TNT Crane & Rigging, Inc. v. Occupational Safety and Health Review Commission, et al.

OSHA’s ground-conditions standard requires a construction site’s ground conditions to be sufficiently firm, drained, and graded to ensure the safe operation of cranes used at that site. The standard expressly assigns responsibility for ensuring safe ground conditions to the construction site’s “controlling entity,” typically the site’s general contractor. That assignment makes sense both because having a single responsible party is critical and because the general contractor is generally on-site for months and thus far more familiar with ground conditions than a crane operator on a one- or two-day assignment. Despite the standard’s express assignment of responsibility for ground conditions to the controlling entity, and the industry’s resulting uniform understanding and custom, OSHA issued Petitioner, a crane operator, a citation for failing to ensure sufficient ground conditions. The citation was not based on a theory that Petitioner, a subcontractor on site for only two days, was the site’s “controlling entity,” but on the novel view that the responsibilities expressly assigned to the controlling entity extend to crane operators as well. The Fifth Circuit denied a petition for review, adopting an interpretation of the standard that conflicts with the regulatory text and history and that radically transforms the allocation of responsibility on construction sites under OSHA and the many state tort regimes that follow OSHA. The question presented is: Whether 29 C.F.R. §1926.1402(b), for which OSHA expressly assigned responsibility to controlling entities, also imposes a duty on crane operators.