Illinois Cent. Gulf R. Co. v. Tennessee Public Service Com'n

• Decision Date: 22 May 1987
• Citation: 736 S.W.2d 112
• Parties: ILLINOIS CENTRAL GULF RAILROAD COMPANY, Petitioner, v. TENNESSEE PUBLIC SERVICE COMMISSION, Respondent. 736 S.W.2d 112
• Court: Tennessee Court of Appeals

Page 112

736 S.W.2d 112

ILLINOIS CENTRAL GULF RAILROAD COMPANY, Petitioner, v. TENNESSEE PUBLIC SERVICE COMMISSION, Respondent.

736 S.W.2d 112

Court of Appeals of Tennessee Middle Section, at Nashville.

May 22, 1987.

Permission to Appeal Denied by

Supreme Court Aug. 31, 1987.

Tyree B. Harris, III, Dodson, Harris, Robinson & Aden, Nashville, Jeffrey S. Berlin, John A. Menke, Verner, Liipfert, Bernhard, McPherson and Hand, Chartered, Washington, D.C., Richard M. Kamowski, Commerce Atty., Illinois Cent. Gulf R.R., Chicago, Ill., for petitioner.

Donald L. Scholes, Asst. Gen. Counsel, Tennessee Public Service Com'n, Nashville, for respondent.

OPINION

CANTRELL, Judge.

In an order issued on July 11, 1986, the Tennessee Public Service Commission rejected the contention of the Illinois Central Gulf Railroad Company that questions of safety standards for the construction and maintenance of walkways in railroad yards had been preempted by federal law. The PSC therefore affirmed an order of an administrative law judge finding that nine areas in ICG's Memphis yard were in violation of the PSC's walkway regulations. ICG appeals that decision under Rule 12 Tenn.R.App.Proc., and asserts, in addition to its preemption claim, that the PSC misapplied the regulations and that the decision is not supported by substantial and material evidence in the record.

On August 14, 1985, the PSC issued a show cause order directing ICG to appear at a hearing and show cause why it should not be found in violation of T.C.A. Sec. 65-3-123. Section 65-3-123 requires railroads operating in Tennessee to abate or remove dangerous and unhealthy conditions along their rights-of-way, in yards, and in terminals. The show cause order stated that the alleged violations were based on the fact that eleven areas in ICG's Memphis yard violated the PSC regulations entitled "Specifications of Safety Standards in Terminals, Yards, and along Rights-of-Way of Railways--Walkways." Section 1220-3-1-.11, Tenn.Admin.Comp. On December 6, 1985, an administrative law judge found that nine of the eleven areas were in violation of the walkway regulations.

ICG took exception to the initial order and asserted before the PSC that the walkway rule had been preempted by federal railroad safety regulations. The PSC affirmed the decision of the administrative law judge.

A. THE PREEMPTION ISSUE

Article VI of the U.S. Constitution provides that laws of the United States made under the authority of the U.S. Constitution are the supreme law of the land. Thus, state laws that interfere with or are contrary to federal law are a nullity. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). The power given to Congress by Article VI of the Constitution results in the so-called preemption doctrine: "The supremacy clause of Article VI of the Constitution provides Congress with the power to preempt state laws." Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 335, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369 (1986). Whether Congress has done so in any particular case is a question often litigated.

Cases in which there is no direct conflict between the state and federal laws are difficult unless Congress has expressly stated its intent to occupy the field to the exclusion of the states. Rice v. Santa Fe Elevator Company, 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). Where neither a direct conflict nor an expressed intent to preempt are present, the courts must judge from an examination of the respective laws or regulations whether preemption has in fact occurred. Always the critical question is whether Congress intended that federal regulations supersede state law. Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 106 S.Ct. 1890, 1896, 90 L.Ed.2d 369.

The PSC adopted a walkway regulation in 1970. It requires every railroad to maintain working areas in yards, terminals, within switching limits, and in and at other points where switching may take place in the ordinary course of business in a safe condition. The regulation went on to provide that any walkway would be presumed safe if it:

(a) Is approximately level with the top of the crossties for a distance of approximately 6 inches and thereafter slopes at no greater than 8 to 1 or approximately 7?;

(b) Extends for a distance of approximately ten feet from the center line of track on both sides, except where a lesser distance is otherwise provided for clearance under Sec. 65-623 through Sec. 65-630 Tennessee Code Annotated;

(c) Has a reasonably smooth surface. Stone or gravel surfacing next to main lines shall be such that one hundred percent will pass a 2 1/2 inch screen, ninety-five to one-hundred percent will pass a 2 inch screen, thirty-five to seventy percent will pass a 1 1/2 inch screen, fifteen percent or less will pass a 1 inch screen and zero to five percent will pass a 1/2 inch screen. Stone or gravel surfaces next to walkways adjacent to yard tracks, industrial tracks, team or piggy-back tracks shall be on the mixture commonly called 3/4 inch, or may be such that one hundred percent is expected to pass a 1 inch screen, ninety-five to one hundred percent will pass the 3/4 inch screen, fifteen to twenty-five percent will pass the 1/2 inch screen and less than ten percent will be smaller than 3/8 inch.

(d) Is kept reasonably free of debris or other objects which pose a hazard to normal walking in the area.

Tenn.Admin.Comp. Sec. 1220-3-1-.11.

The regulation went on to provide that whether a walkway that did not conform to the regulation was unsafe was to be decided on a case-by-case basis and that the regulation was not to be construed as a blanket order but rather as a recommended practice.

Also in 1970, the U.S. Congress adopted the Federal Railroad Safety Act (FRSA). Congress declared that the purpose of the FRSA was to "promote safety in all areas of railroad operations." 45 U.S.C. Sec. 431. Congress determined that the only way to effectively regulate railroad safety was to establish a broad national scheme of railroad safety regulation, as opposed to the then existing patchwork system of federal and state regulations. Therefore Congress enacted Section 205 of FRSA, 45 U.S.C. Sec. 434. It provides:

The Congress declares that laws, rules regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.

Thus, all parties agree that Congress expressly indicated an intent to preempt state law on the subject of railroad safety. However, Congress made an exception for two particular situations. They are:

(1) State rules, regulations, orders, or standards where the Secretary of Transportation has not adopted a rule or regulation covering the same subject matter.

(2) State requirements that are more stringent than the federal rule or regulation if the requirement:

(a) Was drawn to eliminate or reduce an essentially local safety hazard; and

(b) Was not incompatible with any federal rule or regulation; and

(c) Did not create an undue burden on interstate commerce.

Therefore to escape preemption, the Tennessee Walkway Regulation must fit into one of the above exceptions. Neither the PSC nor the intervening Union contends that the regulation comes within the second exception. The PSC order does not mention that exception and the point is not argued in the briefs. We think that the language of the walkway regulation makes it a broad general regulation drawn for statewide application. Therefore it is not drawn to address a local condition and cannot come within the second exception.

Has the Secretary of Transportation adopted a rule or regulation covering the same subject matter? The Secretary delegated his responsibility under the FRSA to the Federal Railroad Administration (FRA) "to prescribe, or recommend, appropriate rules, regulations, orders, and standards for all areas of railroad safety", Section 431 of the FRSA. 49 C.F.R., Sec. 1.49(m). In 1971 the FRA adopted its "track safety standards". 49 C.F.R., Secs. 213.1-.241 (1985). Subpart B of these standards deals with the roadbed. It provides:

Sec. 213.31 Scope. This subpart prescribes minimum requirements for roadbed and areas immediately adjacent to roadbed.

Sec. 213.33 Drainage. Each drainage or other water carrying facility under or immediately adjacent to the roadbed must be maintained and kept free of obstruction, to accomodate expected water flow for the area concerned.

Sec. 213.37 Vegetation. Vegetation on railroad property which is on or immediately adjacent to roadbed must be controlled so that it does not--

(a) Become a fire hazard to track carrying structures;

(b) Obstruct visibility of railroad signs and signals;

(c) Interfere with railroad employees performing normal trackside duties;

(d) Prevent proper functioning of signal and communication lines; or

(e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.

Subpart D deals with track structure, but its scope is defined as:

[Prescribing] minimum requirements for ballast, crossties, track assembly fittings, and the physical condition of rails.

Thus, the answer to the question of whether the PSC walkway regulation has been preempted by the federal law depends on whether...