SECRETARY OF LABOR,

Complainant,

v.

CONSOLIDATED RAIL CORPORATION,

Respondent.

Docket Nos. 91-3133 &
91-3134

ORDER

On July 1, 1992, Respondent filed a Petition for Interlocutory Review requesting review of the administrative law judge's order denying its Motion to Dismiss. Respondent argues that under section 4(b)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C § 653(b)(1), the Occupational Safety and Health Administration ("OSHA") lacks jurisdiction over the worksite. Since the worksite involved the repair and maintenance of a railroad bridge, the Respondent argues that it was under the exclusive jurisdiction of the Federal Railroad Administration ("FRA") due to the FRA's assertion of its regulatory authority and the resulting preemption of OSHA's jurisdiction. The Secretary has. filed an Opposition to the Petition.

The Commission has reviewed the Petition for Interlocutory Review and the Secretary's Opposition and finds that under Commission Rule 73(a), 29 C.F.R. § 2200.73(a), this case involves an important question of law about which there is substantial ground for difference of opinion and that immediate review of the ruling may materially expedite the disposition of the proceedings. Accordingly, the Petition for Interlocutory Review is granted. The proceedings before the Administrative Law Judge, including the hearing scheduled for July 24, 1992; are stayed.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman                                                                         
Commissioner

                                                                                                            
Velma Montoya                                                                                                                      Commissioner

Dated July 22, 1992

VIA FEDERAL EXPRESS

Mr. Ray Darling, Jr.
Executive Secretary
Occupational Safety & Health Review Commission

RE: Secretary v. Consolidated Rail Corporation
OSHRC Docket Nos. 91-3133 and 91-3134

Dear Mr. Darling:
Enclosed please find the original and four copies of Respondent's Petition for Interlocutory Review for filing in the above-referenced matter.

Copies have been served upon all interested parties.

Very truly yours,

NANCI A. HOOVER
Associate General Counsel 17

NAH: ld
Enclosures

Copy: All Interested Parties

SECRETARY OF LABOR,

Complainant,

v.

CONSOLIDATED RAIL CORPORATION,

Respondent.

Docket Nos. 91-3133 & 91-3134

RESPONDENT CONSOLIDATED RAIL CORPORATION'S
PETITION FOR INTERLOCUTORY REVIEW

Pursuant to 29 C.F.R. § 2200-73, Respondent, Consolidated Rail Corporation (Conrail), hereby petitions the Review Commission for an interlocutory review of Administrative Law Judge Brady's Order denying Respondent's Notion to Dismiss. In support of this Motion, Respondent asserts that review of this Order involves an important question of law and policy about which there in substantial ground for difference of opinion and that immediate review of the ruling may materially expedite the final disposition of the proceedings. The reasons for this Petition are set forth in the accompanying Memorandum of Law.

WHEREFORE, respondent respectfully requests that this petition be granted.

Respectfully submitted,
NANCI A. HOOVER                                                                                                                Consolidated Rail Corporation

ATTORNEY FOR RESPONDENT

SECRETARY OF LABOR,

Complainant,

v.

CONSOLIDATED RAIL CORPORATION,

Respondent.

Docket Nos. 91-3133
91-3134

RESPONDENT CONSOLIDATED RAIL CORPORATION'S
MEMORANDUM IN SUPPORT OF PETITION FOR INTERLOCUTORY REVIEW

In early October of 1991, representatives of the Occupational Safety and Health Administration (OSHA) conducted an inspection of a worksite located at a railroad bridge near the intersection of the Cincinnati-Dayton Road and Saxony Road in Miamisburg, Ohio. At the time of the inspection, a Consolidated Rail Corporation (Conrail) maintenance of way gang was engaged in maintenance and repair work upon the railroad bridge. An a result of this inspection, citations were issued to Conrail for alleged violations of OSHA regulations found at the worksite. Those citations have become the basis for two related proceedings before the Review Commission, OSHRC Docket No. 91-3133 and No. 91-3134. On May 8, 1992, Conrail filed a Motion to Dismiss the Secretary's complaints in these matters, on the basis that OSHA did not have jurisdiction over the working conditions cited. Rather, the Federal Railroad Administration (FRA), the agency designated by Congress as responsible for safety in the railroad industry, has sole jurisdiction to issue and enforce regulations regarding the safety of maintenance of way employees, and upon railroad bridges. A copy of this Motion is attached and marked as Exhibit "A".

By Order dated June 25, 1992, Judge Brady held that OSHA was not, under section 4(b)(1) of the Occupational Safety and Health Act (the "Act"), 29 U.S.C. § 653(b)(1); preempted from issuing the citations in this case by the Federal Railroad Administration (FRA). A copy of this Order is attached and marked as Exhibit "B".This Order denied Respondent Consolidated Rail Corporation's (Conrail) Motion to Dismiss the Secretary's complaint in this matter. Respondent now seeks an immediate review of this Order pursuant to 29 U.S.C. § 2200.73, which permits interlocutory review upon the discretion of the Review Commission, and where the Commission finds that the review "involves an important question of law or policy about which there in substantial ground for difference of opinion and the immediate review of the ruling may materially expedite the final disposition of the proceedings."

There is no question that this standard is met with respect to Judge Brady's Order. The preemption issue in the area of bridge safety for railroad maintenance of way employees in an important question of law that has significant ramifications throughout the railroad industry. This threshold jurisdictional question warrants an immediate resolution. A declaration of the agency responsible for this area would eliminate any potential confusion on this subject, and benefit both employers and employees.

That this is a legal question for which there is substantial ground for difference of opinion is also easily shown from an examination of the law in this area. For example, as Judge Brady himself admits, in 1978 the Federal Railroad Administration (FRA) spoke directly on this subject in its Policy Statement, which noted that:

[T]he OSHA regulations would not apply to ladders, platforms, and other surfaces on signal masts, centenary systems, railroad bridges, turntables, and similar structures or to walkways beside the tracks in yards or along the right-of-way. These are areas which are so much a part of the operating environment that they must be regulated by the agency with primary responsibility for railroad safety.

43 Fed. Reg. 10587 (1978). Yet, Judge Brady found that the FRA did not preempt OSHA in this matter because they have failed to issue regulations on this subject. This directly contravenes a prior decision of the Review Commission on this very question, when it found that "the FRA policy statement is an exercise of the FRA's statutory authority that gives rise to an exemption under section 4(b)(1) of the OSH Act." Consolidated Rail Corporation, 10 OSHC 1577, 1579 (1982). Various courts have similarly dismissed the theory espoused by the Order of June 25, 1992, (see, e.g., Velasquez v. Southern Pacific Co., 734 F.2d 216 (5th Cir. 1984), and Norfolk & W. Ry. v. Public Utilities Com'n of Ohio, 926 F.2d 567 (6th Cir. 1991) rehearing den. April 12, 1991)) and many more courts have found that, on the subject of railroad bridge safety and maintenance of way employees, the FRA has the sole authority to issue and promulgate regulations. A full review of the law in this matter is contained in Respondent's Brief in Support of Its Motion to Dismiss, which is attached and marked as Exhibit "C". Obviously, then, in light of the Review Commission's own language on this subject, which in controlling precedent, it is apparent that substantial grounds exist for a differing opinion from that of the Judge in this case.

An immediate review of this matter would serve to materially expedite the final disposition of the proceedings in these cases. This is a practical determination requiring an assessment of the litigation situation, particularly the prospects for settlement and the costs of litigation. The parties here are sharply divided on the jurisdiction, as a matter of law, of OSHA in this situation. A hearing on the merits of the citations is currently scheduled for July 24, 1992, in Dayton, Ohio before Judge Brady. An authoritative statement of the law would not only settle an issue of general importance to the industry, it would clarify the scope of Conrail's duties and responsibilities in this area, and thus precipitate meaningful settlement discussions. A hearing on the merits would involve a lot of unnecessary expense and time from all parties, and could be avoided by granting review of Judge Brady's Order, and staying the proceedings before the Administrative Law Judge.

For all these reasons, the Review Commission should grant review of Judge Brady's Order of June 25, 1992. This review certainly involves an important question of law about which there is substantial ground for difference of opinion and an immediate review of this ruling would materially expedite the final disposition of the proceedings.


Respectfully submitted,
NANCI A. HOOVER
Consolidated Rail Corporation

ATTORNEY FOR RESPONDENT

SECRETARY OF LABOR,

Complainant,

v.

CONSOLIDATED RAIL CORPORATION,

Respondent.

Docket Nos. 91-3133
91-3134

RESPONDENT CONSOLIDATED RAIL CORPORATION'S
MOTION TO DISMISS SECRETARY'S COMPLAINT

Pursuant to 29 C.F.R. § 2200.40(a) ,Respondent, Consolidated Rail Corporation (Conrail), hereby moves for an order dismissing the Secretary's complaint in this matter for lack of jurisdiction. In support of this motion Respondent states the following:

1. On or about, October 1-2, 1991, Complainant conducted an inspection of Respondents workplace located at the railroad bridge near the intersection of Cincinnati-Dayton Road and Saxony Road.

2. At the time of the inspection, the worksite consisted of Conrail maintenance, of way employees who were engaged in maintenance and repair duties on the railroad bridge.

3. As a result of this inspection, citations were issued to Respondent by Complainant, alleging that Conrail had violated the OSH Act at this worksite. In accordance with OSH Act procedures, these citations that were issued are now the subject of two related actions before the Occupational Safety and Health Review Commission; Docket No. 91-3133 and Docket No. 91-3134.

4. Section 4(b)(1) of the Occupational Safety and Health Act (OSH Act) provides that "[n]othing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies. . . exercise statutory authority.to prescribe or enforce standards or regulations affecting occupational safety or health." [[29]] U.S.C. § 653(b)(1).

5. Congress has specifically designated the Federal Railroad Administration (FRA) as having the authority to issue rules, regulations or standards concerning the safety of maintenance of way employees, and Bridge safety. [[45]] U.S.C. § 431(n).

6. OSHA has no jurisdiction to issue citations and proposed penalties for alleged violations of the OSH Act at said worksite, because PRA has preempted OSHA's authority in this matter.

WHEREFORE, respondent respectfully requests that this motion be granted, and an order be issued dismissing the Secretary's complaint in this matter.

Respectfully submitted,
NANCI A. HOOVER
Consolidated Rail Corporation

ATTORNEY FOR RESPONDENT

SECRETARY OF LABOR,

Complainant,

v.

CONSOLIDATED RAIL CORPORATION,

Respondent.

Docket Nos.

91-3133 & 91-3134

ORDER DENYING MOTION TO DISMISS

Respondent, Consolidated Rail Corporation (Conrail) filed a motion to dismiss the citations in this case asserting the Occupational Safety and Health Administration (OSHA) has no jurisdiction because the railroad is subject to the jurisdiction of the Federal Railway Administration (FRA).

In support of the motion, Respondent asserts that any question of OSHA jurisdiction was resolved by an FRA policy state went in 1978. The statement included the following:

Within the area of railroad operations, it is FRA which must decide what regulations are necessary and feasible ... FRA has now exercised its statutory authority ... While it is expected that additional regulatory initiative may be undertaken as necessary. . . it is the judgement of the agency that piecemeal regulation of individual hazards ... by any other agency of government would be disruptive and contrary to the public interest. Should it be demonstrated that further specific regulatory action is required . . . FRA will not hesitate to employ its emergency powers or to initiate special- purpose proceedings directed to the solution of individual problems. Therefore, as the primary regulatory agency, FRA has exercised and continues to exercise its jurisdiction over the safety of railroad operations.

43 Fed. Reg. 10586 (1978).

Since the citations relate to working conditions at a railroad bridge worksite, Conrad points out that the policy statement specifically declares OSHA regulations do not apply to bridges. It states in part as follows:

. . . the OSHA regulations would not apply to ladders, platforms, and other surfaces on signal masts, catenary systems, railroad bridges, turntables, and similar structures or to walkways beside the tracks in yards or along the right-of-way. These are areas which are so much a part of the operating environment that they must be regulated by the agency with primary responsibility for railroad safety.

43 Fed. Reg. 10587.

Conrail also suggests that there has been congressional deference to FRA by a 1998 amendment to the Federal Railroad Safety Act (FRSA). The amendment provides that:

The Secretary shall within one year after June 22, 1988 issue such rules, regulations, orders and standards as may be necessary for the safety of maintenance of way employees, including standards for bridge safety equipment, such as nets, walkways, handrails, and safety lines, and requirements relating to instances when boats shall be used.

45 U.S.C. § 431(n).

Respondent notes that the Occupational Safety and Health Act (Act) itself acknowledges the jurisdiction of other federal agencies which have more specific Congressional authority to regulate working conditions. Reference is made to Section 4(b)(1) of the Act which states in part as follows:

Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies ... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.

The Secretary argues that Section 4(b)(1) does not provide for industry-wide exemption and OSHA "shall yield jurisdiction to a sister federal agency only to the extent that it actually exercises its authority and then only to the specific working conditions at issue. This actual exercise of authority can entail affirmative action, such as rulemaking, or by refusing to enact regulations after giving full consideration of the working conditions and articulating a formal position as a result." Therefore, the FRA policy statement is not sufficient exercise of jurisdiction in this case.

In argument both parties cite the Commission decision in Consolidated Rail Corp., 10 BNA OSHC 1577,1982 CCH OSHD ¶ 26,044 (No. 79-1277, 1982). The Commission held the policy statement was sufficient exercise to preempt OSHA by stating OSHA standards should not apply to the working conditions in that case. The Commission relied on the decision in Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 [4 OSHC 1693] (5th Cir. 1976), cert. denied, 434 U.S. 874 [5 OSHC 1888] (1977) which states:

Our rejection of the railroad's position does not constitute an acceptance of the theory that every OSHA regulation remains operative until the FRA adopts a regulation of its own on that specific subject ... Neither OSHA itself nor the existence of OSHA regulations affects the ability of the primary regulatory agency, here the FRA, to articulate its regulations as it chooses. Much of their displacing effect will turn on that articulation. ... Furthermore, as the dominant agency in its limited area, the FRA can displace OSHA regulations by articulating a formal position that a given working condition should go unregulated or that certain regulations -- and no others -- should apply to a defined subject.

Although the policy statement does not appear to "articulate a formal position," as stated by the Court or have "the force and effect of law," [[1]] as indicated by Congress, the Commission ruling is binding in this case. Nonetheless, Conrail's motion to dismiss must be dismissed.

Conrail concedes that the FRA has yet to issue the rules and regulations affecting bridge safety, as directed by Congress in 1988. It is also acknowledged that the Administrator of the FRA argued in 1991 that the policy statement did not intend to preempt OSHA from all aspects of bridge safety. 56 Fed. Reg. 3435 (1/30/91).

The evidence fails to show that the FRA has issued standards or "articulated a formal position" regarding the regulation of the working conditions cited in this case. Respondent's motion is hereby dismissed.

Dated this 25th day of June, 1992.

/s/ Paul L. Brady
PAUL L BRADY
Judge

SECRETARY OF LABOR,

Complainant,

v.

CONSOLIDATED RAIL CORPORATION,

Respondent.

OSHRC Docket

Nos. 91-3133
91-3134

RESPONDENT CONSOLIDATED RAIL CORPORATION'S
BRIEF IN SUPPORT OF ITS MOTION TO DISMISS

I. Statement of Facts

On or about October 1-2, 1991, representatives of the Occupational Safety and Health Administration (OSHA) conducted an inspection of a worksite located at a railroad bridge near the intersection of Saxony Road and Cincinnati-Dayton Road. This worksite consisted of maintenance of way employees of Consolidated Rail Corporation (Conrail) who were engaged in repair and maintenance work on the bridge. As a result of this inspection, OSHA issued two separate sets of citation to Conrail. The initial citation was dated October 8, 1991, and consisted of a two item serious citation alleging violations of 29 C.F.R. § 1926.59(g)(8) and § 1926.59(h). Conrail duty contested this citation and it was thereafter docketed with the Review Commission under OSHRC Docket No. 91-3133. OSHA then issued a second group of citations, still as a result of the same inspection of the Miamisburg railroad bridge worksite, which was dated October 19, 1991. These citations consisted of a six item serious citation, and a one item other-than-serious citation. Four of the items dealt with the scaffolding being used in the bridge work. The remaining item concerned alleged violations of § 1926.20(b)(2), § 1926.21(b)(2), and an alleged other-than-serious violation of § 1926-51(f). These citations were docketed with the Review Commission under OSHRC Docket No. 91-3134.

Both Conrail and the Secretary have file discovery in those cases. The hearing on the merits is scheduled for June 16, 1992 in Dayton, Ohio.

II. General Background

Conrail operates a railroad system in fourteen states in the Northeast and Midwest, the District of Columbia and one Canadian province. Conrail's principal routes stretch from Illinois in the west to Massachusetts in the east, and from Kentucky in the south to Canada in the north. The Conrail employees who construct and maintain these thousands of miles of track, and hundreds of bridges, trestles and other structures are known in the industry as maintenance of way employees. These types of employees typically work in gangs, without fixed headquarters, and move from location to location as the work progresses, in a kind of mobile assembly line. Other gangs may work at one site for a period of time until the work is completed, and then move on to a new project. Many of Conrail's maintenance of way employees are provided with meals and lodging at the company's expense. Camp cars are provided for housing, and are subject to Federal Railroad Administration (FRA) guidelines and inspections. Although maintenance of way employees can be compared to construction workers in general industry, they are daily confronted with issues and situations unique to the railroad industry, and function in a way not easily duplicated elsewhere.

As a railroad, Conrail is subject to numerous Acts that are designed to address the peculiar problems of the rail industry; the Federal Employers' Liability Act, 45 U.S.C. § 51 et. seg., and the Railway Labor Act, 45 U.S.C. § 151 et. seg., to name but a few. Similarly, a part of the Department of Transportation, the FRA, is charged with the responsibility to "carry out all railroad safety laws of the United States . . . The Secretary of Transportation is responsible for all acts taken under those laws and for ensuring that the laws are uniformly administered and enforced among the safety offices." 49 U.S.C. § 103(a). The regulations enacted by the FRA can be found at 49 C.F.R. § 213, et. seg. Congress has also enacted the Federal Rail Safety Act, 45 U.S.C. 42 et. seq., directing the Department of Transportation to promulgate regulations on a variety of topics relating to safety in the rail industry. In accordance with its authority, the FRA administers such regulations by conducting inspections, and issuing violations. Congress has clearly demonstrated by the enactment of these laws the railroad industry has problems and concerns that are unique, and merit separate consideration apart from generic laws best suited for general industry.

III. Legal Argument

In 1970 Congress enacted the Federal Railroad Safety Act (FRSA), 45 U.S.C. § 421, et. seq. As the Seventh Circuit Court of Appeals has observed, "(T)he purpose of the Act was to provide comprehensive and uniform safety regulations for all areas of railroad operations."Chicago Transit Authority v. Flohr, 570 F.2d 1305, 1308 (7th Cir. 1977). This analysis of the Congressional intent is validated by the Act's explicit directive to the Secretary of Transportation to adopt railroad regulations "to promote safety in all areas of railroad operations." 45 U.S.C. § 432 (emphasis added).

In 45 U.S.C. § 434, Congress further confirmed its intention that laws, rules, regulations, orders and standards relating to railroad safety should be uniform and consistent. Indeed, the legislative history of the FRSA evidences an unmistakable Congressional intent favoring exclusive FRA regulation:
With the exception of industrial or plant railroads, the railroad industry has very few local characteristics. Rather, in terms of its operation, it has a truly interstate character calling for a uniform body of regulations and enforcement. It is a national system.

H.R. Rep. No. 1194, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. & Admin. News 4104, 4109-4111.

Given this clear Congressional mandate, the preemptive effect of the FRSA has been broadly construed by the federal courts. For example, in commenting on the FRSA, the Third Circuit Court of Appeals said, "We believe these statutory provisions evince, as the district court determined, a 'total preemptive intent.'" National Ass'n of Regulatory Utility Com'rs v. Coleman, 542 F.2d 11, 13 (3rd Cir. 1976) Similarly, the Fifth Circuit has noted, "The meaning of the Congressional declaration is clear. The ultimate goal of the Act is to establish national uniform control of railroad safety . . . . "  Donelon v. New Orleans Terminal Co., 414 F-2d 1108, 1112 (5th Cir.) cert. den., 414 U.S. 855 (1973).

Of course, the federal courts have not been unmindful that the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. §§ 651-678, also addresses occupational safety, but they have recognized that the OSH Act is primarily concerned with working conditions in a broader industrial environment, and that the OSH Act is inapplicable whenever the FRA has primary jurisdiction over the railroad working conditions at issue. Velasquez v. Southern Pacific Transp. Co., 734 F.2d 216 (5th Cir. 1984); Southern Pacific Transp. Co. v. Usery, 539 F.2d 386, 391 (5th Cir. 1976),cert. denied, 434 U.S. 874 (1977); Southern Ry. v. Occupational Saf. & H. Rev. Comm., 539 F.2d 335, 339 (4th Cir.) cert, den, 429 U.S. 999 (1976); and Norfolk & W. Ry, v. Burns ,587 F. Supp. 161, 167 (E.D. Mich. 1984). Indeed, deference to the Federal Railroad Administration's primary jurisdiction over occupational health and safety issues pertaining to the railroad industry is reflected in Section 4(b)(1) of the OSH Act itself which cedes jurisdiction over employee "working conditions" to other federal agencies which have more specific Congressional authority to enforce standards or regulate working conditions affecting specific occupations:

Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

29 U.S.C. § 653 (b)(1).

The language in Section 4(b)(1) of the OSH Act cannot be road to cloak OSHA with authority to stop in whenever OSHA perceives, correctly or not, a dangerous situation which another agency may not be attending to properly. As a Michigan District Court in a case involving a state with its own OSHA program (MIOSHA), noted:

the test of preemption is not whether a hazard exists or not. Admittedly, in certain preempted areas, a MIOSHA inspector could go out and say there is a hazard in the roadbed, and no reasonably-minded person could disagree with him. But the test of preemption is broader than that. If the area itself is precluded from regulation, then that preclusion would be binding on MIOSHA.

Burns, supra 587 F. Supp. at 172. This concept is essential to a complete understanding of the limits of OSHA's jurisdiction.

Most importantly, the FRA has in the past consistently and emphatically declared its exclusive jurisdiction over working conditions pertaining to railroad bridges. For example, in November, 1976, the FRA addressed the issue of whether walkways should be required on all railroad bridges as a matter of federal regulation. 41 Fed. Reg. 50 (1976). This FRA rulemaking was terminated in April, 1977 when the FRA concluded that such mandate could not be justified because it would impose significant added financial burdens of the railroad industry. The FRA determined that diverting railroad resources from other maintenance and improvement projects would not serve the overall interests of employee safety. 42 red. Reg. 22185 (1977).

The next year, however, on March 14, 1978, the FRA issued a sweeping policy statement describing the amount of authority it was willing to cede to OSHA. The FRA policy statement included the following declarations:

Within the area of railroad operations, it is FRA which must decide what regulations are necessary and feasible . . . FRA has now exercised its statutory authority . . . While it in expected that additional regulatory initiative may be undertaken as necessary,. . . it is the judgment of the agency that piecemeal regulation of individual hazards. . . by any other agency of government would be disruptive and contrary to the public interest. Should it be demonstrated that further specific regulatory action is required . . . FRA will not, hesitate to employ its emergency powers or to initiate special-purpose proceedings directed to the solution of individual problems. Therefore, as the primary regulatory agency, FRA has exercised and continues to exercise its jurisdiction over the safety of railroad operations.

43 Fed. Reg. 10586 (1978).

Specifically the FRA went on to declare that OSHA regulations would be allowed to have some application to railroad offices and shops that had the character of a general or industrial setting, but no more. The FRA retained exclusive jurisdiction over the railroads' field operations and all matters pertaining to "(1) track, roadbed and associated devices and structures, (2) equipment and (3) human factors." 43 Fed. Reg. 10585. In regard to those areas, the FRA declared that "(I)n these traditional areas of railroad safety, FRA has developed a special expertise which makes this agency uniquely qualified to play the primary role in the Federal Government's role to assure safe employment ... in activities related to railroad operations." 43, Fed.Reg 10585.

Thus, the FRA declared its exclusive jurisdiction over the railroads, field operations, and specifically declared that OSHA regulations would not apply to railroad bridges:

OSHA regulations concerning working surfaces deal with such matters as ladders, stairways, platforms, scaffolds and floor openings. Generally, theses regulations are applicable in railroad offices, shops, and other fixed work places. There are three principal exceptions to the rule. First, they would not apply with respect to the design of locomotives and other rolling equipment used on a railroad, since working conditions related to such surfaces are regulated by FRA as major aspects of railroad. operations.

Second, as the agency which has exercised jurisdiction over railroad operation, FRA is "responsible for the safe movement of rolling stock through railroad repair shops. OSHA requirements for general industry are in some respects inconsistent with the optimum safety of employees in this unique environment where hazards from moving equipment predominate. Therefore, OSHA regulations on guarding of open pits,ditches, etc., would not apply to inspection pits in locomotive or car repair facilities. FRA is better equipped to ensure proper clearance technology and employee knowledge of existing industry practices as well as the prevalence and severity of hazards, represented by specific injury occurrence codes in accident/incident reporting statistics. FRA is responsible for determining what additional regulatory steps, if any may be necessary in this area in light of overall safety considerations.

Third, the OSHA regulations would not apply to ladders, platforms, and other surfaces on signal masts, centenary systems railroad bridges, turntables, and similar structures or to walkways beside the tracks in yards or along the right-of-way. These are areas which are so much a part of the operating environment that they must be regulated by the agency with primary responsibility for railroad safety.

43 Fed. Reg. 10587 (1978).

The FRA, then, has unequivocally declared OSHA regulations inapplicable to those areas within FRA's special expertise, including railroad bridges. It 1978 pronouncement ousted OSHA from any authority over working conditions of railroad bridges because those physical structures "are so much a part of the operating environment that they must be regulated by the agency with primary responsibility for railroad safety." Id.

Congressional deference toward the FRA at the expense of OSHA's more generic jurisdiction is unquestioned in the area of bridge safety. The 1988 amendment to FRSA specifically states that "standards for bridge safety equipment" are for the sole discretion of the Secretary of Transportation and the Federal Railroad Administration:

The Secretary shall within one year after June 22, 1988, issue such rules, regulations, orders and standards as may be necessary for the safety of maintenance of way employees, including standards for bridge safety equipment, such as nets, walkways, handrails, and safety lines, and requirements relating to instance when boats shall be used.

45 U.S.C. § 431(n). This serves to confirm that OSHA has no authority to regulate maintenance of way employees who are working on railroad bridges, and that it is solely the responsibility of the FRA to "issue such rules, regulations, orders and standards as it may deem to be necessary" for the safety of railroad employees engaged in bridge work.[[1]]

The Occupational Safety and Health Review Commission (the Review Commission) has recognized that "there is no doubt that the FRA has the statutory authority to regulate the safety of employees in the railroad industry." Secretary of Labor v. Consolidated Rail Corp., 10 OSHC 1577, 1579-81 (1982). Moreover, in the same proceeding the Review Commission conceded that the FRA's declarations of jurisdiction in March of 1978 ousted OSHA from jurisdiction over all aspects of the railroad industry other than limited jurisdiction over railroad shops and offices that typified a more traditional industrial setting. Id. The Commission also cited a letter written by John M. Sullivan, the administrator of the FRA at the time the 1978 Policy Statement had been promulgated, which emphasized that by issuing its Policy Statement, "the FRA articulated its view that existing FRA regulations constitute a comprehensive exercise of authority over working conditions which are rooted in railroad operations." 10 OSHC at 1579 n. 8.[[2]]

The federal courts have likewise held that OSHA jurisdiction over working conditions on railroad bridges has specifically been preempted by the FRA's declaration of March, 1978. Recently, the Sixth Circuit considered the issue of FRA regulation of railroad bridges, and after reviewing the FRA's 1977 and 1978 pronouncements in the area, reiterated that the FRA clearly displaced all other regulations, and rendered them inapplicable to railroad bridges. Norfolk & W. Ry. v. Public Utilities Comm'n of Ohio, 926 F.2d 567 (6th Cir. 1991) rehearing den. April 12, 1991. The court also noted that the 1988 amendment to the FRSA specifically "reinforces the FRA's exclusive authority" over working conditions involving railroad bridges. The statute unmistakably underscores Congress', conviction that the FRA is best qualified to determine what, if any, national regulation might be required to further the interest of employee safety when working on railroad bridges. Norfolk & W. Ry. 926 F.2d at 571--72.

The court in Norfolk & W. Ry. also dismissed the argument that preemption cannot take effect until the FRA enacts specific regulations of its own covering the same subject matter. Norfolk & W/ Ry 926 F.2d at 570, citing Ray v. Atlantic Richfield Co., 435 U.S. 151, 178 (1978). Ample federal precedent exists for the finding that the clear language used by the FRA in its 1978 Policy Statement placed it well within the rule of negative preemption "whereby a federal agency's affirmation of its own primary authority takes on the character of a ruling that no such regulation is appropriate or approved." Norfolk & W. Ry., 727 F. Supp. 367, 369-70 aff'd, 926 F.2d 567 (6th Cir. 1991). See also Velasquez, supra., 734 F.2d at 218. Further, one cannot argue that the FRA's failure to act promptly in response to the Congressional mandate somehow constitutes the necessary authority for OSHA to "fill in the gaps" by being applicable to railroad bridges until such time as the FRA actually issues regulations. The Ohio District Court in Norfolk & W.Ry. flatly rejected this reasoning:

Finally, even if the amendment is viewed as a mandate, it does not follow that the FRA's failure to act within the time specified in the amendment operates to relegate regulation to the states contrary to the overriding intent of the FRSA. The amendment makes no such provision and nothing in the legislative history suggests that Congress so intended.

Norfolk & W. Ry., 727 F. Supp. at 371, aff'd 926 F.2d 567 (6th Cir. 1991). See also Velasquez, supra, 734 F.2d at 18. Similarly, in Southern Pacific, supra the Fifth Circuit Court of Appeals concluded that OSHA regulations were subject to preemption by FRA mandate, even if the FRA did not adopt a regulation on the same subject. The Court reasoned that the FRA's exclusive jurisdiction over railroad "working conditions" could be properly exercised, in terms of a hazard, or in terms of a place or physical structure. Thus, Southern Pacific specifically states:

Our rejection of the railroad's position [on industry-wide exemption] does not constitute an acceptance of the theory that every regulation remains operative until the FRA adopts a regulation of its own on that specific subject . . . Section 4(b)(1) means that any FRA exercise directed at a working condition -- defined either in term of a surrounding or a "hazard" -- displaces OSHA coverage of that working condition . . . furthermore, as the dominant federal agency in its limited area the FRA can displace OSHA regulations by articulating a formal position that a given working condition should go unregulated or that certain regulations -- and no others -- should apply to a defined subject.

In either situation, the scope of the exemption created by Section 4(b)(1) is determined by the FRA's intent, as derived from its articulations.

Southern Pacific Transp. Co. v. Usery, 539 F.2d at 391-92. Accord: Southern Ry. v. OSHRC, 539 F.2d 335, 338-40 (4th Cir. 1976); Baltimore & O. R.R. v. OSHRC, 548 F.2d 1052 (D.C. Cir. 1976). The FRA could not have been more explicit in its 1978 Policy Statement that it intended to oust OSHA from any authority over working conditions on railroad bridges when it stated that those physical structures "are so much a part of the operating environment that they must be regulated by the agency with primary responsibility for railroad safety." 43 Fed. Reg. 10587 (1978). In fact, this view is reiterated in a 1989 letter from the FRA to Cynthia Attwood, the Associate Solicitor for the United States Department of Labor (See Exhibit B).

That the FRA's jurisdiction in this area has been generally accepted is apparent by the text of a 1991 letter from Gerald Scannell, the Assistant Secretary for OSHA, Department of Labor, who states that "the FRA has jurisdiction over all areas of railroad safety that are directly related to railroad operations, including those maintenance or repair duties performed by maintenance-of-way workers." (February 5, 1991 letter from Scannell to Steven J. Anthony, of the Norfolk Southern. A copy of the letter attached as Exhibit C). Although critical of the FRA's efforts in the area, the Brotherhood of Maintenance of Way Employee (BMWE), has also acknowledged the Agency's responsibilities for the safety of its membership (Testimony of Railway Labor Executives' Association before the Oversight Hearing on Railroad Safety, attached as Exhibit D).

IV. Conclusion

The purpose of Section 4(b)(1) of the OSH Act was to allow specialized agencies to deal with the peculiar conditions of those industries that significantly differ from general industry. Federal courts have again and again found that the FRA 1978 Policy Statement serves to preempt the OSH Act with reference to railroad bridges. The statutory language clearly demonstrates that Congress intended the FRA to have exclusive jurisdiction over maintenance of way workers and railroad bridges. Congress has further served to underline the FRA's jurisdiction by directing it to promulgate regulations dealing with various safety issues regarding maintenance of way work. Conrail respectfully requests, therefore, that its motion to dismiss be granted, and that the citations issued by OSHA as a result of its inspection of the Miamisburg railroad bridge be vacated.

Respectfully submitted,

NANCI A. HOOVER
Consolidated Rail Corporation                                                                                                          ATTORNEY FOR RESPONDENT

March 7, 1989

Ms. Cynthia L. Attwood
Associate Solicitor
Solicitor of Labor

Dear Ms. Attwood:

I write in response to your request for answers to two questions: (1) does the Federal Railroad Administrative (FRA) have regulations to ensure that fall protection equipment is provided railroad workers where appropriate; and (2) does FRA have jurisdiction over the safety of workers performing track repair and maintenance?

With regard to full protection for railroad workers, FRA does not now have such a rule in place. However, we expect to publish in the near future a Notice of Proposal Rulemaking concerning the safety of railroad employees working on bridges. See Rail Safety Improvement Act of 1988 (Pub. L. 100-342, 102 Stat. 624, June 22, 1988). We expect the proposed rule to address personal protective apparatus for use by railroad employees working on walkways, over or near water, or on scaffolds. These devices would include safety belts, lifelines, lanyards, safety nets, boats, railings and respirators.

As to protection of maintenance-of-way workers performing track maintenance or repair, responsibility for their safety is FRA's, according to the Policy Statement issued by FRA March 14, 1978, which delineates respective areas on FRA and OSHA jurisdictional authority. 43 F.R. 10583. Following prefatory statements that FRA activity in the area of occupational safety will concentrate on the "safety of railroad operations" (i.e., "conditions and procedures necessary to achieve the safe movement of equipment over the rails"), the Policy Statement notes that "... proper precautions to assure that trackmen are not struck by trains or other equipment moving over the rails are part of the safety of railroad operations." 43 F.R. 10585.

In addition, the policy statement provides that". . . OSHA regulations would not apply to. . . walkways beside the tracks in yards or along right-of-way. These are areas which are so much a part of the operating environment that they must be regulated by the agency with primary responsibility for railroad safety." 43 F.R. 10587.

I hope this information is helpful. If you have any further questions, please contact me.


Very truly yours,
Original signed by


Gregory B. McBride
Assistant Chief Counsel
for safety

cc:Associate Administrator for safety
Regional Director, Region 2

Mr. Steven J. Anthony Norfolk Southern Corporation
Dear Mr. Anthony:

This letter is in response to your concerns about the safety and health of railroad workers. Both the Occupational Safety and Health Administration (OSHA) and the Federal Railroad Administration (FRA) have certain responsibilities for protecting the safety and health of railroad employees. A discussion of their respective jurisdictional authorities follows.

Congress passed the Occupational Safety and Health Act of 1970 (OSH Act) to assure so far as possible safe and healthful working conditions for all workers. In passing the OSH Act, Congress was cognizant of the occupational safety and health protection functions provided by other Federal agencies. Under agency exercises its statutory authority for workplace safety and health conditions. By including this provision, Congress prevented duplication of efforts among Federal agencies.

In passing the Federal Railroad Safety Act of 1970, Congress gave the statutory authority to protect the safety and health of railroad employees to the FRA. Under this authority in 1976, FRA published a notice of proposed rulemaking in the Federal Register concerning the issuance of railroad occupational safety and health standards. In March 1978, however, FRA terminated its rulemaking efforts after reviewing the comments submitted to the docket, and reconsidering its role in the general area of occupational safety and health. Instead, FRA issued a Policy Statement which delineated respective of OSHA and FRA jurisdictional authority for protection railroad employees. According to the Policy Statement that has jurisdiction over all areas of railroad safety that are directly related to railroad operations, including those maintenance or repair duties performed by maintenance-of-way workers. The three major areas of railroad operation that are regulated by FRA include tracks, road beds, and associated structures such as bridges; equipment; and human factors, such as hours of service. OSHA regulates those hazards which are not covered by FRA, such as those found in repair shops, servicing areas, and other locations not directly related to operating railroads.


In 1988, Congress passed the Railroad Safety Improvement Act which, among other things, amended Section 431 of the Federal Railroad Safety Act to mandate that FRA issue regulations for the safety of maintenance-of-way employees. FRA has not yet issued rules implementing this provision. We understand that FRA is presently considering possible rulemaking for certain categories of railroad workers.

Recordkeeping is the one area of joint OSHA and FRA jurisdiction for the railroad industry. In 1982, the Occupational Safety and Health Review Commission held, that railroad companies were subject to both FRA and OSHA recordkeeping requirements, due to OSHA's continued interest in occupational illnesses and injuries occurring in the industry.

In sum, OSHA and FRA play separate, but complementing, roles in protecting the safety and health of railroad employees. FRA has jurisdiction over all areas of railroad safety that are directly related to railroad operations. OSHA protects workers from hazards which are not covered by FRA. Recordkeeping is the only area in which the railroad industry is subject to both OSHA and FRA requirements.

If we may be of further assistance in this matter, please contact Ms. Regina Flahie of my staff at (202) 523-8021.

Sincerely,
Gerald F. Scannell
Assistant Secretary


October 2, 1990

BEFORE THE HOUSE SUBCOMMITTEE ON TRANSPORTATION AND HAZARDOUS MATERIALS

OVERSIGHT HEARING ON RAILROAD SAFETY

TESTIMONY OF                                                                                                                                                                      RAILWAY LABOR EXECUTIVES ASSOCIATION

The testimony is being submitted on behalf of the Railway Labor Executives Association ("RLEA"). The constituent unions represented by RLEA are as follows:

American Railway & Airway Supervisor's Association,
Division of TCU

American Train Dispatchers Association
Brotherhood of Maintenance of Way Employee
Brotherhood of Railroad Signalmen
Brotherhood of Railroad Carmen, Division of TCU
Brotherhood of Locomotive Engineers
Hotel Employees & Restaurant Employees International Union
International Association of Machinists & Aerospace Workers
International Brotherhood of Boilermakers & Blacksmiths
International Brotherhood of Electrical Workers
International Brotherhood of Fireman & Officers
International Longshoreman's Association
National Marine Engineers' Beneficial Association
Sheet Metal Workers' International Association
International Union of North America
Transportation Communications Union
Transport Workers' Union of America

The Federal railroad enforcement program is seriously lacking due to mismanagement and misguided philosophical ideals. When Federal inspections fails, everyone suffers because there are so few shacks on the system. After many years of bringing this overall conduct of Congress, we sincerely appreciate this Committee requesting the General Accounting Office ("GAO") to investigate it. On April 22, 1982, we first advised your Subcommittee that "The System Safety Plan represents a backward step in reducing accidents and injuries." We repeated our concerns many times during the ensuing years. Now, rail company. With respect to certain RSA mandates effect employee and public safety.

A Bridge Safety For Maintenance-Of-Way Employees

Today, we have a serious concern about the maintenance of way employees. In the RSIA, the FRA was told to issue several regulations concerning safety for maintenance of way employees within one year from June 22, 1988. FRA has only issued rules on blue flag protectors designed to protect workers in camp cars, and it published interpretations of the application of the Hours of Service Act to employees in camp cars. Concerning camp cars, only after Congressional intervention and a joint proposal from the Brotherhood of Maintenance of Way Employee ("BMWE") and the Association of American Railroads ("AAR"), that set in FRA for over one year, did FRA adopt guidelines concerning camp car safety and health. What is so distasteful here is FRA's implicit promise to the railroads that it will not enforce the guidelines. See 56 Fed. Reg. 30892-93 (July 27, 1990) where the FRA states, in part,

in accord with the statute, FRA does not intend to penalize a railroad for conditions not within its control, even if these conditions do interfere with ... FRA will not take enforcement action unless the railroad has failed to arrange for repair of the unit with reasonable promptness...Nor does FRA intend to assess penalties for conditions within the railroads control that would not interfere with the rest of an ordinary person.

This is FRA parody at its finest. Just like every other FRA enforcement tactic, these camp car guidelines will be mocked by the railroads. The railroads will merely promise to correct an unsafe condition and then FRA will turn its back. The possibilities of what FRA will not enforce are endless. The probability that living conditions in camp cars will change is nil.

Of greater concern, is FRA's adamant refusal to adopt "standards for bridge safety equipment, such as nets, walkways, handrails, and safety lines..." 45 U.S.C. § 431(n). FRA has taken no action and its sole defense is its stated concern that the standards may encroach upon OSHA standards. Since the enactment of the RSIA, FRA has completely avoided the issue with its gerrymander tactics. On March 7, 1989, FRA responded to a Department of Labor inquiry with respect  to protections mandated by the RSIA. a letter to Ms.Cynthia L. Attwood Associate Solicitor of Labor, FRA first states, "We expect to publish in the near future a notice of proposed Rulemaking." See Attached Exhibit 2. This is October 2,1990, eighteen months later, and still no notice. Second, FRA told the department of labor, this area of employee safety is our "responsibility .... according to the policy Statement issued by FRA March 14, 1978,. . . . Thus, on March 7, 1989, FRA made clear that it is responsible for employee safety and that the Department of Labor should stay clear.

For twelve years, FRA and the railroads have hidden behind the infamous Policy Statement. The history of FRA abdication here is revealing. All federal track safety standards are contained in 49 C.F.R. Part 213. These standards were initially adopted on October 20, 1971. see 36 Fed. Reg. 20,336, and last amended on September 7, 1982. 47 Fed. Reg. 39,402. In neither of the rulemakings did the FRA consider promulgating rules covering walkways or bridge safety equipment. In 1971, FRA stated that time did not permit it to issue comprehensive standards applying to all areas of track construction and maintenance 36 Fed. Reg. 11,874 1971.

The FRA has had other opportunities to adopt regulations covering walkways and has declined to do so. On March 7, 1975, FRA proposed to adopt certain railroad occupational safety and health standards which would incorporate the then existing OSHA standards printed at 29 C.F.R. § 1910 et seg. 40 Fed. Reg. 10,883 (1975). These initial standards would have included walking-working surfaces. Subsequently, after receiving comments on the proposed rulemaking,the FRA anticipated regulating only three areas: means of , fire protection,and environmental controls. See 41 Fed. Reg. 20, 150, 20, 195 (1975).The FRA declined to provide coverage over walkways. On November 15, 1976, the FRA in Docket No. RS8-1 published an Advance Notice of Proposed Rulemaking (41 Fed. Reg. 50,302) based on petitions for rulemaking filed by the RLEA to require the construction of walkways on railroad bridges, trestles and similar structures. Based upon the comments it received, the FRA declined to adopt any rule covering walkways. In response to the question, "Are federal regulations concerning walkways appropriate? The FRA stated:

Are federal regulations concerning walkways appropriate?

Seven commenters expressed the opinion that a uniform federal standard for walkways that would be applicable nationwide is not appropriate. Such a standard, they contended could not deal effectively with the wide variety of conditions that exists on railroads throughout the country. They cited the differences in topography and weather, traffic frequency, operating conditions and the design and historical or architectural merit of the structures. Because of this variety, the walkway question should be addressed on a case-by-case basis rather than by issuance of a single uniform rule.

Secondly, some railroads contended that, where a safety problem exists because of topography or operating conditions in a particular area or with respect to particular structures, the problem is a local one which should be addressed by State regulatory agencies. Several commenters believed that, where such regulatory action has been necessary in the past, State activity has been effective in responding to the safety problem on a case-by-case basis. The issuance of a Federal standard by walkways might be counterproductive since it would generally preempt the States from carrying out their responsibilities under existing State laws except where an essentially local safety hazard could be identified. 42 Fed. Reg. 22,185 (1977). With respect to bridge safety standards FRA stated that the OSHA regulations would not apply to ladders, platforms, and other surfaces on signal masts, cantanary systems, railroad bridges, turntables, and similar structures...These are areas which are so much a part of the operating enforcement that they must be regulated by the agency with primary responsibility for railroad safety.

43 Fed. Reg. 1058, 10586 (March 14, 1978). Ultimately, the FRA never adopted its three initial proposed standards nor the contemplated series of standards. Instead, the FRA terminated its rulemaking proceedings and issued the Policy Statement. The FRA announced it would "determine the need for and of general standards to address individual hazards" to such surface keeping in mind the requirements of proper clearances. Id at 10,587.

Once again, the FRA has not enacted such regulations since the issuance of this Policy Statement, and at the present time FRA is disregarding a specific Congressional mandate. In order to satisfy certain Congressional inquiries and stay in the clear. Secretary Skinner attempted to exonerate FRA for its failings in a letter to Chairman Luken on July 13, 1990. See Attached Exhibit 3. However, Secretary Skinner takes a position that contradicts what FRA and the railroads have been saving for the last twelve years. In his letter, Secretary Skinner states

Finally, section 19 required that the Secretary issue such rules as may be necessary for safety of workers on railroad bridges. As explained at the June 28 meeting with members of your staff, the Occupational Safety and Health Administration (OSHA) currently has such standards for the safety of workers on railroad bridges. The proposal submitted by the BMWE and the AAR was comprised of portions of those OSHA standards, but departed from them in many respects. Thus, the questions before FRA have been (i) whether, as a matter of agency resources, FRA should take over this responsibility from OSHA via section 4(b)(1) of the OSH Act, and (ii) whether, as a matter of safety, existing OSHA standards can and should be adjusted to account for the unique railroad environment.

Secretary Skinner's excuse for the delay is lame. For twelve years FRA has forced OSHA to stand aside, forced states to bear witness to unsafe work environments and forced rail labor to work without adequate safety protections. FRA's March 1989, letter and Secretary Skinner's letter need some explanation.

The FRA's ukase directly conflicts with the statutory plain language, the legislative the legislative history, and the overall purpose of the RSIA. The RSIA constitutes a rejection FRA's refusal to act. Congress has expressly refused to sanction the decision of the FRA that the regulation of walkways is either unnecessary or inappropriate.

B  Inspection and Maintenance of Signals At Grade Crossings

One of the most alarming safety problems in the railroad industry exists at grade crossings. We have long been concerned that this area of railroad safety has been relegated a low priority by the FRA. Our concerns are real and FRA's treatment of the subject matter has not diminished our fears.




FOOTNOTES:
[[1]] House Committee on Government Operations, H.R. Rep. No. 393, 97th Cong., 1st Sess. 2 (1981).

[[1]] Although Congress directed the FRA to issue the new rules and regulations in twelve months, the FRA has in fact not yet done so. However, the Notice for Proposed Rulemaking was issued on January 30, 1991(56 Fed. Reg. 3434), a hearing was held, and written comments were solicited. In a November, 1991 article in the magazine Traffic World, Gilbert Carmichael, the Administrator for the FRA, pledged to get the rules out in early 1992 (A copy of the article is attached and marked as Exhibit A). Due, no doubt, to President Bush's moratorium, the FRA has not yet issued the regulations.

[[2]] It is true that in 1991, the Administrator of the FRA confused the question of FRA/OSHA jurisdiction by arguing that the Policy Statement did not intend to OSHA from all aspects of bridge safety. 56 Fed. Reg. at 3435 (January 30, 1991). This conflicts with the previously held position of the FRA, as stated in the Policy Statement and as noted in a letter dated March 7, 1989 from the Assistant Chief Counsel for Safety of the FRA (attached and marked as Exhibit B).

Significantly, there is no recognized principle of law by which the FRA may now overrule or trump the explicit language of the 1978 Policy Statement by mischaracterising its purpose. The Congressional intent in the matter of railroad bridges is clear, and is unequivocally confirmed by federal case law, the 1978 Policy Statement itself. This body of law cannot now be changed by any ambiguity engendered by the FRA's comments. Under federal law, such retrospective history, or "loser's history," as it had sometimes been labeled by federal courts, is not entitled to any weight. Consumer Product Safety Com'n v. QTE Sylvania, Inc., 447 U.S. 102 (1980); Matter of Russell Sinclair, 870 F.2d 1340, 1342-43 (7th Cir. 1989); Northern Group Services v. Auto Owners Ins. Co., 833 F.2d 85, 92, (6th Cir. 1987).