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Straight
Track #48 FRA & Surface Transportation Board
Join Forces With Hoey & Farina Against
The NS & Association Of American Railroads
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James
Farina
Hoey & Farina
Partner
Tel Toll Free: 1-888-425-1212
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.
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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.
The final decision of the Sixth Circuit will be published at this
website in the coming weeks.
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