National Academies Press: OpenBook

Railroad Legal Issues and Resources (2015)

Chapter: XXXI. Occupational Safety and Health Act

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Page 128
Suggested Citation:"XXXI. Occupational Safety and Health Act." National Academies of Sciences, Engineering, and Medicine. 2015. Railroad Legal Issues and Resources. Washington, DC: The National Academies Press. doi: 10.17226/22093.
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Page 128
Page 129
Suggested Citation:"XXXI. Occupational Safety and Health Act." National Academies of Sciences, Engineering, and Medicine. 2015. Railroad Legal Issues and Resources. Washington, DC: The National Academies Press. doi: 10.17226/22093.
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Page 129

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128 fixed guideway systems, including rail, bus rapid transit, passenger ferries, and high intensity bus lanes.603 F. Asset Management Provisions 691 MAP-21 § 20019, 49 U.S.C. § 5326, is a new section that “requires FTA to define the term ‘state of good repair’ and create objective standards for measuring the condition of capital assets, including equipment, rolling stock, infrastructure, and facilities.”604 XXXI. OCCUPATIONAL SAFETY AND HEALTH ACT 692 A. Introduction 692 FRA has issued a policy statement describing when the FRA, DOT, or OSHA have sole or concurrent jurisdiction over the occupational safety and health of railroad employees. Statutes and Regulations 693 B. Occupational Safety and Health Act and Its Territorial Scope 693 The Occupational Safety and Health Act does not supersede or affect any workmen’s compensation law.605 C. Occupational Safety and Health Standards and 694 Their Applicability The Code of Federal Regulations provides that “[n]one of the standards in this part shall apply to working conditions of employees with respect to which Federal agencies other than the Department of Labor…exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.”606 603 FTA MAP-21 Summary, supra note 597, at 3; see 49 U.S.C. §§ 5337(a)(1)(A)-(E) (2014). 604 Anita Estell & Christian Washington, Special Transportation Report: The Moving Ahead for Progress in the 21st Century Act (MAP-21), at 50 (discussing MAP-21’s amendment of 49 U.S.C. § 5301), available at http://www.polsinelli.com/~/media/Articles%20by%20Attorneys/Estell_Washington_July2012 (last accessed Mar. 31, 2015). See MAP-21 § 20021; 49 U.S.C. § 5329(c)(2014), at 45; FTA MAP-21 Summary, supra note 597, at 3. 605 29 U.S.C. § 653(a) (2014). 606 29 C.F.R. § 1910.5(b) (2014).

129 D. FRA Policy Statement on Occupational Safety and Health 694 Standards for Railroads FRA has stated that it will concentrate its efforts on providing regulations that address railroad safety in areas directly related to railroad operations and on “addressing hazardous working conditions in those traditional areas of railroad operations in which [the FRA has] special competence.”607 E. Facilitating OSHA and FRA Coordination Regarding the 700 Federal Railroad Safety Act and Employee Protection A Memorandum of Agreement (MOA) between FRA, DOT, and OSHA states that “[w]hen an individual notifies FRA of alleged discrimination by a railroad carrier for engaging in conduct protected by 49 U.S.C. 20109, FRA will inform the individual that a personal remedy for discrimination is available through OSHA.”608 Cases 702 F. Whether OSHA Regulations Are Preempted in a Specific Case 702 In Callahan v. National R.R. Passenger Corp.,609 involving a worker’s negligence action against Amtrak after sustaining permanent bodily injury when he fell from a ladder, the court could find no authority to support Amtrak’s argument that FRA had preempted the OSHA regulations that applied to catenary poles and ladders. 607 On Mar. 14, 1978, FRA withdrew its notice of a proposed rulemaking on occupational and health standards for railroads. See United States Department of Transportation, Federal Railroad Administration, 49 C.F.R. pt. 221, Railroad Occupational Safety and Health Standards; Termination of Rulemaking Proceeding and Issuance of Policy Statement, 43 Fed. Reg. 10583 and 10585 (Mar. 14, 1978), available at http://www.orosha.org/pdf/mous/F-1.pdf (last accessed Mar. 31, 2015). 608 Memorandum of Agreement Between the Federal Railroad Administration, U.S. Department of Transportation, and the Occupational Safety and Health Administration, U.S. Department Of Labor (July 16, 2012), available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=MOU&p_id=1125 (last accessed Mar. 31, 2015). 609 2009 PA Super 132, at *1, 979 A.2d 866, 872 (Pa. Super. Ct. 2009) (quoting 29 U.S.C. § 653(b)(1)), appeal denied, 2010 Pa. LEXIS 2546 (Pa., Nov. 9, 2010).

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TRB’s National Cooperative Rail Research Program (NCRRP) Legal Research Digest 2: Railroad Legal Issues and Resources presents legal issues of importance that attorneys may encounter when representing both freight and passenger railroad owners, and operators involved in railroad-related transactions. Issues explored in the report range from abandonment and discontinuance to constitutional law, construction, contracts, interaction with regulatory agencies, safety, retirement, and numerous other subjects.

The electronic version of the digest includes more than 700 pages of case law presenting detailed summaries of statutes, regulations, cases, and relevant articles as a fundamental resource for use in understanding the background and broad ramifications of railroad-related law reflected in each category. To access the case law, click the Roman numeral headings, which are linked to the legal topics. A search for the legal topic will also result in finding it. The printed digest includes an annotated index of the case law and a bound-in CD-ROM with the case law reference materials.

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