PLEASE NOTE: The law protects the company – NOT the worker. This is a “legal” decision that flies in the face of a recognized hazard. It is also laughable that the FRA would enforce the safety needs for this recognized hazard at a private business that is using its own trackmobile to move the cars in and out of the building. But this is the legal system; NOT a safety management system! PROTECT your people and EVERYONE wins (Workers, Worker’s Familes and the Business).
The Secretary of Labor cited a grain handling business for a willful and serious violation of 29 C.F.R. § 1910.132(d)(1)(i) for failing to ensure employees wore personal protective equipment (“PPE”) while working on top of railcars. After a three-day evidentiary hearing, the Occupational Health and Safety Review Commission’s administrative law judge (“ALJ”) upheld the citation. The Commission denied discretionary review of the ALJ’s decision, and the business now petitions for our review. Concluding the Federal Railroad Administration (“FRA”) preempts the jurisdiction of the Occupational Health and Safety Administration (“OSHA”), we vacate the citation and reverse the ALJ’s order.
BACKGROUND
The business operates a grain handling facility in Adrian, Missouri. It ships grain from this facility via the railroad and fills the railcars through a “railcar loadout” process. As part of the railcar loadout, an employee must access the top of each railcar, which is approximately fifteen feet off the ground. The employee then opens each lid on the railcar roof to allow a spout to transfer grain from storage bins into the railcar through each opening. A Trackmobile pushes the railcars along the track into position under the grain spouts after an employee opens the lids. After the railcars are filled, the Trackmobile pushes them out of the grain-filling station, and an employee then closes and seals the lids.
On December 31, 2020, an OSHA inspector travelled to the facility to investigate an explosion. As part of the investigation, the inspector reviewed a recording that included footage of an employee not wearing fall-protection PPE while working on top of a railcar. The inspector’s subsequent interviews revealed that employees frequently failed to wear fall-protection PPE while working atop railcars, and that, although supervisors were aware of this activity, employees were not disciplined.
Since 2016, West Central had a fall protection system in place for the railcar loadout process. It consisted of a trolley on suspended I-beams that ran overhead and parallel to each of the railroad tracks. An employee would connect to the trolley through a harness and a self-retracting lifeline. At some point prior to December 2020, West Central removed the fall protection system on the east track, but it was still in place on the west track.
Employees did not like to use the fall protection system because the harness was uncomfortable, the system prevented them from reaching all the lids, and occasionally the trolley became sticky and would not glide on the I-beams. Despite these problems with the system, West Central’s safety training for its employees included the following instruction: “If there is railcar fall protection present, you must use it every time.”
While there was no written hazard assessment of the dangers of a fall during railcar loadout, the ALJ found the business acknowledged that working on top of rail cars presented a fall hazard based on the existence of the fall protection system, testimony from the business’s safety director, and the safety training. The ALJ’s Decision and Order upheld the citation of a willful and serious violation and imposed a penalty of $122,878.80.
DISCUSSION
The business asserts that OSHA’s application of § 1910.132(d)(1)(i) to employees working on top of railcars is preempted by the FRA.
The OSHA regulation at issue in this case states that an employer must “[s]elect, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment.” § 1910.132(d)(1)(i). The plain language of this regulation does not address working on top of railcars. This broad and general provision requires looking elsewhere to determine whether it applies to these working conditions.
In 1996, John B. Miles, Jr., then-Director of OSHA’s Directorate of Enforcement Programs, issued an interpretation letter (the “Miles Memorandum”) to the Regional Administrators. John B. Miles, Jr., Enforcement of Fall Protection on Moving Stock, http://www.osha.gov/laws-regs/standardinterpretations/1996-10-18. The Miles Memorandum included an interpretation of when § 1910.132(d) applies to working on top of railcars, which stated the following:
Additionally, it would not be appropriate to use the personal protection equipment standard, 29 CFR 1910.132(d), to cite exposure to fall hazards from the tops of rolling stock, unless employees are working atop stock that is positioned inside of or contiguous to a building or other structure where the installation of fall protection is feasible. In such cases, fall protection systems often can be and, in fact, are used in many facilities in the industry.
The ALJ relied on this interpretative statement to uphold the citation under § 1910.132(d)(1)(i).
Next, we must determine whether the FRA has set standards for working on top of railcars. In 1978, the FRA issued a policy statement identifying the working conditions with respect to which the FRA was presently exercising its authority (“FRA Policy Statement”). If the FRA Policy Statement covers the applicable working conditions, it preempts OSHA’s jurisdiction. Velasquez v. S. Pac. Transp. Co., 734 F.2d 216, 218 (5th Cir. 1984); see Consol. Rail Corp., Nos. 91-3133 & 91-3134, 1993 WL 119665, at *1 (OSHRC Mar. 31, 1993) (the Commission recognizes the preemptive effect of the FRA Policy Statement).
The FRA asserted its authority over working conditions unique to railroad operations. 43 Fed. Reg. at 10,586. This included the protection of employees working around railcars. Id. (“rules pertaining to the protection of employees working between or under rolling equipment, operations within yard limits . . . .”). The FRA also asserted its authority over walking-working surfaces. Included in its assertion of authority over walking-working surfaces was the design of locomotives and other rolling equipment, such as railcars, used on a railroad because “working conditions related to such surfaces are regulated by FRA as major aspects of railroad operations.”
The FRA acknowledged the application of OSHA regulations to walking-working surfaces for areas other than railcars such as in offices, shops, and other fixed workplaces. Id. Through the FRA Policy Statement, the FRA has asserted its authority over employees working around railcars and over the walking-working surfaces on railcars.
The FRA asserted its authority over the environmental area of railcars. By asserting its authority over these working conditions, the FRA has preempted OSHA’s jurisdiction over employees working on top of railcars.
The ALJ incorrectly found no preemption by failing to analyze the relevant working conditions. See U.S. Air, Inc., 689 F.2d at 1193 (preemption occurs when the other federal agency has standards covering the working conditions). Instead, the ALJ found no preemption because the FRA Policy Statement does not mention PPE. As support for its conclusion, the ALJ relied on unrelated Commission cases regarding PPE use in repair shops, which is an environmental area the FRA left mostly to OSHA. The ALJ failed to act in accordance with the law when it found no preemption.
Because the ALJ’s legal conclusion on preemption was not in accordance with the law, we cannot uphold the decision. The FRA preempts OSHA’s jurisdiction over working conditions on top of railcars.
CONCLUSION
The citation for violation of 29 C.F.R. § 1910.132(d)(1)(i) is vacated, and the ALJ’s decision is reversed.
Source: https://cases.justia.com/federal/appellate-courts/ca8/24-3107/24-3107-2025-08-28.pdf?ts=1756395026