On January 31, 2001, attorneys for Hoey & Farina, the Federal Railroad Administration and the Surface Transportation Board joined forces in the continuing fight for railroad safety against attorneys representing the Norfolk Southern Railroad and the Association of American Railroads.
The place for that confrontation was the United States Court of Appeals for the Sixth Circuit in Cincinnati, Ohio where oral argument was presented in the case of Tyrrell vs. The Norfolk Southern Railway Company. The question presented to the court is potentially one which could disrupt the entire system of railroad safety regulation at the federal, state and local levels. The legal issue was, on its face, seemingly dry and unexciting, but the Sixth Circuit Court of Appeals ruling will have a direct impact on the life and death, flesh and blood safety issues for every working railroad man and woman.
Specifically, the court was asked whether the Surface Transportation Board (STB) has exclusive jurisdiction over all matters of railroad operation and construction under the Interstate Commerce Commission Termination Act (ICCTA) so as to pre-empt all other federal, state and local railroad regulations. Pre-emption means the voiding of laws and regulations issued by one or more governmental bodies in favor of the jurisdiction over the same subject matter given to a preferred governmental body. Since the Surface Transportation Board has never issued a single safety regulation, the railroad’s position that the STB has exclusive jurisdiction over all matters of railroad operations and construction would mean that every safety regulation issued by the Federal Railroad Administration (FRA) as well as every state and local law dealing with railroad operations and construction would be replaced by a regulatory void. The logical result of the railroad’s proposed interpretation of ICCTA would be to leave all railroad workers, not to mention the general public, without a single effective railroad safety law or regulation.
THE HISTORY OF THE DISPUTE
On June 25, 1998, at approximately 11:00 p.m. Fred Tyrrell was working as a student conductor at the Norfolk Southern hump yard in Bellevue, Ohio. As he was walking between two sets of tracks a black tank car, which was humped on the track immediately adjacent to where he was working, clipped Mr. Tyrrell on his shoulder causing him to spin around and fall, resulting in the amputation of his lower right leg. The inspection of the track by Hoey & Farina proved that the Norfolk Southern had violated the Ohio 14-foot track clearance regulation by roughly 4 inches. Although to a person not experienced in railroad yard operations a few inches might not seemed like a lot, the actual working space between the sides of railroad cars with a 14-foot track clearance is often less than 4 feet, so that the shaving of several more inches from an already perilously narrow margin of safety can often be the crucial difference between life and death to a switchman. In Illinois alone, in the year in which the Tyrrell case has been on appeal, at least two trainmen, Gary Sundell of the Burlington Northern Santa Fe Railroad and Teresa Robin Smith of CSX Transportation, were killed in separate incidents due to similar violations of the Illinois minimum track clearance regulation.
Both the Surface Transportation Board and the Federal Railroad Administration have taken issue with the interpretation of the ICCTA by the Norfolk Southern Railroad, and its alter ego, the Association of American Railroads. Those federal agencies charged with overseeing railroad operations in the United States by acts of Congress are in agreement with Hoey, Farina & Downes that the Surface Transportation Board has exclusive jurisdiction only in regards to the economic regulation of railroads, but that the Federal Railroad Administration is primarily charged with regulation of railroad safety. The FRA has promulgated hundreds of regulations to promote railroad safety which are binding on all railroads throughout the country, and under the Federal Railway Safety Act, any area of railroad safety which is not directly covered in FRA regulations is left to each of the fifty states to regulate. Consequently, since the FRA has not issued a track clearance regulation, states like Ohio, Illinois and California, and dozens of other states, have promoted railroad safety by issuing their own minimum track clearance regulations. Despite the lip service that railroads continuously give to promoting railroad safety, their opposition to minimum track clearances is illustrative of how they put profits above protection.
The more tracks the railroad can place in the limited space of a railroad yard, the more freight it can handle, and the more freight it can handle, the higher the profits. Thus, the railroads have an incentive to squeeze tracks as closely together as possible. The narrow working space between the sides of railroad cars, combined with welded rail, modern ball bearing wheels, and the otherwise silent operations of a railroad hump yard, provide a perfect environment for catastrophic injury or death. According to FRA statistics, from 1992 to 1998, 76 railroad workers were killed in switching operations, and considerably more workers suffered catastrophic injuries, including amputations. With this record, railroads should be ashamed of themselves, not only for failing to comply with minimum track clearance regulation, but creating bad faith legal arguments to free themselves of any safety regulation whatsoever.
The battle for railroad safety, and for fair compensation for injured railroad workers, is a battle that Hoey & Farina usually fights in the courtroom standing alone. In the case of Tyrrell v. Norfolk Southern Railroad, the Federal Railroad Administration and Surface Transportation Board have proved to be welcome company.