                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-1630
                                    ___________

United Transportation Union,            *
                                        *
             Petitioner,                *
                                        *
      v.                                *
                                        *
Honorable Rodney Slater, Secretary      *
of Transportation; United States        *
Department of Transportation;           * Petition for Review of an Order
Honorable Jolene Molitoris, Federal     * of the Federal Railroad Administration
Railroad Administor; Federal            *
Railroad Administration,                *
                                        *
             Respondents.               *
                                        *
Norfolk and Western Railway Co.,        *
                                        *
             Intervenor on Appeal.      *
                                   ___________

                       Submitted:    November 19, 1997

                               Filed: July 16, 1998
                                     ___________

Before McMILLIAN and WOLLMAN, Circuit Judges, and STEVENS,1 District
      Judge.

      1
       The Honorable Joseph E. Stevens, Jr., United States District Judge
      for the Western District of Missouri, sitting by designation.
                                      ___________

McMILLIAN, Circuit Judge.

       United Transportation Union (the union) petitions for review of a final order of
the Federal Railroad Administration (the FRA), an agency within the Department of
Transportation, holding that plans being carried out by Norfolk Southern Corporation
(Norfolk) to renovate sleeping quarters at a switching yard in Moberly, Missouri, do not
violate the Hours of Service Act (HSA), as amended in 1976, 49 U.S.C. § 21106.
Norfolk and Western Railway Company2 intervenes in support of the FRA’s decision.
The union filed its petition for review pursuant to 28 U.S.C. § 2344, and we have
jurisdiction to review the FRA’s decision pursuant to 28 U.S.C. § 2342. The union asks
us to (1) order the FRA to stop the renovations of Norfolk’s sleeping quarters at the
Moberly site on the ground that they violate 49 U.S.C. § 21106(2) and (2) order the
FRA to rule that the facility is not clean, safe, sanitary, and adequately free from noise,
in violation of § 21106(1). Brief for Petitioner at 18-19. For the reasons stated below,
we deny the relief requested in the petition for review.

                                      Background

       The sleeping and eating facilities for railroad workers at the Moberly, Missouri,
switching yard were originally constructed over thirty years ago. It is undisputed in the
present case that these living quarters are in the immediate vicinity of an area in which
railroad switching operations are performed. It is also essentially undisputed that, in
recent years, health and safety conditions at the Moberly site had reached intolerable



      2
       According to the affidavit of Eileen Meyers, a transportation analyst employed
by Norfolk, Norfolk and Western Railway Company is a wholly-owned subsidiary of
Norfolk. Addendum to Brief for Intervenor (Norfolk and Western Railway Company)
at 1.

                                           -2-
levels, workers and the union complained regularly, and violations were reported by
inspectors for the county and the FRA.

       In or about the spring of 1996, Norfolk developed plans to renovate the sleeping
and eating facilities at the Moberly site to address these problems. Upon learning of
Norfolk’s plans, the union complained to Norfolk that renovating the existing facilities
would violate the HSA3 because they were located too close to the switching operations.
In response, Norfolk assured the union that the proposed renovations would address all
past health and safety problems, including the noise problem. The union still opposed
the plans, however, citing other safety concerns resulting from the




      3
       The Hours of Service Act provides in relevant part:

      A railroad carrier and its officers and agents –

             (1) may provide sleeping quarters (including crew quarters, camp
      or bunk cars, and trailers) for employees, and any individuals employed
      to maintain the right of way of a railroad carrier, only if the sleeping
      quarters are clean, safe, and sanitary and give those employees and
      individuals an opportunity for rest free from the interruptions caused by
      noise under the control of the carrier; and

             (2) may not begin, after July 7, 1976, construction or reconstruction
      of sleeping quarters referred to in clause (1) of this section in an area or
      in the immediate vicinity of an area, as determined under regulations
      prescribed by the Secretary of Transportation, in which railroad switching
      or humping operations are performed.

49 U.S.C. § 21106.


                                          -3-
facilities’ proximity to the rail lines.4 Norfolk proceeded with the renovations as
planned.

       The union next complained to the FRA in September 1996. The union’s
complaint to the FRA was lodged by way of a telephone call and a letter confirming that
telephone call. See Addendum to Brief for Petitioner at 4 (letter dated Sept. 24, 1996,
from the union to the FRA). The union’s claims before the FRA were that (1) the
proposed renovations violated 49 U.S.C. § 21106(2) because they would constitute
“reconstruction” of the sleeping quarters in an area or in the immediate vicinity of an
area where railroad switching or humping operations are performed and (2) the sleeping
quarters would violate § 21106(1) because they would not be safe, clean, sanitary, and
would not give residents an opportunity for rest free from interruptions caused by noise
under Norfolk’s control.

       In a letter dated February 27, 1997, the FRA informed the union that it had
conducted an investigation and had decided not to take any action against Norfolk at
that time. Id. at 1-3 (letter dated Feb. 27, 1997, from the FRA to the union). The
FRA explained that, although its inspector had discovered sewage problems with the


      4
       The impetus for Congress’s enactment of § 21106(2), barring “construction or
reconstruction” of sleeping quarters in or near switching or humping operations, was
an accident in 1974, in Decatur, Illinois, in which seven railroad employees were killed
and over 100 were injured when an explosion occurred while hazardous substances
were being switched in the yard near sleeping and eating quarters. See Brief for
Petitioner at 4-5 (citing legislative history); Brief for Respondent at 6-7 & n.6.
Therefore, § 21106(2) resulted in part from Congress’s desire to minimize the dangers
to workers resulting from potential accidents or explosions in switching yards, not
merely its desire to address the noise issue. See United Transp. Union v. Dole, 797
F.2d 823, 832 (10th Cir. 1986) (Logan, J., concurring) (“I read Congress’ broader
intention to mean that a railroad should make no significant additional investment in
sleeping quarters near hazardous railroad switching or humping operations after July
1976.”) (emphasis added).

                                          -4-
underground piping system beneath the Moberly facility, the FRA was giving Norfolk
a reasonable amount of time to correct the problem before it would conduct a follow-up
inspection. Furthermore, the FRA stated, Norfolk’s plans to renovate the Moberly site
did not violate § 21106(2) because “[t]he estimated cost for remodeling the facility is
approximately $200,000, . . . about 25 percent of the cost to construct a new facility,”
which did not meet the FRA’s own regulatory definition of “reconstruction” as set forth
in 49 C.F.R. § 228.101.5 Finally, the FRA explained, two separate tests conducted by
the FRA showed that noise levels in the sleeping quarters were below the maximum
level permitted under 40 C.F.R. § 201.1 (railroad noise emissions standards) and
therefore did not violate § 21106(1). Thereafter, the union timely filed the instant
petition for review.

                                      Discussion

       The FRA’s decision to permit Norfolk’s planned renovations of the sleeping
quarters at the Moberly site was based upon a determination that the renovations did not
constitute “reconstruction” under 49 U.S.C. § 21106(2), as that term is defined by
regulation in 49 C.F.R.§ 228.101. The union argues, however, that the FRA lacked
authority to promulgate that regulation because Congress intended to delegate to the
FRA only limited authority to interpret terms within § 21106(2). More specifically, the

      5
       Pursuant to the HSA amendments, the FRA has promulgated a rule defining the
term “reconstruction” to include:

      [r]ehabilitation or improvement of an existing facility (normal periodic
      maintenance excepted) involving the expenditure of an amount
      representing more than 50 percent of the cost of replacing such facility on
      the same site at the time the work of rehabilitation or improvement began,
      the replacement cost to be estimated on the basis of contemporary
      construction methods and materials.

49 C.F.R. § 228.101.

                                          -5-
union contends that the FRA had statutory authority to interpret only the term
“immediate vicinity” because the statute provides: “A railroad carrier and its officers
and agents . . . may not begin, after July 7, 1976, construction or reconstruction of
sleeping quarters referred to in clause (1) of this section in an area or in the immediate
vicinity of an area, as determined under regulations prescribed by the Secretary of
Transportation, in which railroad switching or humping operations are performed.” 49
U.S.C. § 21106(2) (emphasis added). In support of this narrow interpretation of the
statutory language, the union compares the fact that “[o]n various occasions the FRA
has sought authority to issue regulations covering hours of service, and Congress has
refused to grant such power.” Brief for Petitioner at 16 (emphasis added). The union
further argues that the FRA exceeded its authority in promulgating 49 C.F.R. § 228.101
because its definition of “reconstruction” contradicts the plain and ordinary meaning
of the word and therefore is arbitrary, capricious, and contrary to the law. In support
of this argument, the union cites several dictionary definitions of “reconstruct,” which
generally include terms such as “repair” and “rehabilitate.” The union also suggests that
the FRA’s regulatory definition of “reconstruction” too readily permits, if not
encourages, circumvention of the statute’s intent. For this point, the union quotes from
the concurring opinion in United Transp. Union v. Dole, 797 F.2d 823, 832 (10th Cir.
1986) (Logan, J., concurring), stating that Congress, in enacting § 21106(2), was
frustrated with the FRA’s “earlier inaction on safety matters” and, consequently,
intended “that a railroad should make no significant additional investment in sleeping
quarters near hazardous railroad switching or humping operations after July 1976.”

       While we agree with the union that the renovations of the sleeping quarters at the
Moberly site probably violate the spirit of § 21106(2), through which Congress
indicated its desire to phase out facilities that are located in or near switching yards, we
hold that the union is bound, under the circumstances of this case, by the agency’s
actions. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842-45 (1984) (Chevron), the Supreme Court explained that, unless Congress has
expressly spoken to the precise question at issue and its intent is clear and

                                            -6-
unambiguous, the courts must defer to the administering agency’s interpretation of the
statute as set forth in the agency’s regulations. Where the statute is silent or ambiguous,
such legislative regulations interpreting the statute “are given controlling weight unless
they are arbitrary, capricious, or manifestly contrary to the statute. . . . [A] court may
not substitute its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency.” Id. at 844 (footnotes omitted).



       The term “reconstruction,” as used in § 21106(2), is imprecise and unclear.
Therefore, under Chevron, the question of its precise meaning is just the kind of
question for which we should defer to the administering agency for a regulatory answer.
Moreover, we do not agree with the union’s reading of the statute, construing
§ 21106(2)’s express reference to the Secretary of Transportation’s rulemaking
authority as a limitation on that authority. Nor are we persuaded by the union’s analogy
of the unrelated hours of service issue to the present “reconstruction” issue. We
therefore defer to the administrator of the FRA, as the delegate of the Secretary of
Transportation, in providing the pertinent regulatory interpretation. We conclude that
the FRA’s regulatory definition of “reconstruction” is not arbitrary, capricious, or
contrary to law when considered in light of the HSA as a whole. The HSA has a goal
of promoting “clean, safe, and sanitary” living conditions for railroad workers. 49
U.S.C. § 21106(1). The HSA also contemplates some degree of renovation or
improvement of grandfathered facilities; otherwise, the statute would read: “A railroad
carrier and its officers and agents . . . may not begin, after July 7, 1976, construction,
reconstruction, or renovation of sleeping quarters” or something to that effect.
Accordingly, we conclude that the FRA acted within its authority in promulgating 49
C.F.R. § 228.101, and we defer to the FRA’s construction and application of that
regulation in the present case. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555,
566 (1980) (“The [Supreme] Court has often repeated the general proposition that
considerable respect is due the interpretation given [a] statute by the officers or agency
charged with its administration.”) (internal quotation marks omitted) (citing cases).

                                           -7-
       On the separate issue of whether the sleeping quarters are so noisy, unsafe, and
insanitary as to violate § 21106(1), the union maintains that, in light of the conclusions
reached by the FRA upon inspecting the premises and its failure to take any action
against Norfolk, the FRA has “close[d] its eyes to the obvious.” Brief for Petitioner at
18. Therefore, the union urges this court to overturn the agency’s “arbitrary action” and
order the FRA to “find that the facility is not clean, safe, and sanitary, and not free from
noise under the control of [Norfolk].” Id. at 18-19. The union, in other words, asks this
court to order the FRA to find Norfolk in violation of § 21106(1) based entirely upon
evidence of living conditions that no longer exist. However, the union has not identified
any statutory remedy for past violations of § 21106(1). We therefore consider
Norfolk’s past violations, although apparently quite egregious, to be moot.6 In sum, we
hold that the union has failed to present this court with a justiciable claim under
§ 21106(1).




         6
         We note, however, that the FRA has made the following representations to this
court:

                 Of course, FRA will not permit [Norfolk] to provide the Moberly
         facility as sleeping quarters for covered employees if it is not in
         compliance with the [HSA]. If [Norfolk] completes the renovation and
         the facility is still not in compliance, then FRA will take whatever action
         is necessary to ensure compliance. The agency will protect the health and
         safety of the railroad workers to the full extent of the law.

Brief for Respondent at 35.

                                            -8-
                                      Conclusion

      For the reasons stated, the relief sought by the union in its petition for review is
denied.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -9-
