March 3, 2006
CHICAGO (March 3)—Lawyers for the UTU Illinois Legislative Board filed a petition in Federal District Court to intervene in an attempt by Norfolk Southern to overturn the Safe Railroad Walkways Rule adopted last year by the Illinois Commerce Commission.
The UTU’s action came after Norfolk Southern lawyers filed suit against the state arguing that federal law preempted the ICC’s regulation.
“There is no surprise here,” said UTU Illinois Legislative Director Joseph C. Szabo. “There was never any question that there would be a test case – and that NS would probably be filing that test case – it was only a matter of when. Now we’ll be able to get it resolved and out of the way.”
Norfolk Southern’s suit claims that the Federal Railroad Safety of 1970 establishes federal railroad-safety regulations and nullifies any state regulation for which a federal regulation covers the same specific subject matter.
Norfolk Southern’s lawyers said the Illinois regulation is pre-empted by paragraph 213.103 of Title 49 of the Code of Federal Regulations, which regulates the ballast used to support railroad tracks. That paragraph, NS claimed, mandates that “all track shall be supported by material which will…transmit and distribute the load of the track and railroad rolling equipment to the subgrade; restrain the track laterally, longitudinally, and vertically…; provide adequate drainage for the track; and…maintain proper track crosslevel, surface and alinement.”
“Norfolk is trying to take ‘track standards’, which FRA regulates, and blur them into ‘walkway standards’, which FRA does not regulate,” Szabo said. “As long as FRA has not ‘substantially subsumed’ the subject matter the state has the authority to act.”
“FRA does not have any walkway safety standard,” said Szabo. “Numerous states do and have for decades.”
He felt confident that the state and the union would overcome the objections of NS’s lawyers.
“For one thing, the Illinois Attorney General will be arguing the case to protect the walkway regulation,” Szabo said. “And the AG will be joined by UTU’s lawyer, Larry Mann. Not only is Larry one of the most experienced railroad labor lawyers in the nation, he also was a principal author of the Federal Railroad Safety Act of 1970. He knows what the federal regulation means. He wrote it.”