A two-year-old state law that requires the certification of construction crane operators is invalid and the state board set up to regulate operators has no legal standing.
A finding by the state Department of Labor places seven years worth of efforts to certify crane operators in limbo. It also raises new concerns about administrative problems within the Hawaii Occupational Safety and Health division (HIOSH), which oversees workplace safety.
Meanwhile, only 462 of the state’s estimated 1,000 crane operators have been tested and certified and the new legal snarl suggests there will be more obstacles to overseeing the industry.
This week, the Hoisting Machine Operators Advisory Board, the state crane-operator certification agency, was told that its existence is illegal and the certification standards it formulated can’t be enforced.
“The way the board is set up is wrong,” said James Hardway, a spokesman for the Department of Labor, who met with the board to explain the inconsistencies in legislation that the department discovered earlier this month.
“The advisory board is not answerable to the labor director and is an independent agency but is set up as an advisory board. The board can make only recommendations and not rules. So any rule they develop is illegal under the law.”
The board was created by the state Legislature as part of a 1998 law that required all crane operators to pass a national exam, have at least 1,000 hours of experience and receive state certification based on these two qualifications.
The law went into effect Oct. 1, 2003, but since then, no one has been cited for either operating a crane without a certificate or employing a noncertified operator, generating complaints of unfairness from those who have followed the letter of the law.
The determination by the labor department was a blow to the board that had worked since 1998 to write certification rules.
“It’s disconcerting and frustrating to know that we spent all this time and effort for nothing,” said Allan Parker, chairman of the advisory board and district representative for the Operating Engineers Union. “We are all volunteers and now we learn years later that we are not properly set up.”
The Lingle administration blames the gaffe on its predecessors in the Cayetano administration and insists the problems can be fixed without toppling the existing set-up.
Others see it as another example of persistent problems within HIOSH. Over the past two years, the state division has gone through two administrators and currently is under the direct oversight of Labor Director Nelson Befitel.
“We agree that crane operators need to be certified,” Hardway said. “Cranes deal with heavy materials and could become a workplace hazard if people who aren’t trained or certified use it.”
He said the labor department is in talks with federal OSHA officials to get clarification on what the state can do to continue operating the certification program. Also, the state attorney general is expected to provide his recommendation by Nov. 1.
“It looks like the easiest fix will be to go back to the Legislature and put language in the law to recast the board as an advisory board to the labor director,” Hardway said. “And we need OSHA to approve the proposal before we go to the Legislature.”
Some construction companies say they are troubled that after the push to get operators certified, HIOSH inspectors aren’t at job sites checking.
“There’s a lot of minor accidents happening at sites that are not publicized,” said Jim Weander, director of operations at Hawaii Crane & Rigging Ltd., which rents cranes and operators to contractors. “The industry as a whole tries to suppress accidents as much as possible and no one knows about a lot of minor accidents. We are in for a catastrophic accident in the future because of lack of experience in the industry.”
Hawaii Crane & Rigging employs eight certified crane operators. Other companies that use cranes hire from the union bench — Operating Engineers Local 3 — and get to pick one of its nearly 150 certified members.
However, the high cost of getting a certificate — up to $5,000 per person — and the time needed to study for the math-based tests pose barriers to hiring. Few operators pass the national qualification test at first go.
The state’s lack of enforcement goes back to how the law was written, Hardway said.
“Federal law doesn’t allow HIOSH inspectors to cite employees, they can only cite employers,” he said. “If the department were to cite an employer under the rules the advisory board’s put together, the employer can come back and say the federal OSHA didn’t approve any change to the state guidelines and the set-up of the certification board. And federal law trumps any state standards. So the citation will be nullified.”