Labor & Employment Law Daily Wrap Up, SAFETY—8th Cir.: FRA preempted OSHA from fining employer for failing to ensure railcar fillers wore fall PPE, (Sep 2, 2025)

By Marjorie Johnson, J.D.

Because the Federal Railroad Administration already asserted its authority over employees working around railcars, OSHA erred in relying on its own agency guidance to find no preemption.

An Occupational Safety & Health Review Commission administrative law judge (ALJ) erred in finding that the Federal Railway Administration (FRA) did not preempt OSHA from citing an employer for failing to ensure that employees wore personal protective equipment (PPE) while working on top of railcars. Vacating the OSHA citation for violation of the OSHA regulation requiring employers to provide PPE under certain circumstances and the resulting penalty of $122,878.80, the Eighth Circuit held that the Federal Railroad Administration (FRA) had asserted its authority over working conditions unique to railroad operations in a 1978 policy statement, including the protection of employees working around railcars, and as such OSHA was barred from asserting jurisdiction over these same working conditions through its own agency guidance (MFA Enterprises, Inc. v. Occupational Safety and Health Review Commission, No. 24-3107 (8th Cir. Aug. 28, 2025)).

The employer shipped grain from its grain handling facility via the railroad. As part of its “railcar loadout” process, employees would open lids on the railcar roof (about 15 feet off the ground) to allow a spout to transfer the grain from storage bins into the railcar. A tracking system pushed the railcars along the track into position under the grain spouts while employees opened and closed the lids during the filling process.

Fall PPE. The employer had a fall protection system in place for the railcar loadout process by which employees would connect to an overhead trolley through a harness and a self-retracting lifeline. However, employees did not like to use the fall protection system for various reasons. Nevertheless, the employer’s safety training instructed employees: “If there is railcar fall protection present, you must use it every time.”

Cited for PPE violation. During an onsite inspection, an OSHA inspector learned that employees frequently did not wear fall protection PPE while working on top of railcars and were not disciplined despite the supervisors being aware of this activity. The Secretary of Labor cited the employer for a willful and serious violation of 29 C.F.R. § 1910.132(d)(1)(i), which requires that an employer: “[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.” Specifically, the employer was cited for failing to ensure employees wore personal protective equipment (PPE) while working on top of railcars.

ALJ decision. After a hearing, the ALJ upheld the citation and imposed a penalty of $122,878.80. While there was no written hazard assessment of the dangers of a fall during railcar loadout, the ALJ found the employer acknowledged the fall hazard based on the existence of the fall protection system, testimony from a safety director, and the safety training.

FRA preemption and “working conditions.” On appeal, the employer asserted that the FRA preempted OSHA’s application of Section 1910.132(d)(1)(i) to employees working on top of railcars. The Eighth Circuit agreed, noting that under Section 653(b)(1), “Congress deprived OSHA of jurisdiction when (1) another federal agency has statutory authority to regulate the cited working conditions and (2) the other agency has exercised this authority by issuing applicable standards or regulations.” Consequently, courts have held that OSHA’s jurisdiction is preempted if another federal agency has “set standards for the environmental area where the employee customarily works.” For example, the Fourth Circuit has held that the FAA’s security protocols for passenger lounges preempted OSHA’s regulations on exit doors.

OSHA memorandum. Here, because the plain language of OSHA’s PPE regulation did not address working on top of railcars, the ALJ relied upon a 1996 OSHA memorandum—the so-called “Miles Memorandum”—to uphold the citation under Section 1910.132(d)(1)(i). The memorandum includes an interpretation of when Section 1910.132(d) applies to working on top of railcars, and in relevant part states that it would not be appropriate to use the PPE standard, “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.” According to the memorandum, “[i]n such cases, fall protection systems often can be and, in fact, are used in many facilities in the industry.”

FRA policy statement. This was error, held the Eighth Circuit, since the FRA asserted its authority over working conditions unique to railroad operations in a 1978 policy statement, including the protection of employees working around railcars. 43 Fed. Reg. at 10,586. “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,’” explained the Eighth Circuit.

Accordingly, “OSHA’s attempt to assert jurisdiction over these same working conditions through the Miles Memorandum is invalid.” Because FRA asserted its authority over the environmental area of railcars, the other federal agency preempted OSHA’s jurisdiction over working conditions on top of railcars.

The case is No. 24-3107.

Judge: Erickson, R.

Attorneys: Tedrick A. Housh, III (Lathrop GPM) for MFA Enterprises, Inc. dba West Central Agri Services. Louise McGauley Betts, U.S. Department of Labor, for Occupational Safety and Health Review Commission and Secretary of Labor.

Companies: MFA Enterprises, Inc.; West Central Agri Services

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