The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
The Illinois Commerce Commission adopted a regulation requiring rail carriers to provide walkways adjacent to yard tracks constructed or reconstructed after February 15, 2005 ("the State Rule"). Plaintiff Norfolk Southern Railway Co. ("Plaintiff" or "Norfolk Southern") seeks a declaration that this regulation is preempted by regulations promulgated pursuant to the Federal Railway Safety Act ("FRSA") ("the Federal Rules"). Plaintiff also asks this Court to enjoin the State permanently from enforcing its walkway regulation.
Norfolk Southern has moved for summary judgment on its claims. Because the Federal Rules do not cover the same subject matter as the State Rule, the State Rule is not expressly preempted under the FRSA. Additionally, genuine issues of material fact exist as to whether the State Rule will either make it impossible for Plaintiff to comply with federal requirements for track safety and structure or stand as an obstacle to the accomplishment of the full purposes of those requirements. These disputed issues of fact preclude judgment as a matter of law on whether the State Rule is impliedly preempted because it conflicts with the Federal Rules.
Norfolk Southern is a rail carrier operating throughout the Eastern and Central United States. (SOF ¶ 1.) Charles Box and the other defendants are Commissioners of the Illinois Commerce Commission ("ICC"). (SOF ¶ 2.) The ICC has exclusive jurisdiction over rail carrier operations within the State of Illinois, except to the extent preempted by valid federal statute, regulation or order. 625 ILCS § 5/18c-7101.
On February 12, 2003, the United Transportation Union petitioned the ICC to adopt a rule mandating that walkways be placed adjacent to tracks in Illinois. (SOF ¶ 32.) On October 2, 2003, an ICC Administrative Law Judge held an evidentiary hearing on the Union's proposed rule. (Answer ¶ 34.) The ALJ then issued a proposed order on January 7, 2004, concluding that the walkway rule was "not in the best interest of railroad safety" and would result in railroad tracks "which will not conform to FRA standards for track support." (SOF ¶ 33); (Answer ¶¶ 31-38.) Before the ICC adopted or rejected the ALJ's proposed order, the General Assembly passed Public Act 093-0791. (Answer ¶ 39.) The Act, which became effective on July 22, 2004, stated that "the [ICC] shall adopt rules requiring safe walkways for railroad workers in areas where work is regularly performed on the ground." Public Act 093-0791. The Act further provided that the "rules must include, at a minimum, a requirement that any walkway (i) have a reasonably uniform surface, (ii) be maintained in a safe condition, and (iii) be reasonably free of obstacles, debris, and other hazards." Id. Pursuant to this mandate, the ICC adopted a requirement "that rail carriers must provide walkways adjacent to those portions of yard tracks constructed after February 15, 2005 where rail carrier employees frequently work on the ground performing switching activities." 92 Ill. Admin. Code 1546.10. The State Rule also set general requirements for the design and construction of the walkways. See 92 Ill. Admin. Code 1546.20; 1546.110; 1546.120.
The rails of a track sit on a roadbed. (SOF ¶ 7.) The roadbed is built from the ground up, starting with the subgrade (soil and other naturally occurring materials). (Id.) A layer of subballast (crushed rocks) is added to the subgrade. (Id.) A ballast layer is then added to the subballast. (Id.) Ballast typically is comprised of rocks, the size of which will depend on the type of track. (SOF ¶ 10.) The purpose of the track support, and the ballast in particular, is to keep the ties and rails in place. (SOF ¶¶ 8, 11.)
Proper drainage is a key element of track support and the safe operation of the railroad. (SOF ¶ 12.) In order to provide adequate track support, the ballast must drain water from the track structure. (SOF ¶ 14.) The size of the ballast directly affects the space available for the passage of water through the ballast section. (SOF ¶ 19.) The larger the ballast, the larger the space between individual pieces of ballast. (Id.) The size of the ballast needed to facilitate proper drainage varies based on the usage of the track. (SOF ¶ 21.) Water that cannot drain from the track structure will mix with soil in the subgrade to form mud. (SOF ¶ 15.) The muddy ballast further restricts draining of the ballast section. (SOF ¶ 15.)
Norfolk Southern's trains run on both mainline and yard tracks. (SOF ¶ 37.) Mainline tracks are stand-alone tracks over which trains move at high speeds. (SOF ¶ 37.) Yard tracks are those non-mainline tracks in railyards that are used to perform switching, maintenance, and certain other operations. (SOF ¶ 37.) Switching operations also occur on Norfolk Southern's mainline tracks. (SOF ¶¶ 44-45.)
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, a court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. Of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. See Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted."). An adequate rebuttal requires a citation to specific support in the record, an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001).
Plaintiff asks this Court to "ignore any evidence not set forth by Defendants in a separately filed Local Rule 56.1(b)(3)(B) statement of additional facts." Local Rule 56.1(b)(3)(B) requires a party opposing summary judgment to file "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific reference to the affidavits, parts of the record, and other supporting materials relied upon." Defendants appear to have done just as Local Rule 56.1(b)(3)(B) requires. Perhaps, Plaintiff is asserting that the information should have been presented under Rule 56.1(b)(3)(C) which requires "a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." In any respect, Defendants have complied with the key component of Local Rule 56.1 in that they included specific references to the evidence in the record that support their response to Plaintiff's Statement of Material Facts. Plaintiff also states that Defendants failed to put in the record the declaration from Mr. Sullivan and the deposition of Jeff McCracken. The Court received a copy of these materials on December 5, 2005 along with Defendants' Opposition. As such, all of Defendants' evidence is properly before the Court and has been considered.
The Supreme Clause of the United States Constitution states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the Supreme Law of the land." U.S. Const., art. VI, cl. 2. Under the Supremacy Clause, federal law preempts state law in three circumstances: (1) when Congress explicitly defines the extent to which its statute preempts state law ("express preemption"); (2) when state law attempts to regulate conduct in a field that Congress intended the federal government to occupy exclusively ("field preemption"); or (3) when state law actually conflicts with federal law ("conflict preemption"). See English v. General Elec. Co., 496 U.S. 72, 78-79 (1990); Gracia v. Volvo Europa Truck, N.V., 112 F.3d 291, 294-295 (7th Cir. 1997). With any preemption "the ultimate touchstone" is congressional purpose. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
The party advocating preemption bears the burden of proof. See Fifth Third Bank ex rel. Trust Officer v. CSX Corp., 415 F.3d 741, 745 (7th Cir. 2005). Norfolk Southern argues that the State Rule regarding walkways is expressly preempted because the FRA has prescribed regulations covering this same subject matter, specifically, the area of track support and trackside material.
Plaintiff additionally argues that the State Rule is preempted because it conflicts with the federal regulations by preventing proper drainage and track stability and eliminating engineering flexibility to address such track safety issues.
"Express preemption occurs when a federal statute explicitly states that it overrides state or local law." Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 696-97 (7th Cir. 2005). Section 434 of the FRSA evinces congressional intent to preempt "at least some state law," but this Court is still required to "identify the domain expressly pre-empted by that language." Medtronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996) (citation and internal quotation marks omitted); English v. General Elec. Co., 496 U.S. 72, 78-79 (1990) ("Congress can define explicitly the extent to which its enactments pre-empt state law"). This Court begin its analysis with the plain wording of the express preemption clause because it is that wording which best reflects Congress' intent. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) ("If the statute contains an express pre-emption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent").
Congress enacted the Federal Rail Safety Act ("FRSA") in 1970 "to promote safety in every area of railroad operations and to reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. To achieve this goal, Congress gave the Secretary of Transportation broad authority "to prescribe regulations and issue orders for every area of railroad safety." 49 U.S.C. § 20103. The Secretary of Transportation, in turn, delegated this authority to the FRA. See Mich S. R.R. Co. v. City of Kendallville, 251 F.3d 1152, 1154 (7th Cir. 2001) ("Regulations [under the FRSA] are promulgated and enforced by the Federal Railway Administration"). Section 434 of the FRSA, the statute's preemption clause, provides that a state law, regulation or order related to railroad safety may continue in force "until such time as the [FRA] has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement."*fn1 49 U.S.C. § 20106; see Shots v. CSX Transp., Inc., 38 F.3d 304, 307 (7th Cir. 1994) ("If the Secretary promulgates a regulation that covers the subject matter of some state safety requirement, the state requirement must give way (with an inapplicable exception) even if there is no direct conflict"). A State may add to the federal requirements on a subject matter only when it "is necessary to eliminate or reduce an essentially local safety or security hazard," is not incompatible with any other federal law, regulation, or order, and "does not unreasonably burden interstate commerce." 49 U.S.C. § 20106. Thus, although the FRA provides that railroad safety standards shall be nationally uniform to the extent practicable, it permits states to regulate in two circumstances: (1) when there is no federal regulation "covering" the subject matter, and (2) when it is necessary to eliminate or reduce an essentially local ...