by an accredited agency, is a major change for a group of more than 267,000 industry establishments that previously assessed their own workers’ skills. It also requires riggers, signalpersons and inspectors to be “qualified,” a lower standard that is still a step forward from the previous rule’s “competent person” standard. Signalpersons, who act as an extension of the operator’s eyes and ears, must be further tested by “a third-party qualified evaluator” or an “employer’s qualified evaluator.” Studies show that many lifts are done in the blind, which elevates the signalperson’s role.
Since the operator exams arrived 15 years ago, a handful of states and cities have required them, and OSHA endorses them. The belief that they reduce accidents is supported largely by a 34-year study in Ontario, which implemented operator certification in 1979. From 1968 to 1978, the province had 85 crane-related fatalities. From 1979 to 2002, the number was 51; from 1991 to 2002, the total was nine. “This study supports C-DAC’s conclusion that third-party certification is an effective means of promoting safe crane operations,” OSHA writes in the Aug. 9 rule’s preamble.
The federal rule widens certification to a pool of operators of an estimated 123,000 construction cranes rated to lift one ton and heavier. Most of the roughly 40,000-word regulation—the previous one was about 4,000 words—is set to go into effect on Nov. 8. It leaves four more years, however, for employers to have operators tested at the employers’ cost.
OSHA took more than 10 years to update its 39-year-old regulation, which was based in part on standards written in 1968, before some of today’s cranes existed. Experts are hailing the measure, created using a negotiated rule-making process, as a huge step forward in safety standards. “I think, fundamentally, it’s a quantum leap in crane safety,” says Graham Brent, executive director of the National Commission for the Certification of Crane Operators, the non-profit that created the industry’s first nationwide accredited test for operators in 1995. (The author passed the NCCCO exams to operate tower cranes)
Most of the rule is the product of C-DAC’s meetings. At the time, only one accredited organization existed, NCCCO. Six years later, a handful have sprung up, including the National Center for Construction Education and Research, Crane Institute of America Certification Inc. and the operating engineers’ union. The Union Pacific railroad also runs one.
The rule-making is long overdue, regulators admit, and they were pointedly reminded by a slew of deadly crane accidents in New York City, Miami, Houston and other cities in 2008. “It’s a shame OSHA took that long to do it, but I understand,” says Peter Juhren, corporate service manager for tower-crane supplier Morrow Equipment Co., Salem, Ore., and a C-DAC member. “The gears of democracy turn very slowly.”
After C-DAC deliberated for about a year, a draft rule came up for vote in July 2004. Though negotiators gave employers multiple options for certification—such as allowing firms to self-certify operators as long as the firms opened up testing to an outside auditor—pressure mounted from industry lobbyists to kill the rule’s most significant provision. Among the dissenters were small-business owners within key trade groups: Associated General Contractors of America, American Road & Transportation Builders Association and National Association of Home Builders.
“Our position then and now was not in opposition to certification,” says Steve Sandherr, AGC’s chief executive. “It was to make sure that if we had certification, it was logical and workable.” While leaders appeared to be voting against safety and accountability, in reality their members were torn largely over semantics and logistics: what certification means and how to implement it. “There was a strong schism in the association at the time,” says Bradley Sant, vice president of safety and education for the American Road & Transportation Builders Association. “There are some [members] who are still very uncomfortable with it.”
The cost to train and test thousands of operators, now estimated at $50.7 million a year, was a key concern, as was the lack of certifiers. Some felt the rule too restrictive—for example, it originally required operators to test in English. Others said it favored NCCCO. Art Daniel, an AGC member who sat on OSHA’s small-business panel, blasted C-DAC for a “pride of authorship,” as some panelists previously helped develop NCCCO’s programs.
As industry lobbyists pressured the panel to block the rule, the majority supported it. “We’ve always backed certification,” says Juhren. “We still firmly believe that the certification of operators is essential to a safe work environment.”
Under the panel’s ground rules, a consensus could be reached with, at most, two no votes. All representatives voted yes except two: Brian Murphy, safety director for Sundt Corp., AGC’s representative, and Craig Steel, president and CEO of Schuck & Sons Construction Co. Inc., for NAHB. Collins, ARTBA’s rep, knew he was on the hot seat. “They actually gave me direct orders to vote no,” Collins says. “I dug my heels in.”
A NCCCO board member, Collins had Zachry’s support, though at times his job seemed shaky. “It was quite a week,” he says. Had Collins voted no, operator certification would have been watered down or killed, panelists say. “Joe’s always been one of my heroes,” says C-DAC negotiator Chip Pocock, of steel erector Buckner Cos. Juhren adds, “He voted with his conscience.”
Murphy, an outspoken supporter of NCCCO, voted with his constituency even though Sundt, a large contractor, potentially stood to gain a market edge if the rule passed as written. “He was working with the [NAHB] rep to make sure that people sitting around the table understood the impact this stuff had on smaller contractors,” says Sandherr. Murphy could not be reached for comment.
The economic impact still concerns some. “It is going to raise the cost of owning and operating cranes,” says Rob Matuga, NAHB assistant vice president for labor, safety and health. “One of our members … said they may be getting out of the crane ownership and operation business.”
Sandherr says some concerns have eased. For example, operators may test in their native language. And time has cooled the debate. Sant adds, “I have not heard the type of push-back as when the rule was first announced. There just seems to be some surrender.”