February 11, 2009

CHICAGO (Feb. 11)—A three-judge panel of Federal Appeals Court judges rejected Norfolk Southern Corp.’s challenge to the Illinois Commerce Commission’s 2005 Safe Walkway Rule, allowing Illinois to continue enforcing the measure.

The U.S. Court of Appeals for the Seventh Circuit reaffirmed a 2007 U.S. District Court ruling that found the Illinois rule does not conflict with any current or proposed federal railroad safety rule.

Under U.S. law, federal law pre-empts state laws regarding railroad safety if the subject matter is “substantially subsumed” by the federal government.. States may promulgate railroad-safety regulations only in areas where federal regulation does not exist.

But the Appeals Court, like the District Court before it, said the Federal Railroad Administration (FRA) does not have any walkway-safety rules and has not slated walkway safety as part of its rulemaking process, leaving Illinois free to enforce the Walkway Safety Rule which the Illinois Commerce Commission issued at the request of the General Assembly in 2005.

The ruling was the second victory for the state since attorneys for Norfolk Southern first challenged the Illinois rule in a 2005 lawsuit. In that suit, NS claimed that the FRA already had track-safety rules that “covered” the issue of safe walkways.

But U.S. District Court Judge Virginia M. Kendall rejected NS’s claim, finding that FRA’s regulations covered only the suitability of the track structure for safe train operation, not the safety of railroad personnel working on the ground next to the tracks.

Appeals Court Justices Frank H. Easterbrook, William Joseph Bauer and Diane S. Sykes reaffirmed that distinction in today’s ruling.

“The major problem with the railroad’s position is that no federal regulations deal with walkways,” the Appeals panel wrote.

“The Court’s affirmative decision in this case reinforces the intent of the Illinois General Assembly to establish a distinction between the construction of railroad tracks and the construction of a walkway that might be next to a track,” said UTU Illinois Legislative Director Robert Guy.

In its original court appearance, NS contended that building walkways to assure safe footing would require small-diameter ballast between tracks, which would interfere with the drainage of water from the large-diameter ballast needed to support heavy trains.

That drainage, the railroad said, required the ballast under the tracks to be higher than the adjacent walkways, with a V-shaped space between adjacent tracks to catch and channel runoff from the tracks during rainstorms.

But the Appeals Court reaffirmed the District Court’s finding that NS’s expert witnesses had failed to introduce evidence confirming their contention. Moreover, the judges noted that photos taken of NS property showed that ballast was not ditched between the tracks, and NS had presented no conclusive evidence that the lack of ditches had led to any track instability or accidents.

“The court found that current Illinois rules, and similar rules used in other states, had not caused any demonstrable structural or safety problems,” Guy said. “The judges applied the judicial doctrine known as ‘inference of silence.’ That means that, when asked, NS could provide no tangible proof that building safe walkways next to its tracks would cause instability problems or in any way affect the safe movement of trains.”

Guy reminded members that the rule automatically governs new railroad yards, or those subject to reconstruction. But it may also be applied to existing tracks when footing is found to be hazardous due to things like large ballast, debris, or a lack of uniformity, after hazards are identified and written up to the carrier.

“We fought long and hard to make sure our members would not be subject to irregular or hazardous walking conditions,” Guy said. “The fact that two courts have found in our favor suggests that our approach was the right one and our effort was effective.”