Southern Pacific Transp. v. Public Utilities Com'n, C-86-2480-WWS.

• Decision Date: 03 November 1986
• Docket Number: No. C-86-2480-WWS.,C-86-2480-WWS.
• Citation: 647 F. Supp. 1220
• Court: U.S. District Court — Northern District of California
• Parties: SOUTHERN PACIFIC TRANSPORTATION COMPANY, Plaintiff, v. PUBLIC UTILITIES COMMISSION OF the STATE OF CALIFORNIA, et al., Defendants.

647 F. Supp. 1220

SOUTHERN PACIFIC TRANSPORTATION COMPANY, Plaintiff, v. PUBLIC UTILITIES COMMISSION OF the STATE OF CALIFORNIA, et al., Defendants.

No. C-86-2480-WWS.

United States District Court, N.D. California.

November 3, 1986.

COPYRIGHT MATERIAL OMITTED

John MacDonald Smith, Ann Fingarette Hasse, Carol A. Harris, San Francisco, Cal., for plaintiff.

Janice E. Kerr, J. Calvin Simpson, Harvey Y. Morris, Public Utilities Com'n of State of Cal., San Francisco, Cal., Lawrence M. Mann, Alper, Mann & Reiser, Washington, D.C., F.L. Nelson, Hildebrand, McLeod & Nelson, Oakland, Cal., Paul A. Graham, Asst. Atty. Gen., Dept. of Justice, Salem, Or., for defendants.

MEMORANDUM OF OPINION AND ORDER

SCHWARZER, District Judge.

This is an action brought by Southern Pacific Transportation Company ("Southern Pacific") for declaratory and injunctive relief against General Orders Nos. 26-D and 118 issued by defendant Public Utilities Commission of the State of California ("CPUC"). Southern Pacific contends that the orders are preempted by the Federal Railroad Safety Act ("FRSA") and constitute an unreasonable burden on interstate commerce. CPUC has moved for summary judgment.

STATEMENT OF FACTS

In 1948, CPUC adopted General Order No. 26-D. This order prescribes the minimum distances (clearances) railroads must maintain between freight cars and structures located above and beside railroad tracks and between parallel tracks. The part of the order challenged here provides that, with certain exceptions, "the minimum distance between center lines of parallel standard gauge tracks shall be fourteen (14) feet." The order applies to tracks constructed or reconstructed after its effective date.

General Order No. 118 was adopted in 1963. That order requires railroads to maintain a two-foot wide continuous walkway on each side of their tracks. The order provides that "walkways shall provide a reasonable, regular surface with gradual slope not to exceed one inch to eight inches."

The purpose of both rules is to provide railroad employees with a safe working environment. General Order No. 26-D is designed to afford employees the minimum workspace necessary to avoid being crushed between trains moving on parallel tracks. General Order No. 118 is designed to provide employees with safe footing while working beside tracks.

Southern Pacific contends that the General Orders impose extraordinary costs and achieve only minimal safety benefits. Employees of Southern Pacific have submitted declarations stating that the company has experienced severe financial difficulties in recent years and that, as a result, the company lacks adequate maintenance funds. One employee states that the General Orders force Southern Pacific to divert scarce financial resources from important maintenance projects in other states to work in California which will result in little, if any, safety benefit to employees.

In addition, Southern Pacific challenges a specific decision of the CPUC finding that the company's Fresno switching yard has undergone reconstruction and ordering Southern Pacific to bring the yard into compliance with General Order No. 26-D. Because Southern Pacific cannot afford the $4,000,000 it would allegedly need to spend in order to bring the yard into compliance, it has ceased operations on thirteen tracks in the yard. According to Southern Pacific's General Manager for the Southern Region, this shut-down has resulted in delays of one day in some of the traffic which previously went through the yard.

CPUC has introduced substantial evidence that the General Orders provide a safer working environment for railroad employees. CPUC's Assistant Transportation Supervisor has submitted a declaration which explains in detail why the orders provide the minimum space necessary for employees to perform their job functions safely. He describes fatal accidents that probably would have been avoided if tracks had complied with General Order No. 26-D's clearance requirements. And he cites statistics which demonstrate that poor footing near tracks is a major source of accidents. Moreover, CPUC has submitted evidence that tends to contradict Southern Pacific's contentions that its financial situation is precarious and that the Fresno Yard decision causes delays.

In 1970, Congress adopted the FRSA, Pub.L. No. 91-458, 84 Stat. 971 (1970) (codified as amended at 45 U.S.C.A. §§ 421-444 (West 1972 & Supp.1986)). The purpose of the FRSA is "to promote safety in all areas of railroad operations." 45 U.S.C.A. § 421 (West 1972). In order to accomplish that purpose, the act authorizes the Secretary of Transportation "to prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety." Id. § 431. The Secretary of Transportation has delegated that responsibility to the Federal Railroad Administration ("FRA"). 49 C.F.R. § 1.49(m) (1985).

The FRSA declares that railroad safety regulations "shall be nationally uniform to the extent practicable." 45 U.S.C.A. § 434 (West 1972). The act, however, allows state regulation of railroad safety in certain circumstances:

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.

Id.

Pursuant to its delegated authority, the FRA has adopted a set of "Track Safety Standards." 49 C.F.R. §§ 213.1-.241 (1985). These standards set forth requirements for track geometry, structure, and inspections. Id. They also establish two requirements for the roadbed supporting railroad tracks. Roadbeds must have adequate drainage, and vegetation on or near roadbeds must be controlled so that it does not obstruct visibility or interfere with railroad employees performing their duties. Id. § 213.37.

Between 1971 and 1978, the FRA pursued three rule making proceedings relating to safety concerns addressed by General Orders Nos. 26-D and 118. In its initial Notice of Proposed Rule Making (NPRM), the FRA proposed to adopt § 213.39 as part of its track safety standards. The proposed section provided: "If an object or hazardous condition within 10 feet of the center line of track impedes the safe passage of equipment or prevents railroad employees from safely performing their duties, the owner of the track shall remove the object or correct the hazardous condition or give appropriate warning notification." 36 Fed.Reg. 11,974, 11,976 (1971). After receiving comments on the NPRM, the FRA concluded that § 213.39 should not be adopted, "because its language was ... too vague to constitute an effective safety standard." 36 Fed.Reg. 20,336, 20,336 (1971).

In 1976, the FRA published an advance NPRM asking for comments on the question whether the agency should adopt regulations requiring walkways on trestles and bridges. 41 Fed.Reg. 50,302 (1976). In 1977 the FRA decided that it would not adopt such a regulation. 42 Fed.Reg. 22,184 (1977). The agency determined that the benefits of a nationwide requirement of walkways on those structures would be outweighed by the costs of the regulation. Id. at 22,185. The agency stated that "if an employee safety problem does exist because of the lack of walkways in a particular area or on a particular structure, regulation by a state agency that is in a better position to assess local need is the more appropriate response." Id.

Finally, a 1975 advance NPRM announced the FRA's intention to adopt railroad occupational safety and health standards. 40 Fed.Reg. 10,693 (1975). It was contemplated that the standards would include regulations covering "track, roadbed, track appliances, and related devices." Id. After receiving comments, the FRA announced that it would adopt a comprehensive code of occupational safety and health regulations by issuing a series of NPRMs covering discreet subjects. 41 Fed.Reg. 29,153 (1976). The first NPRM in the series proposed regulations dealing with fire prevention, environmental controls, and means of egress to buildings used by railroad employees. Id.

In 1978, the FRA issued a "Policy Statement," which terminated this rule making proceeding and attempted to define "the relationship between the respective jurisdictions of the FRA and" the Occupational Safety and Health Administration of the Department of Labor (OSHA). 43 Fed. Reg. 10,583, 10,584 (1978). The FRA determined that a comprehensive code of occupational safety and health regulations directed specifically at railroads would unnecessarily intrude into areas adequately regulated by OSHA. Id. at 10,585, 10,587. At the same time, the FRA concluded that the safety of "railroad operations," which it defined as "the movement of equipment over the rails," should be "the responsibility of a single agency." The statement therefore set forth areas of railroad operations to which OSHA regulations should not apply. The FRA specifically determined that OSHA regulations on walking and working surfaces should not apply to "walkways beside the tracks in yards or along the right-of-way." Id. at 10,587. The Policy Statement indicated that the "FRA will determine the need for and feasibility of general standards related to such surfaces, keeping in mind the requirement of proper clearances." Id.

DISCUSSION

A. Preemption

The FRSA permits state regulation of railroad safety in two circumstances. First, state regulation is permitted as long as there is no federal rule, regulation, standard, or order covering the same subject matter. 45 U.S.C.A. § 434 (W...