                   RECOMMENDED FOR FULL-TEXT PUBLICATION
                        Pursuant to Sixth Circuit Rule 206
                              File Name: 09a0104p.06

             UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


                                             X
                                              -
               No. 07-1736

                        Plaintiff-Appellant, --
 STANLEY R. NICKELS,

                                              -
                                                       Nos. 07-1736/2437

                                              ,
                                               >
                                              -
          v.

                                              -
                       Defendant-Appellee. -
 GRAND TRUNK WESTERN RAILROAD, INC.,
                                              -
                                              -
                                              -
                                              -
               No. 07-2437

                        Plaintiff-Appellant, -
 DONALD C. COOPER,
                                              -
                                              -
                                              -
                                              -
          v.
                                              -
                                              -
 CSX TRANSPORTATION, INC.,
                       Defendant-Appellee. N
                   Appeal from the United States District Court
                  for the Eastern District of Michigan at Detroit.
                  Nos. 06-11846; 05-73392—Robert H. Cleland,
                         Paul D. Borman, District Judges.
                              Argued: July 31, 2008
                       Decided and Filed: March 18, 2009
          Before: SILER, BATCHELDER, and ROGERS, Circuit Judges.

                               _________________

                                   COUNSEL
ARGUED:           Robert B. Thompson, HARRINGTON, THOMPSON, ACKER &
HARRINGTON, Chicago, Illinois, Kirk E. Karamanian, O’BRYAN, BAUN, COHEN,
KUEBLER & KARAMANIAN, Birmingham, Michigan, for Appellants. Andrew E. Tauber,
MAYER BROWN, Washington, D.C., for Appellees. ON BRIEF: Robert B. Thompson,
Laurence C. Acker, HARRINGTON, THOMPSON, ACKER & HARRINGTON, Chicago,
Illinois, Kirk E. Karamanian, O’BRYAN, BAUN, COHEN, KUEBLER & KARAMANIAN,
Birmingham, Michigan, for Appellants. Andrew E. Tauber, MAYER BROWN,
Washington, D.C., Evan Mark Tager, MAYER BROWN, Chicago, Illinois, Richard A.
Dietz, Michael J. Liddane, FOSTER, MEADOWS & BALLARD, Detroit, Michigan, James



                                         1
Nos. 07-1736/2437         Nickels, et al. v. Grand Trunk Western R.R., et al.            Page 2


R. Carnes, ANSPACH MEEKS ELLENBERGER, Toledo, Ohio, for Appellees. James L.
O’Connell, LINDHORST & DREIDAME CO., Cincinnati, Ohio, for Amicus Curiae.
     BATCHELDER, J., delivered the opinion of the court, in which SILER, J., joined.
ROGERS, J. (pp. 11-15), delivered a separate dissenting opinion.
                                     _________________

                                          OPINION
                                     _________________

        ALICE M. BATCHELDER, Circuit Judge. In this consolidated action, Stanley
Nickels and Donald Cooper appeal entries of summary judgment on their Federal
Employers’ Liability Act (“FELA”) claims. These former railway employees allege injuries
caused by years of walking on oversized track ballast. The district courts below held that
a Federal Railway Safety Act (“FRSA”) regulation covers the issue of ballast size,
precluding plaintiffs’ negligence actions. We affirm.

                                               I.

        Nickels and Cooper both claim that their former employers failed to provide a safe
working environment by using large mainline ballast — instead of smaller yard ballast —
underneath and adjacent to tracks receiving heavy foot traffic. Track ballast is the stone or
other material placed underneath and around railroad tracks to provide the structural support,
drainage, and erosion protection necessary for safe rail travel. The two main sizes of track
ballast are mainline ballast, which can be up to 2 inches in diameter, and yard ballast, which
is typically 1 inch in diameter or smaller. The American Railway Engineering and
                                                 1
Maintenance of Way Association (“AREMA”) recommends that railroads use yard ballast
in areas where there is heavy foot traffic because walking on mainline ballast is more
strenuous and provides for uneven footing.

        Nickels began working for Grand Trunk in 1976. His job required him to walk
on track ballast so that he could, among other things, conduct switching operations



        1
         AREMA is an engineering support association whose mission is the development and
advancement of both technical and practical knowledge and recommended practices pertaining to the
design, construction, and maintenance of railway infrastructure. AREMA standards are merely
recommendations and are non-binding.
Nos. 07-1736/2437           Nickels, et al. v. Grand Trunk Western R.R., et al.                 Page 3


(move railcars from one track to another). Although most of this walking was done on
yard ballast, a stint from 2002 to 2004 at Grand Trunk’s Lansing, Michigan railyard
required Nickels to walk on mainline ballast. In early 2004 Nickels began experiencing
pain and discomfort in his feet, especially his big toes. Ultimately, Nickels had to have
surgery on both feet — his left foot in January 2005, and his right foot in April 2005.
Nickels unsuccessfully attempted to return to work and has been on permanent
restriction since October 2005.

         Cooper began working for CSX in 1967. His duties required him to walk on
mainline ballast. In 2000, Cooper sought treatment for stiffness and pain in his right leg,
from his hip down to his toes. By February 2003, Cooper was no longer able to perform
his job responsibilities. He eventually was diagnosed with avascular necrosis, “a cellular
death of bone components due to interruption of the blood supply . . . resulting in bone
destruction, pain, and loss of joint function.”

         Nickels and Cooper separately sued their former employers under the FELA,
45 U.S.C. § 51, et seq. The railroads moved for summary judgment, arguing that the
FRSA, 49 U.S.C. § 20101, et seq., precluded the plaintiffs’ FELA claims. The district
courts granted the motions, concluding that allowing the plaintiffs to advance their
FELA claims would undermine the FRSA’s express intent to achieve national uniformity
in railroad safety regulations.2           Nickels and Cooper timely appealed, and we
consolidated their actions to consider the preclusion issue common to both suits.

                                                  II.

         We review de novo a district court’s grant of summary judgment, using the same
standard applied by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.
1999) (en banc). Summary judgment is proper if “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to


         2
           In Cooper’s case, the district court alternatively held that Cooper’s claim was barred by the
statute of limitations because he filed suit more than three years after knowing the likely cause of his
injury. Because Cooper’s claim is precluded by the FRSA, we do not reach that issue.
Nos. 07-1736/2437        Nickels, et al. v. Grand Trunk Western R.R., et al.          Page 4


a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We must review all the evidence,
facts, and inferences in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Whether a federal law
preempts a state law or precludes another federal law is a question of law which we
review de novo. See Nye v. CSX Transp., Inc., 437 F.3d 556, 560 (6th Cir. 2006) (citing
Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 985 (6th Cir. 2004) (overruled on other
grounds)).

                                            III.

        This case requires us to examine the interplay of two federal statutes, both of
which were designed to promote railway safety. The FELA makes a railroad liable to
its employees injured “by reason of any defect or insufficiency, due to its negligence, in
its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other
equipment.” 45 U.S.C. § 51. The statute provides a “cause of action sounding in
negligence[.] . . . Absent express language to the contrary, the elements of a FELA claim
are determined by reference to the common law.” Norfolk S. Ry. Co. v. Sorrell, 549 U.S.
158, 165-66 (2007).

        The FRSA’s purpose is “to promote safety in every area of railroad operations
and reduce railroad-related accidents and incidents.” Norfolk S. Ry. Co. v. Shanklin, 529
U.S. 344, 347 (2000) (quoting 49 U.S.C. § 20101). The FRSA authorizes the Secretary
of Transportation (“Secretary”) to “prescribe regulations and issue orders for every area
of railroad safety.” Id. (quoting 49 U.S.C. § 20103(a)). Under the FRSA’s express
preemption provision,“[l]aws, regulations, and orders related to railroad safety . . . shall
be nationally uniform to the extent practicable.” 49 U.S.C. § 20106(a)(1). “A State may
adopt or continue in force a law, regulation, or order related to railroad safety . . . until
the Secretary of Transportation . . . prescribes a regulation or issues an order covering
the subject matter of the State requirement.” 49 U.S.C. § 20106(a)(2). A state-law
negligence action is “covered” and therefore preempted if a FRSA regulation
“substantially subsume[s]” the subject matter of the suit.          CSX Transp., Inc. v.
Nos. 07-1736/2437           Nickels, et al. v. Grand Trunk Western R.R., et al.                   Page 5


Easterwood, 507 U.S. 658, 664 (1993). This provision explicitly preempts only State
laws, regulations, and orders; it does not mention other federal safety standards.

         We must consider: (1) whether a FELA claim is precluded if the same claim
would be preempted by the FRSA if brought as a state-law negligence action; and (2)
if so, whether the subject of these plaintiffs’ claims has been covered by a FRSA
regulation. We answer both questions in the affirmative.

                                                   A.

         Two of our sister circuits have held that the uniformity demanded by the FRSA
“can be achieved only if [federal rail safety regulations] are applied similarly to a FELA
plaintiff’s negligence claim and a non-railroad-employee plaintiff’s state law negligence
claim.”3 Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th Cir. 2001); see also
Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 776 (7th Cir. 2000).

         Dissimilar treatment of the claims would have the untenable result of
         making the railroad safety regulations established under the FRSA
         virtually meaningless: “The railroad could at one time be in compliance
         with federal railroad safety standards with respect to certain classes of
         plaintiffs yet be found negligent under the FELA with respect to other
         classes of plaintiffs for the very same conduct.”
Id. (quoting Waymire v. Norfolk & W. Ry. Co., 65 F. Supp. 2d 951, 955 (S.D. Ind. 1999),
aff’d, 218 F.3d 773 (7th Cir.2000)).

         We agree with this analysis. Although the courts in Lane and Waymire addressed
FELA claims of unsafe train speed in light of FRSA speed-limit regulations, the FRSA’s
concern for uniformity leads us to reach the same conclusion regarding ballast
regulations. And while railroads may face a lesser likelihood of state-law claims

         3
           Other courts also have reached this conclusion. See, e.g., Dickerson v. Staten Trucking, Inc.,
428 F. Supp. 2d 909, 913-14 (E.D. Ark. 2006); Major v. CSX Transp., Inc., 278 F. Supp. 2d 597, 608-10
(D. Md. 2003); In re Amtrak “Sunset Ltd.” Train Crash, 188 F. Supp. 2d 1341, 1349 (S.D. Ala. 2000);
Rice v. Cincinnati, New Orleans & Pac. Ry. Co., 955 F. Supp. 739, 740-41 (E.D. Ky. 1997); Thirkill v. J.B.
Hunt Transp., Inc., 950 F. Supp. 1105, 1107 (N.D. Ala. 1996); Norris v. C. of Ga. R.R. Co., 635 S.E.2d
179, 182-83 (Ga. Ct. App. 2006); CSX Transp., Inc. v. Miller, 858 A.2d 1025, 1047-49 (Md. Ct. Spec.
App. 2004); Elston v. Union Pac. R.R. Co., 74 P.3d 478, 486-88 (Colo. Ct. App. 2003); Key v. Norfolk S.
Ry. Co., 491 S.E.2d 511, 513-14 (Ga. Ct. App. 1997). But see Grimes v. Norfolk S. Ry. Co., 116 F. Supp.
2d 995, 1002-03 (N.D. Ind. 2000); Earwood v. Norfolk S. Ry. Co., 845 F. Supp. 880, 889-91 (N.D. Ga.
1993).
Nos. 07-1736/2437        Nickels, et al. v. Grand Trunk Western R.R., et al.          Page 6


alleging negligent ballast composition, any exposure to conflicting standards undermines
uniformity. See Norris v. C. of Ga. R.R. Co., 635 S.E.2d 179, 183 (Ga. Ct. App. 2006).
The plaintiffs’ claims are precluded by the FRSA if they would have been preempted if
brought by a non-employee under state law.

                                            B.

        Under the FRSA’s preemption provision, a plaintiff can bring an action under
state law unless the Secretary has prescribed a regulation or issued an order “covering
the subject matter of the State requirement.” 49 U.S.C. § 20106. The Secretary has
promulgated a regulation on ballast:

        Unless it is otherwise structurally supported, all track shall be supported
        by material which will —
        (a) Transmit and distribute the load of the track and railroad rolling
        equipment to the subgrade;
        (b) Restrain the track laterally, longitudinally, and vertically under
        dynamic loads imposed by railroad rolling equipment and thermal stress
        exerted by the rails;
        (c) Provide adequate drainage for the track; and
        (d) Maintain proper track crosslevel, surface, and alinement.
49 C.F.R. § 213.103. The question is whether this regulation covers the subject matter
of the plaintiffs’ claims.

        The gist of these claims is that the railroads used large mainline ballast in areas
where smaller yard ballast would have sufficed — such as passing sidings, switch leads,
and interior yard tracks. The regulation, however, makes no distinction between
mainline and secondary track; it provides that “all track shall be supported by material”
able to transmit and distribute track and equipment loads, restrain the track under
dynamic loads and thermal stress, provide adequate drainage, and maintain proper track
crosslevel, surface, and alinement. Id. (emphasis added). Rather than prescribing ballast
sizes for certain types or classes of track, the regulation leaves the matter to the
Nos. 07-1736/2437       Nickels, et al. v. Grand Trunk Western R.R., et al.          Page 7


railroads’ discretion so long as the ballast performs the enumerated support functions.
In this way, the regulation substantially subsumes the issue of ballast size.

       In Easterwood, the Supreme Court held that a federal regulation limiting train
speed to 60 miles per hour for a particular class of grade crossings preempted a state tort
claim that a train operating under the speed limit was nonetheless going unreasonably
fast. 507 U.S. at 673-75. The Court explained:

               On their face, the provisions of § 213.9(a) address only the
       maximum speeds at which trains are permitted to travel given the nature
       of the track on which they operate. Nevertheless, related safety
       regulations adopted by the Secretary reveal that the limits were adopted
       only after the hazards posed by track conditions were taken into account.
       Understood in the context of the overall structure of the regulations, the
       speed limits must be read as not only establishing a ceiling, but also
       precluding additional state regulation of the sort that respondent seeks to
       impose on petitioner.
Id. at 674. The Court noted that because automobile driver conduct is “the major
variable in grade crossing accidents,” the Secretary of Transportation relied heavily on
the type of warning signals and other safety devices present at a class of grade crossings
to determine the appropriate speed limit for that class. Id. at 674-75. “Read against this
background,” the Court concluded, “§ 213.9(a) should be understood as covering the
subject matter of train speed with respect to track conditions, including the conditions
posed by grade crossings.” Id. at 675 (emphasis added). In other words, the Secretary
had already determined what was a reasonable speed for that class of grade crossings.

       Likewise, in § 213.103 the Secretary has directed railroads to install ballast
sufficient to perform key support functions under the conditions applicable to the track.
Although these conditions necessarily are track-specific and are not classified as were
the grade crossings in Easterwood, they effectively narrow the universe of material the
railroad may use in a given situation. The regulation thus determines what is a
reasonable ballast composition and size for a particular track.

       The plaintiffs argue that their theory of recovery “is obviously consistent and
compatible with [the railroads’] obligations under the FRSA ballast regulations.” This
Nos. 07-1736/2437            Nickels, et al. v. Grand Trunk Western R.R., et al.                    Page 8


is so, they contend, because the railroads could have used smaller ballast in areas of
heavy foot traffic without violating their duty to provide a stable track. Even if this
proposition is true, the fact that track stability and safe footing are not mutually
exclusive does not mean that § 213.103 has not covered the subject of ballast size.
Preclusion and preemption under the FRSA are not limited to situations where the
federal or state standard is incompatible with a regulation. If they were, there would be
no need for the second savings clause of 49 U.S.C. § 20106(a)(2), under which “a State
may . . . continue in force an additional or more stringent law . . . related to railroad
safety . . . when the law . . . is not incompatible with a law, regulation, or order of the
United States Government . . . .” (Emphasis added).

       The plaintiffs nonetheless argue that Congress has amended the FRSA’s
preemption provision to require “incompatibility” as a “second test” for preemption. In
2007 Congress added a new subsection to 49 U.S.C. § 20106, which provides in part:

       Nothing in this section shall be construed to preempt an action under
       State law seeking damages for personal injury, death, or property damage
       alleging that a party . . . has failed to comply with a State law, regulation,
       or order that is not incompatible with subsection (a)(2).
49 U.S.C. § 20106(b)(1).             This subsection does not impose an incompatibility
requirement for preemption or preclusion. In referencing § 20106(a)(2), it clarifies that
a state may adopt or continue in force “a law, regulation, or order related to railroad
safety” — including a state cause of action for “damages for personal injury, death, or
property damage” — so long as the requirements of § 20106(a)(2) are satisfied.4 Under

       4
           That subsection provides in full:
       (2) A State may adopt or continue in force a law, regulation, or order related to railroad
       safety or security until the Secretary of Transportation (with respect to railroad safety
       matters), or the Secretary of Homeland Security (with respect to railroad security
       matters), prescribes a regulation or issues an order covering the subject matter of the
       State requirement. A State may adopt or continue in force an additional or more
       stringent law, regulation, or order related to railroad safety or security when the law,
       regulation, or order —
       (A) is necessary to eliminate or reduce an essentially local safety or security hazard;
       (B) is not incompatible with a law, regulation, or order of the United States
       Government; and
       (C) does not unreasonably burden interstate commerce.
Nos. 07-1736/2437           Nickels, et al. v. Grand Trunk Western R.R., et al.                  Page 9


§ 20106(a)(2), once the Secretary has issued a regulation covering the subject matter of
a state law, regulation, or order related to railroad safety, that state law, regulation, or
order is preempted unless it is necessary to address an essentially local safety hazard, is
not incompatible with the federal regulation, and does not unreasonably burden interstate
commerce. In other words, under both §§ 20106(a)(2) and (b)(1), incompatibility is a
prerequisite — not for preemption or preclusion, but for application of the savings
clause.

          The plaintiffs note that 49 C.F.R. § 213.103 does not address “what constitutes
a reasonably safe walkway for railroad employees performing their duties adjacent to the
track.”5 This suggests that the plaintiffs allege negligence in the railroads’ use of
oversized ballast in areas completely separate from those where track stability and
support are concerned. Such an allegation, however, does not appear in either of their
complaints. Nickels alleges that “railroad ‘ballast’ was used by the defendant to support
the railroad track structures owned, maintained and used by the defendant in areas
where the plaintiff was required to perform his assigned duties.” (emphasis added). In
his complaint, Cooper simply alleges that “Defendant did provide Plaintiff with an
unsafe place to work by requiring ambulation on unsuitable ballast and driving trucks
there over along with other uneven conditions, resulting in injury.” But in his response
to CSX Transportation’s motion for summary judgment, Cooper admits that “[t]he
purpose of ballast is to provide support and adequate drainage to the track structure,” and
suggests that smaller ballast would have been appropriate “along the main tracks, ladder
tracks, and switching leads,” “as an overlay or along a berm or shoulder running parallel
to mainline tracks,” and “as fill in between tracks as well as on the outside of tracks
where employees are expected to work.” Id. at 155. Even to the extent that the plaintiffs
argue oversized ballast was used “along,” “adjacent to,” or “parallel to” the track, they



                  49 U.S.C. § 20106(a)(2).
          5
           See also Norfolk S. Ry. Co. v. Box, ___ F.3d ___, No. 08-1116, 2009 WL 322151, at *3 (7th Cir.
2009) (“[T]he safety of workers on walkways . . . is distinct from questions about stability and drainage
of tracks.”); Grimes v. Norfolk S. Ry. Co., 116 F. Supp. 2d 995, 1002-03 (N.D. Ind. 2000) (§ 213.103 does
not address employee walkways); Earwood v. Norfolk S. Ry. Co., 845 F. Supp. 880, 891 (N.D. Ga. 1993)
(same); CSX Transp., Inc. v. Miller, 858 A.2d 1025, 1050-52 (Md. Ct. Spec. App. 2004) (same).
Nos. 07-1736/2437      Nickels, et al. v. Grand Trunk Western R.R., et al.   Page 10


do not contend that the ballast in those areas was not being used for stability under
§ 213.103.

                                          IV.

       Because 49 C.F.R. § 213.103 covers the issue of ballast size and precludes the
plaintiffs’ FELA claims, we AFFIRM the grants of summary judgment to the railroads.
Nos. 07-1736/2437       Nickels, et al. v. Grand Trunk Western R.R., et al.      Page 11


                                  _________________

                                      DISSENT
                                  _________________

       ROGERS, Circuit Judge, dissenting. The plaintiffs’ FELA claims are not
categorically precluded by the FRSA in this case. Like the majority, I agree with the
well-reasoned holdings from other jurisdictions that a railway-safety claim that would
be preempted by the FRSA if brought by a nonemployee under state tort law, would
necessarily be precluded by the FRSA if brought by a railroad employee under the
FELA. See Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443-44 (5th Cir. 2001); Waymire
v. Norfolk & W. Ry. Co., 218 F.3d 773, 775-76 (7th Cir. 2000). However, under the
Supreme Court’s FRSA federal preemption analysis, the FRSA regulations that require
adequate physical support for rails do not sufficiently imply that railroads may use any
grade of sufficiently supportive ballast, no matter the risk to employees who must walk
on the ballast. I therefore respectfully dissent.

       The Supreme Court’s analysis in CSX Transportation, Inc. v. Easterwood, 507
U.S. 658 (1993), the seminal FRSA preemption case, strongly suggests that the FRSA
regulation in this case does not preclude an FELA action. The regulation, while putting
requirements on railroads regarding adequate physical support for trains, in no way
implies that such physical support may be obtained without regard to harms to workers
from the roughness of the walking surface of the ballast. This is in direct contrast with
the situation in Easterwood, where the Supreme Court relied on just such an implication.

       Nothing in 49 C.F.R. § 213.103 or any related regulations addresses the issue of
trackside walkways and ballast size. The regulations generally require adequate support
for the trains, and advert in no way to the nature of a walking surface. Section 213.103
provides as follows:

              Unless it is otherwise structurally supported, all track shall be
       supported by material which will –
              (a) Transmit and distribute the load of the track and
              railroad rolling equipment to the subgrade;
Nos. 07-1736/2437           Nickels, et al. v. Grand Trunk Western R.R., et al.                Page 12


         (b) Restrain the track laterally, longitudinally, and vertically under
         dynamic loads imposed by railroad rolling equipment and thermal stress
         exerted by the rails;
         (c) Provide adequate drainage for the track; and
         (d) Maintain proper track crosslevel, surface, and alinement.

Sections 213.33 and 213.37 then address roadbed drainage and trackside vegetation.
Further regulations set forth highly technical requirements for track geometry. See
§§ 213.57 (curves; elevations and speed limitations), 213.63 (track surface), 213.55
(alinement). All of these provisions are primarily concerned with providing a stable
track and roadbed.1 The provisions are essentially silent with respect to conditions of
the walkways directly adjacent to the track.2

         Plaintiffs point to nothing in the regulation implicitly permitting the railroad to
use whatever size ballast it wants as long as there is adequate support. This is in direct
contrast with what the Supreme Court relied upon in Easterwood. In that case the
Supreme Court held that a state tort action for wrongful death, to the extent that it was
based on a train’s traveling at excessive speed, was preempted by FRSA train-speed
regulations. Easterwood, 507 U.S. at 676. The regulations relied upon by the railroad
limited the train’s speed to 60 m.p.h. for the class-four crossing at which the collision
with the decedent’s truck took place. Id. at 673. The Supreme Court did not simply say
that because the defendant’s train was going under the speed limit, and because the claim
was for excessive speed, the claim was preempted. Instead, the Court was at pains to
infer that the speed limit was not only a prohibition on going over 60 m.p.h., but also a
permission to go up to 60 m.p.h. “Understood in the context of the overall structure of
the regulations, the speed limits must be read as not only establishing a ceiling, but also


         1
           This is not to suggest that § 213.103 is not concerned with employee safety. The FRA adopts
all regulations with the objective of “protecting persons along the right-of-way and railroad employees”
in mind. 43 Fed. Reg. 10,583, 10,585 (Mar. 14, 1978); see also Lane, 241 F.3d at 444 (“Railroad
operations cannot be conducted without railroad employees; therefore, it seems obvious that railroad
employee safety is one of the ‘area[s] of railroad operations’ addressed by the statute and regulations.”
(quoting 49 U.S.C. § 20101)). By preventing train derailments, the FRA is making for much safer
employee conditions.
         2
          The only provision that hints at concern with walkways is § 213.37(c), which requires that
vegetation on or immediately adjacent to the roadbed be controlled so that it does not “[i]nterfere with
railroad employees performing normal trackside duties.”
Nos. 07-1736/2437         Nickels, et al. v. Grand Trunk Western R.R., et al.    Page 13


precluding additional state regulation of the sort that respondent seeks to impose on
petitioner.” Id. at 674. The Court came to this conclusion by the following reasoning:

               Because the conduct of the automobile driver is the major
       variable in grade crossing accidents, and because trains offer far fewer
       opportunities for regulatory control, the safety regulations established by
       the Secretary concentrate on providing clear and accurate warnings of the
       approach of oncoming trains to drivers. Accordingly, the Secretary’s
       regulations focus on providing appropriate warnings given variations in
       train speed. [The Supreme Court here provided several examples in
       support.]
               Read against this background, [the FRSA speed limit regulation]
       should be understood as covering the subject matter of train speed with
       respect to track conditions, including the conditions posed by grade
       crossings.

Id. In other words, the focus in the regulations on grade crossing warnings implied that
trains could freely proceed at a speed up to the regulatory limit. Imposing a lower limit
would interfere with that regulatory balance.

       In contrast, the regulation here cannot be viewed as giving defendants permission
to comply in any manner they desire. No interrelation between physical support for
trains and the surface of walkways has been identified in the regulatory scheme in this
case. Whereas in Easterwood the Court found in effect that the regulatory scheme
demanded that safety from crossway collisions come primarily from signals rather than
slow speed, there is no basis for us to read that adequate physical support for trains and
safe walkways for workers are interests that have been counterbalanced to permit the use
of any grade of surface ballast on walkways.

       This case then is no different from one in which a railroad worker brings an
FELA suit for being injured by debris when ballast is carelessly unloaded into place, or
an FELA suit for injury from worker contact with a carcinogenic herbicide used to keep
plants from growing on ballast. Nothing in the ballast-support regulations contemplates
that there can categorically be no negligence with respect to a railroad’s construction or
maintenance of ballast.
Nos. 07-1736/2437            Nickels, et al. v. Grand Trunk Western R.R., et al.                   Page 14


         A number of courts have accordingly held that FRSA regulations do not preclude
FELA suits based on ballast walkways. See Wilcox v. CSX Transp., Inc., No. 1:05-CV-
107, 2007 WL 1576708 (N.D. Ind. May 30, 2007); Grimes v. Norfolk S. Ry. Co., 116 F.
Supp.2d 995 (N.D. Ind. 2000); Elston v. Union Pac. R.R. Co., 74 P.3d 478 (Colo. Ct.
App. 2003);3 see also S. Pac. Transp. Co. v. Pub. Utils. Comm’n, 647 F. Supp. 1220
(N.D. Cal. 1986), aff’d per curiam, 820 F.2d 1111 (9th Cir. 1987).

         This of course is not to say that a jury may require an action that violates the
FRSA regulation. If, for instance, a successful FELA claim effectively created “a
walkway requirement or other safety regulation that hindered or prevented a railroad
from complying simultaneously with an FRA regulation designed to enhance safety in
a different area,” Missouri Pacific Railroad Co. v. Railroad Commission of Texas, 833
F.2d 570, 574 (5th Cir. 1987), FELA relief would clearly be precluded on that ground.
A jury verdict for the plaintiff cannot impose “‘different or higher standards’ of track
construction by superimposing the walkway requirement on federal track . . . structure
regulations.” See id. at 575. In that instance, the railroad could not comply both with
the judgment against it on the FELA claim and with the FRSA regulation.

         But nothing like that has yet been shown by defendants in this case. Unlike the
regulation at issue in Easterwood, the FRSA regulation is a floor that guarantees a
minimum level of safety and there are many ways that the railroad can meet the standard.
The manner in which the railroad complies with the standard may involve using ballast
that is more or less conducive to creating safe walkways for railroad employees. While
compliance with the FRSA regulation is evidence of due care, it “does not preclude
finding negligence if reasonable railroads would have taken additional precautions to
prevent injury to their employees.” Lane, 241 F.3d at 442.



         3
            I recognize that Norris v. Central of Georgia Railroad Co., 635 S.E.2d 179 (Ga. Ct. App. 2006),
is to the contrary, and that some non-FELA cases have reasoning that is in some tension with this analysis.
See Norfolk & W. Ry. Co. v. Burns, 587 F.Supp. 161, 170 (E.D. Mich. 1984) (concluding that walkways
are a part of track structure and thus immune from additional state regulation); Black v. Seaboard Sys. R.R.,
487 N.E.2d 468, 469 (Ind. Ct. App. 1986) (concluding that walkways are a part of track structure and thus
covered by FRSA regulations); Black v. Balt. & Ohio R.R. Co., 398 N.E.2d 1361, 1363 (Ind. Ct. App.
1980) (deciding that the regulations, “although not specifically dealing with” muddy walkways, regulated
the entire track structure).
Nos. 07-1736/2437     Nickels, et al. v. Grand Trunk Western R.R., et al.    Page 15


       Because defendants have not shown that the regulation would preempt state
actions under Easterwood’s standard, it similarly does not preclude FELA relief.
