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Norfolk Southern Railway Co. v. Box

December 17, 2007

NORFOLK SOUTHERN RAILWAY CO., PLAINTIFF,
v.
CHARLES E. BOX, ET AL. DEFENDANTS.



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.

This Court previously held that 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, this Court found that 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. To resolve these disputed issues of fact, this Court held a bench trial. Based upon the evidence and testimony presented, this Court finds that Norfolk Southern does not have a typical rail yard or yard track design. Also, this Court finds that Norfolk Southern has not proved that having walkways in the Calumet and Decatur rail yards prevents adequate drainage of the track structure. Given the foregoing facts, this Court concludes that Norfolk Southern has not proved that the State Rule stands as an obstacle to the goals of the FRSA.

I. The State and Federal Rules

The State Rule has four sections. The first section defines the Rule's scope. It provides that rail carriers must create walkways adjacent to those portions of yard tracks, constructed or reconstructed after February 15, 2005, where rail carrier employees frequently work on the ground performing switching activities. 92 Ill. Admin. Code 1546.10(a)-(b). The second section lists the general requirements for the walkways. 92 Ill. Admin. Code 1546.20. The first requirement is that the walkways be surfaced with asphalt, concrete, planking, grating, native material, crushed material, or other similar material. 92 Ill. Admin. Code 1546.20(a). When crushed material is used for the walkways, the State Rule provides that "100% of the material must be capable of passing through a 1 1/2" square sieve opening and 90-100% of the material must be capable of passing through a 1" square sieve opening." Id. Other requirements include that the walkways must have a reasonably uniform surface, be maintained in a safe condition without compromising track drainage, have cross slopes not exceeding 1" of elevation for each 8" of horizontal length in any direction, and be a minimum width of 2 feet and be kept reasonably free of spilled fuel oil, sand, posts, rocks, and other hazards or obstructions. 92 Ill. Admin. Code 1546.20(b)-(e). The third section repeats that the State Rule applies only to "New Yard Tracks" -- those constructed or reconstructed after February 15, 2005 -- and defines "frequently" for purposes of the Rule as at least 5 days per week, 1 shift per day. 92 Ill. Admin. Code 1546.110(a)-(b).

The last section addresses when walkways may be required on "Other Tracks." 92 Ill. Admin. Code 1546.120(a). The last section allows the ICC to order the construction of a walkway on "other tracks" when "rail carrier employees who frequently work adjacent to a portion of track performing switching activities are exposed to safety hazards because of the lack of a walkway." Id. "Other Tracks" refer to "Old Yard Tracks" and, therefore, allows the ICC to require walkways when it identifies a specific safety hazard caused by the lack of a walkway along yard tracks constructed before February 15, 2005.

Pursuant to its delegated authority, the FRA adopted a set of "Track Safety Standards." See 49 C.F.R. §§ 213.1-213.241; § 213.1 ("This part prescribes minimum safety requirements for railroad track that is part of the general railroad system of transportation"). The safety standards deal with such issues as train speed (§ 213.9), track repair, maintenance and inspection (§§ 213.11, 213.231), roadbeds (§ 213.31), track geometry (§ 213.51) and track structure (§ 213.101). Plaintiff asserts that the State Rule conflicts with the federal regulations dealing with roadbed and track structure. Subpart B of the Track Safety Standards "prescribes minimum requirements for roadbed and areas immediately adjacent to roadbed." 49 C.F.R. § 213.31. Specifically, it requires that roadbeds must have adequate drainage*fn1 and that vegetation on railroad property must be controlled.*fn2

Subpart D, titled Track Structure, "prescribes minimum requirements for ballast, crossties, track assembly fittings, and the physical conditions of rails." 49 C.F.R. § 213.101. With regards to ballast, the Federal Rules require that it: (i) transmit and distribute the load of the track, (ii) restrain the track, (iii) provide adequate drainage, and (iv) maintain proper track crosslevel, surface, and alinement. 49 C.F.R. § 213.103.

II. Findings of Fact

Construction of a yard track starts below the surface with the subgrade (sometimes called roadbed), which is the compacted earth that forms the foundation of the track structure. (Pl. Exh. 104; Trial Transcript (hereinafter, "Tr.") 108:13-15, 259:1-2 (McCracken)). A layer of subballast lays atop the subgrade. (Tr. 108:16-18 (McCracken)). The subballast is a compacted layer of very small, crushed stone. (Tr. 108:19-109:9 (McCracken)). The ballast section sits atop the subballast. (Tr. 109:10-12 (McCracken)). Ballast is made of crushed stone.*fn3 (Tr. 109:17-18 (McCracken)). Crossties sit in the ballast section. (Pl. Exh. 201). Crossties are beams that sit perpendicular to the rails. (Tr. 110:25-111:8) (McCracken)). Rails are fastened to the top of the crossties. (Tr. 111:1-11 (McCracken)).

The ballast section performs four functions. (Tr. 55:5-18 (Inclima), 109:19-110:22 (McCracken)). First, the ballast transmits and distributes the load to the subgrade. (Tr. 55:5-18 (Inclima), 109:19-110:22 (McCracken), 279:25-281:11 (Uzarski)). Second, the ballast restrains the track laterally, longitudinally, and vertically. (Tr. 55:5-18 (Inclima), 109:19-110:22 (McCracken)).

49 C.F.R. § 213.37.

Third, the ballast provides adequate drainage of the track. (Tr. 55:5-18 (Inclima), 109:19-110:22 (McCracken)). Fourth, the ballast maintains proper track crosslevel, surface, and alignment. (Tr. 55:5-18 (Inclima), 109:19-110:22 (McCracken)). The Federal Rules require that the ballast section serve each of these functions. 49 C.F.R. § 213.103.

The compacted subballast, which sits beneath the ballast section, serves to divert water draining through the ballast section away from the subgrade and to distribute the load of passing trains. (Tr. 108:19-109:9 (McCracken)). The subgrade provides additional track stability. The moisture content must be kept very low in the subgrade to keep it from becoming muddied and shifting under the load of passing trains. (Tr. 108:24-109:2; 116:5-9 (McCracken), 288:12-291:3 (Uzarski)).

Norfolk Southern has approximately 1,000 miles of track in Illinois. (Tr. 104:5-8 (McCracken)). Approximately 350 miles of its track are in its 32 rail yards in Illinois. (Tr. 104:9-14 (McCracken)). A rail yard is made up of many yard tracks. Norfolk Southern's rail yards have anywhere from 3 to 150 yard tracks running parallel to each other. (Tr. 125:4-11 (McCracken)). Yard tracks, as opposed to mainline tracks, are where trains are broken apart into individual railcars and rearranged to form new trains. (Tr. 28:9-29:9 (Inclima)). Individual railcars are placed on different tracks depending on their destination. (Id.). Maintenance on the railcars is also performed in rail yards. (Tr. 132:21-133:4 (McCracken)). Mainline tracks are generally through tracks that carry ...


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