Railroad Legal Issues and Resources (2015)

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98 2. Project Eligibility 559 To receive funding for railway–highway crossings, a state must survey all highways to determine the railroad crossings that require attention; moreover, a railroad must compensate the state transportation department for 10 percent of the net benefit of a railroad project.445 Statutes 560 F. The American Recovery and Reinvestment Act 560 1. Stimulus Funds for Passenger Rail Projects 560 ARRA, enacted in 2009, provides short-term funding for sectors across the economy, including $8 billion to develop high-speed intercity passenger rail service in the United States. 2. Project Eligibility 561 ARRA funding may be made available to current recipients of FTA’s grant programs,446 such as the Urbanized Area Formula Program (49 U.S.C. § 5307), Formula Grants for other than the Urbanized Areas Program (49 U.S.C. § 5311), the Fixed Guideway Modernization Formula Program (49 U.S.C. § 5309), and Capital Investment Grants (49 U.S.C. § 5309). XXIII. FEDERAL RAILROAD SAFETY ACT 562 A. Introduction 562 In 1970, Congress enacted the FRSA. Section B discusses statutory elements. Sections C through E summarize cases applying the FRSA. Section F discusses an article on the 2007 amendment to the FRSA clarifying the statute’s preemption of state laws. Statute 562 B. Federal Railroad Safety Act’s Regulation of Every Area of 562 Railroad Safety The FSRA authorizes the Secretary of Transportation to prescribe regulations for every area of railroad safety447 and for the “investigative and surveillance activities necessary to enforce the safety regulations.”448 445 Id.; 23 U.S.C. § 130(d) (2014). 446 See Federal Transit Administration, available at http://www.fta.dot.gov/about/12835_9325.html#Eligibility (last accessed Mar. 31, 2015). 447 49 U.S.C. § 20103(a) (2014). 448 49 U.S.C. § 20105(a) (2014).

99 1. Amendments to 49 U.S.C. §§ 20109(a)(1)–(7) of the FRSA by the 563 9/11 Commission Act of 2007 Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act of 2007) amended 49 U.S.C. §§ 20109(a)(1)–(7) of the FRSA by increasing the type of protected activities in which a railroad employee may engage.449 2. Amendments to 49 U.S.C. §§ 20109(b)(1)–(7) of the FRSA by the 564 9/11 Commission Act of 2007 Section 1521 of the 9/11 Commission Act of 2007 amended 49 U.S.C. §§ 20109(b)(1)– (7) on whistleblower protection.450 3. Transfer of Enforcement of Whistleblower Protection 565 from the National Railroad Adjustment Board to the Occupational Safety and Health Administration Section 1521 of the 9/11 Commission Act of 2007 amended the FRSA by transferring enforcement of whistleblower complaints from the National Railroad Adjustment Board to the Occupational Safety and Health Administration (OSHA).451 4. Amendments to the FRSA by Section 419 of the Railroad 566 Safety Improvement Act of 2008 Section 419 of the Railroad Safety Improvement Act of 2008 amended the FRSA by prohibiting a railroad carrier from “disciplin[ing], or threaten[ing] discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician.”452 449 49 U.S.C. §§ 20109(a)(1)-(7) (2014) (as amended by the 9/11 Commission Act of 2007, §§ 1521(a)(1)–(7)). 450 49 U.S.C. §§ 20109(b)(1)(A)-(C) (2014) (as amended by 9/11 Commission Act of 2007, §§ 1521(b)(1)(A)–(C)). 451 49 U.S.C. §§ 20109(c) and (d) (2014) (as amended by the 9/11 Commission of 2007 Act, §§ 1521(c) (Enforcement Action) and (c)(1) (“by filing a complaint with the Secretary of Labor”) and 1521(d) (Remedies)). OSHA is part of the Department of Labor and is tasked with assuring safety and healthful working conditions. 452 49 U.S.C. § 20109(c)(2) (2014).

100 5. Increase in OSHA’s FRSA Whistleblower Complaints 567 Since 2007 when OSHA acquired jurisdiction of FRSA complaints, OSHA’s number of FRSA-based complaints has increased from 1 in fiscal year 2007 to 384 and 353 complaints, respectively, in fiscal years 2012 and 2013.453 Cases 567 C. Whether an Exception Under State Law for a Railroad’s 567 Reckless Conduct Survives Preemption In Boyd v. National R.R. Passenger Corp.,454 although the issue was not directly before the Supreme Judicial Court of Massachusetts, the Massachusetts Court of Appeals had held that the FRSA preempted the plaintiff’s state law claims because the conditions at the crossing did not qualify as a local hazard under the savings clause; however, the Supreme Judicial Court concluded that there was a triable issue of fact on whether the defendants were reckless. D. Under the FRSA Only Federal Regulations and Orders of the 570 Secretary of Transportation Establish a Federal Standard of Care that Preempts State Law In Sanchez v. BNSF Railway Company,455 a federal court in New Mexico explained that FRSA preemption does not apply when a railroad violates a federal safety standard of care; however, the court held that the American Railway Engineering and Maintenance of Way Association standards did not establish a federal standard of care because they were not issued by the Secretary and were merely nonbinding recommendations. E. Exclusive Federal Whistleblower Protection for 571 Railroad Employees In Rayner v. Smirl,456 the Fourth Circuit stated that 45 U.S.C. § 441 “provides a broad federal remedy for railroad ‘whistleblowers’” but “refuse[d] to narrow this federal remedial provision to allow appellant to pursue a state action in tort.”457 453 United States Department of Labor, Occupational Safety and Health Administration, Whistleblower Investigation Data FY2005–FY2013, available at http://www.whistleblowers.gov/whistleblower/wb_data_FY05-13.pdf (last accessed Mar. 31, 2015). 454 446 Mass. 540, 549, 845 N.E.2d 356, 365 (Sup. J. Ct. Mass. 2006). 455 2013 U.S. Dist. LEXIS 147656, at *1, 13, 14 (D. N.M. 2013). 456 Rayner v. Smirl, 873 F.2d 60 (4th Cir. 1989), cert. denied, 493 U.S. 876, 110 S. Ct. 213, 107 L. Ed. 2d 166 (1989), superseded by statute as stated in Gonero v. Union Pac. R.R. Co., 2009 U.S. Dist. LEXIS 100962, at *1 (E.D. Cal. 2009). 457 Id. at 64.