Village of Mundelein v. Wisconsin Central Railroad

Docket No. 103543.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE VILLAGE OF MUNDELEIN, Appellant, v. WISCONSIN
CENTRAL RAILROAD, Appellee.

Opinion filed January 25, 2008.

JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,
Karmeier, and Burke concurred in the judgment and opinion.

OPINION

Defendant, Wisconsin Central Railroad (Wisconsin Central), was
issued a citation for violating an ordinance enacted by plaintiff, the
Village of Mundelein (Village), prohibiting obstruction of a railroad-
highway grade crossing. Following a bench trial, the trial court found
Wisconsin Central guilty of violating the ordinance and imposed a fine
of $14,000 plus costs. The appellate court reversed the trial court’s
judgment and vacated the fine, holding that the Village’s ordinance is
preempted by the Federal Railroad Safety Authorization Act of 1994
(FRSA) (49 U.S.C. §20101 et seq. (2000)). 367 Ill. App. 3d 417. For
the reasons that follow, we agree that the Village’s ordinance is
preempted by the FRSA. Accordingly, we affirm the judgment of the
appellate court.
 I. BACKGROUND
The Village charged Wisconsin Central with violating its ordinance
by allowing a train to block a railroad-highway grade crossing for 157
minutes. The Village’s ordinance prohibits obstruction of public travel
on a highway at a railroad crossing for more than 10 minutes, except
when a train or railroad car is continuously moving or cannot be
moved due to circumstances beyond the rail carrier’s reasonable
control. Prior to trial, Wisconsin Central filed a brief and offer of
proof contending it did not violate the ordinance because the train was
stopped due to circumstances beyond its reasonable control.
Wisconsin Central also argued that the FRSA preempts enforcement
of the ordinance.
At the bench trial, train conductor Bernard Kareka testified that
he and the engineer assumed control of the train in Lake Villa, Illinois.
The train had been left there by the previous crew on their way
southbound from Wisconsin to Schiller Park, Illinois. Consisting of 3
locomotive engines and 119 cars, the train had stopped in Lake Villa
for approximately three to four hours. The previous crew departed
and left a note stating that the train had “bad air,” meaning there was
a problem with the air brakes. The previous crew had repaired a
couple of air leaks by changing the gaskets between the air hoses.
Based upon the note, Kareka believed the previous crew had repaired
any problem with the air brakes.
Kareka testified that he looked at several cars behind the
locomotives to locate the hand brakes while the engineer inspected the
locomotives. They released the hand brakes identified as being set in
the previous crew’s report. Kareka and the engineer then conducted
a job briefing, reviewed reports from the previous crew, and ensured
that any cars containing hazardous materials were placed in the proper
location in the train.
Kareka further testified that federal regulations require verification
that the air brakes are in working order before moving the train. The
crew, therefore, conducted tests on the air brake system. The crew
verified that the air pressure on the rear of the train was within 15
pounds of the pressure on the front as required by federal regulations.
The engineer conducted a “set and release” test to verify that the

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brakes were in working order and there was sufficient air pressure
throughout the brake system. Kareka testified that, as a crew taking
over operation of a train already underway, they were not required to
inspect the entire train or perform any tests beyond those they
completed.
After completing the inspections and tests, the train left Lake Villa
heading south toward the Village. Upon approaching the Village, a
“hot box detector” went off, indicating that equipment was dragging
from the rear car of the train. The engineer began slowing the train
when a sudden loss of air pressure caused the emergency brakes to
apply on each car. The train suddenly stopped.
When the crew was unable to restore air pressure in the brake
system on the rear of the train, Kareka got out to make a visual
inspection. He noted that his footing was “very bad” and he had to
hold onto the train cars to keep his balance due to the rough roadbed
and the angle of the embankment. In walking the length of the train,
Kareka discovered that an “angle cock” was misaligned on one of the
cars. Kareka explained that an angle cock is a valve that regulates the
air flow through the brake line in the cars. He asserted that the angle
cock could have been knocked out of position by debris, vibration
from the moving train, or sabotage. Kareka stated that when the
engineer slowed the train to pass through the Village, the brakes on
the front of the train would have set faster than those on the rear due
to the angle cock’s misalignment. This condition caused the rear
portion of the train to collide with the front braking portion.
Kareka straightened the angle cock, continued the inspection, and
discovered that the “drawbar” had broken and fallen off the rear of the
seventy-sixth car, six cars behind the one with the misaligned angle
cock. The train had separated and the emergency brakes applied due
to the broken drawbar. The drawbar had fallen under the following car
damaging the air hose.
After assessing the damage, the crew positioned the separated rear
portion of the train to avoid obstructing any highway crossing. The
crew proceeded south with the front part of the train and left the car
with the broken drawbar on a spur track. The crew then reversed the
train and returned to reconnect with the rear portion left on the track.

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 When they reached the rear portion of the train, the crew began
the process of reconnecting it to the front portion. Kareka replaced
the damaged air hose and reconnected the train. The crew then
conducted brake tests, restored the air pressure to the required level,
and moved the train to a location blocking Hawley Street in the
Village, where they removed the rear car with the dragging
equipment. The crew was then required by federal regulations to
perform another air pressure test on the brake system. The crew was
unable to restore the brake system air pressure to the required level on
the rear of the train. Kareka reinspected the train, checking for leaks
in the brake system. A crew from another train assisted Kareka in
inspecting the brake system for leaks.
While the train continued to block the Hawley Street crossing, a
Metra commuter train arrived at the Village station. The passengers
from the Metra train could not get to their cars because Wisconsin
Central’s train was blocking access to the parking lot. The Wisconsin
Central train was then separated to allow the passengers access to the
parking lot. When the passengers cleared the tracks, the train was
reconnected. However, the crew was still unable to restore the brake
system air pressure in the rear portion of the train to the required
level.
While Kareka and other employees tried to correct the problem,
another Metra train arrived at the station. The crew again separated
the train to allow Metra passengers access to the parking lot. At that
point, a Wisconsin Central dispatcher directed the crew to take the
front portion of the train to Schiller Park. The crew verified that the
front portion of the train had adequate air pressure and proceeded
south to Schiller Park. The rear portion was later attached to another
train and brought to Schiller Park. The parties stipulated that the train
blocked the Hawley Street crossing for 157 minutes.
After hearing closing arguments by the parties, the trial court
asserted that if the crew had completed a visual inspection of the train
before leaving Lake Villa “there may have not been a problem.” A
visual inspection may have revealed the misaligned angle cock and
could have prevented the subsequent problems with the train in the
Village. According to the court, a visual inspection of the train was
within Wisconsin Central’s reasonable control. Therefore, Wisconsin
Central violated the ordinance because the circumstances resulting in

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obstruction of the Hawley Street crossing were within its reasonable
control. The trial court further found that the Village’s ordinance was
not preempted by the FRSA. Accordingly, the trial court found
Wisconsin Central guilty of violating the ordinance and imposed a fine
of $14,000 plus costs.
On appeal, Wisconsin Central argued that enforcement of the
Village’s ordinance is preempted by the FRSA and by requiring a
visual inspection of the train before leaving Lake Villa, the trial court
imposed additional duties of inspection in an area of law preempted by
the FRSA. 367 Ill. App. 3d at 421. The appellate court held that the
Village’s ordinance is preempted. 367 Ill. App. 3d at 432. The
appellate court, therefore, declined to address the trial court’s
application of the ordinance to the facts of this case. 367 Ill. App. 3d
at 432. The appellate court reversed the trial court’s judgment and
vacated the fine. 367 Ill. App. 3d at 432.
We allowed the Village’s petition for leave to appeal. 177 Ill. 2d
R. 315(a). We then allowed the Illinois Municipal League to file an
amicus curiae brief in support of the Village and the Association of
American Railroads to file an amicus curiae brief in support of
Wisconsin Central. 155 Ill. 2d R. 345.

II. ANALYSIS
On appeal to this court, the Village contends that: (1) its
ordinance is not preempted by the FRSA; and (2) the trial court did
not err in finding that Wisconsin Central violated the ordinance
because the cause of the obstruction was within Wisconsin Central’s
reasonable control. The United States Supreme Court has stated that
a preemption defense raises a threshold issue. Sprietsma v. Mercury
Marine, 537 U.S. 51, 56, 154 L. Ed. 2d 466, 473, 123 S. Ct. 518, 522
(2002). The Court has, therefore, declined to address the merits or
viability of underlying claims before considering preemption.
Sprietsma, 537 U.S. at 56, 154 L. Ed. 2d at 473, 123 S. Ct. at 522.
Likewise, when a preemption issue has been raised in this court, we
have addressed it first before proceeding to the merits of the parties’
specific claims. See Kinkel v. Cingular Wireless, LLC, 223 Ill. 2d 1,
15 (2006) (stating further analysis of the enforceability of an
arbitration clause would not be necessary if the plaintiff’s claim were

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preempted by federal law). Accordingly, we will first address the
parties’ preemption arguments.
The supremacy clause of the United States Constitution provides
that “[t]his Constitution, and the Laws of the United States *** shall
be the supreme Law of the Land *** any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.” U.S. Const., art.
VI, cl. 2. State law is preempted under the supremacy clause in three
circumstances: (1) when the express language of a federal statute
indicates an intent to preempt state law; (2) when the scope of a
federal regulation is so pervasive that it implies an intent to occupy a
field exclusively; and (3) when state law actually conflicts with federal
law. English v. General Electric Co., 496 U.S. 72, 78-79, 110 L. Ed.
2d 65, 74, 110 S. Ct. 2270, 2275 (1990).
The determination of whether state law is preempted turns on the
intent of Congress. Wisconsin Public Intervenor v. Mortier, 501 U.S.
597, 604, 115 L. Ed. 2d 532, 542, 111 S. Ct. 2476, 2481 (1991).
When interpreting a federal statute pertaining to a subject traditionally
governed by state law, courts are reluctant to find preemption unless
Congress’ preemptive intent is clear and manifest. CSX
Transportation, Inc. v. Easterwood, 507 U.S. 658, 664, 123 L. Ed. 2d
387, 396, 113 S. Ct. 1732, 1737 (1993); Mortier, 501 U.S. at 605,
115 L. Ed. 2d at 543, 111 S. Ct. at 2482. Whether a federal statute
preempts a state or local enactment presents a question of law subject
to de novo review. Kinkel, 223 Ill. 2d at 15, citing Schultz v.
Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260,
288 (2002).
Congress enacted the FRSA in 1970 “to promote safety in every
area of railroad operations and reduce railroad-related accidents and
incidents.” (Emphasis added.) 49 U.S.C. §20101 (2000). The FRSA
grants the Secretary of Transportation the authority to “prescribe
regulations and issue orders for every area of railroad safety.” 49
U.S.C. §20103(a) (2000). The FRSA explicitly directs the Secretary
of Transportation to develop and implement solutions to safety
problems at grade crossings. 49 U.S.C. §20134 (2000).
The preemptive effect of regulations issued by the Secretary of
Transportation is governed by an express preemption clause in section
20106 of the FRSA (49 U.S.C. §20106 (2000)). When a statute
contains an express preemption clause, we must construe that

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provision with a focus on its plain language that necessarily bears the
best evidence of Congress’ intent. Sprietsma, 537 U.S. at 62-63, 154
L. Ed. 2d at 477, 123 S. Ct. at 526, quoting Easterwood, 507 U.S. at
664, 123 L. Ed. 2d at 396, 113 S. Ct. at 1737. Section 20106
provides that:
“Laws, regulations, and orders related to railroad safety
and laws, regulations, and orders related to railroad security
shall be nationally uniform to the extent practicable. 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–
(1) is necessary to eliminate or reduce an essentially local
safety or security hazard;
(2) is not incompatible with a law, regulation, or order of
the United States Government; and
(3) does not unreasonably burden interstate commerce.”
49 U.S.C. §20106 (2000 & Supp. 2004).
By its terms, section 20106 applies only to laws, regulations, or
orders “related to” railroad safety or security. 49 U.S.C. §20106
(Supp. 2004). The phrase “relating to” has been given a broad
meaning. Easterwood, 507 U.S. at 664, 123 L. Ed. 2d at 397, 113 S.
Ct. at 1738, citing Morales v. Trans World Airlines, Inc., 504 U.S.
374, 383-84, 119 L. Ed. 2d 157, 167-68, 112 S. Ct. 2031, 2037
(1992). The Supreme Court has interpreted that phrase to mean
“having a connection with, or reference to,” a certain subject matter.
Morales, 504 U.S. at 384, 112 S. Ct. at 2037, 119 L. Ed. 2d at 167.
The Village has adopted by reference the blocked-crossing
provision in the Illinois Vehicle Code (Code) (625 ILCS 5/1–100 et
seq. (West 2004)). Mundelein Municipal Code §10.02.010 (1989).
The ordinance at issue is set forth in section 18c–7402(1)(b) of the
Code, providing that:

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 “It is unlawful for a rail carrier to permit any train, railroad
car or engine to obstruct public travel at a railroad-highway
grade crossing for a period in excess of 10 minutes, except
where such train or railroad car is continuously moving or
cannot be moved by reason of circumstances over which the
rail carrier has no reasonable control.” 625 ILCS
5/18c–7402(1)(b) (West 2004).
The plain language of the ordinance applies exclusively to railroad
operations, requiring rail carriers to prevent obstructions of highway
grade crossings except in certain specified circumstances. Section
18c–7402 is entitled “Safety Requirements for Railroad Operations.”
625 ILCS 5/18c–7402(1)(b) (West 2004). The section, therefore,
refers to railroad safety requirements. A “connection with, or
reference to,” railroad safety is all that is required for application of
section 20106. See Morales, 504 U.S. at 384, 119 L. Ed. 2d at 167,
112 S. Ct. at 2037. The Village’s ordinance has the required
connection with or reference to railroad safety and, therefore, it falls
within the scope of section 20106.
Having determined that section 20106 applies, we must consider
whether the Secretary of Transportation has issued regulations or
orders that preempt the Village’s ordinance. Section 20106 dictates
that to preempt state law, a federal regulation must “cover” the same
subject matter, not merely “touch upon” or “relate to” that subject
matter. Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 352, 146
L. Ed. 2d 374, 382, 120 S. Ct. 1467, 1473 (2000), citing Easterwood,
507 U.S. at 664, 123 L. Ed. 2d at 397, 113 S. Ct. at 1738. The term
“cover” is restrictive, indicating that preemption will be found only if
federal regulations “substantially subsume the subject matter of the
relevant state law.” Easterwood, 507 U.S. at 664-65, 123 L. Ed. 2d
at 397, 113 S. Ct. at 1738. The party advocating preemption has the
burden of establishing the preemptive effect of regulations.
Easterwood, 507 U.S. at 664-65, 123 L. Ed. 2d at 397, 113 S. Ct. at
1738.
The preemption issue here depends on whether regulations issued
by the Secretary of Transportation substantially subsume the subject
matter of the Village’s ordinance. The Village asserts that the subject
matter of its ordinance is the amount of time a standing train may

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obstruct a highway grade crossing. On the subject matter of a state
law, the Seventh Circuit Court of Appeals has stated:
“ ‘The subject matter of the state requirement’ is the safety
concerns that the state law addresses. [Citation.] Generally,
determining the safety concerns that a state or federal
requirement is aimed at will necessarily involve some level of
generalization that requires backing away somewhat from the
specific provisions at issue. [Citation.] Otherwise a state law
could be preempted only if there were an identical federal
regulation, and, as we noted, Easterwood teaches that this is
not so. See 507 U.S. at 674, 113 S. Ct. 1732 (preemption
found through series of related regulations and overall
structure of the regulations, although no regulation directly
addressed the state requirement); see also Burlington
Northern R.R., 880 F.2d at 1106 (FRA regulation permitting
telemetry device rather than visual inspection preempted state
law requiring trains to have a caboose because both were
aimed at the safety concern of monitoring brakes and signals
at the rear of the train). But with too much generalizing–
‘public safety’ or ‘rail safety’–our analysis would be
meaningless because all FRA regulations cover those
concerns.” Burlington Northern & Santa Fe Ry. Co. v. Doyle,
186 F.3d 790, 796 (7th Cir. 1999).
In a recent preemption case involving a blocked-crossing statute,
the Pennsylvania Supreme Court rejected an argument similar to the
one the Village advances on the subject matter of its ordinance. See
Krentz v. Consolidated R. Corp., 589 Pa. 576, 600-01, 910 A.2d 20,
35 (2006). The plaintiffs in Krentz argued that the Pennsylvania
blocked-crossing statute was directed at limiting the amount of time
a standing train may obstruct a highway crossing. Krentz, 589 Pa. at
600, 910 A.2d at 35. In determining the subject matter of the statute,
the Pennsylvania Supreme Court focused on its location within the
Pennsylvania statutes and its plain language. Krentz, 589 Pa. at 600-
01, 910 A.2d at 35, citing CSX Transportation, Inc. v. City of
Plymouth, 92 F. Supp. 2d 643, 651 (E.D. Mich. 2000), aff’d, 283
F.3d 812 (6th Cir. 2002). The court concluded that the codification
and plain language of the blocked-crossing statute indicated that its

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subject matter was the regulation of the movement of trains. Krentz,
589 Pa. at 600-01, 910 A.2d at 35.
We agree that the codification and plain language of a statute are
relevant in determining its subject matter. Here, the Village’s
ordinance is adopted by reference from section 18c–7402(1)(b) of the
Illinois Vehicle Code. See 625 ILCS 5/18c–7402(1)(b) (West 2004).
Although section 18c–7402(1)(b) is contained within the Code, it is
more specifically located in subchapter 7 of the Illinois Commercial
Transportation Law, entitled “Rail Carriers” (625 ILCS 5/18c–7101
et seq. (West 2004)). True to its name, each provision in that
subchapter regulates railroads. Section 18c–7402(1)(b) is located in
Article IV of subchapter 7. Article IV is entitled “Safety Requirements
for Rail Carriers” (625 ILCS 5/18c–7401 et seq. (West 2004)). The
specific title of section 18c–7402(1)(b) is “Safety Requirements for
Railroad Operations” (625 ILCS 5/18c–7402 (West 2004)).
Most importantly, the plain language of the Village’s ordinance
applies only to rail carriers and prohibits them from allowing trains to
obstruct public travel at highway grade crossings except in specified
circumstances. The ordinance is aimed at keeping trains moving
through highway grade crossings. As in Krentz, the plain language of
the Village’s ordinance is directed at regulating the movement of
trains. Therefore, consistent with the context and plain language of the
ordinance, we conclude that its subject matter is the movement of
trains through grade crossings.
On this point, we note that the Village also argues the primary
purpose of its ordinance is to allow police, fire, and ambulance
services to be free from obstructions in responding to calls, while its
secondary purpose is to prevent traffic congestion. The Supreme
Court, however, has refused to rely solely upon the professed purpose
of a state law and has also examined its effect when determining its
impact on a federal scheme. Gade v. National Solid Wastes
Management Ass’n, 505 U.S. 88, 105, 120 L. Ed. 2d 73, 89, 112 S.
Ct. 2374, 2387 (1992). A state law may not frustrate the operation of
federal law by claiming some purpose other than that specifically
addressed by the federal law. Rather, the supremacy clause renders
invalid any state legislation that frustrates the full effectiveness of
federal law. Gade, 505 U.S. at 105-06, 120 L. Ed. 2d at 89, 112 S.
Ct. at 2387, quoting Perez v. Campbell, 402 U.S. 637, 651-52, 29 L.

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Ed. 2d 233, 243-44, 91 S. Ct. 1704, 1712 (1971). Thus, “[i]t is the
effect of the state law that matters in determining preemption, not its
intent or purpose.” (Emphasis in original.) Teper v. Miller, 82 F.3d
989, 995 (11th Cir. 1996). The effect of the ordinance, and its subject
matter, is to regulate the movement of trains at highway grade
crossings.
We must, therefore, determine whether the Secretary of
Transportation has issued regulations that substantially subsume the
subject of the movement of trains at grade crossings. The parties focus
primarily on federal regulations governing train speed and air brake
testing. The Village argues its ordinance does not regulate train speed
because it does not apply to moving trains or prescribe a minimum
speed at highway grade crossings. Further, the Village argues a
railroad’s compliance with federal air brake testing regulations may
constitute a circumstance beyond its reasonable control. Thus, the
ordinance may provide an affirmative defense when a train blocks a
crossing while the crew diligently conducts federally mandated air
brake tests. Wisconsin Central responds that the Village’s ordinance
interferes with consistent application of federal regulations on speed
and air brake testing.
Initially, we note that preemption does not depend upon a single
federal regulation covering the subject matter of a state law. Doyle,
186 F.3d at 795. Rather, preemption may be found by examining
related safety regulations and the overall structure of the regulations.
Doyle, 186 F.3d at 795, citing Easterwood, 507 U.S. at 674, 123 L.
Ed. 2d at 402-03, 113 S. Ct. at 1742.
The Secretary of Transportation has issued regulations setting
maximum operating speeds for different classes of track. 49 C.F.R.
§213.9(a) (1992); Easterwood, 507 U.S. at 662, 123 L. Ed. 2d at 395-
96, 113 S. Ct. at 1737. In Easterwood, the Supreme Court interpreted
those regulations, asserting that “the speed limits must be read as not
only establishing a ceiling, but also precluding additional state
regulation.” Easterwood, 507 U.S. at 674, 123 L. Ed. 2d at 402-03,
113 S. Ct. at 1742. The Court held that the regulations “should be
understood as covering the subject matter of train speed with respect
to track conditions, including the conditions posed by grade
crossings.” Easterwood, 507 U.S. at 675, 123 L. Ed. 2d at 403, 113
S. Ct. at 1743.

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 The Secretary has also issued detailed regulations on air brake
testing. 49 C.F.R. pt. 232 (2006). Those regulations provide
comprehensive requirements for inspection and testing of brake
systems, and control the timing and performance of tests and
inspections. 49 C.F.R. §§232.201 through 232.219 (2006). Relevant
to this case, the Secretary has issued regulations establishing the
testing required following the removal of a car from a train and the
interruption of brake pipe continuity. 49 C.F.R. §232.211 (2006). The
movement of trains is restricted until the tests are completed and
brake pipe pressure is restored. 49 C.F.R. §232.211 (2006).
Further, the Secretary has issued regulations on grade crossing
safety. See 49 C.F.R. §§234.105, 234.106, 234.107 (2006). Those
regulations control the speed of trains in the event of a failure, partial
activation, or false activation of a grade crossing warning system and,
in some circumstances, require trains to stop before proceeding
through a crossing. 49 C.F.R. §§234.105, 234.106, 234.107 (2006).
These various regulations on train speed, air brake testing, and
grade crossing safety work together to regulate and control the
movement of trains at grade crossings. They control whether a train
may be moved and the speed of a moving train. Taken together, the
overall structure of these regulations substantially subsumes the
subject matter of the movement of trains at grade crossings. We,
therefore, find that the regulations manifest a clear intent to preempt
the Village’s ordinance on that subject matter.
We note that our decision on this issue is consistent with other
federal and state cases considering preemption of similar blocked-
crossing laws. See CSX Transportation, Inc. v. City of Plymouth, 283
F.3d 812, 817 (6th Cir. 2002); CSX Transportation, Inc. v. City of
Mitchell, 105 F. Supp. 2d 949, 952 (S.D. Ind. 1999); Krentz, 589 Pa.
at 604-05, 910 A.2d at 43-44; City of Seattle v. Burlington Northern
R.R. Co., 145 Wash. 2d 661, 673, 41 P.2d 1169, 1175 (2002).
Although the blocked-crossing provisions in those cases are each
somewhat different from the Village’s ordinance, they are similar to
the Village’s ordinance because they regulate the movement of trains
by prohibiting railroad obstructions at grade crossings in specified
circumstances. See CSX Transportation, Inc., 283 F.3d at 817; CSX
Transportation, Inc., 105 F. Supp. 2d at 951; Krentz, 589 Pa. at 600-
01, 910 A.2d at 35; City of Seattle, 145 Wash. 2d at 667, 41 P.3d at

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1172. Those blocked-crossing provisions were found to be preempted
by federal regulations on train speed, train movement, or air brake
testing. CSX Transportation, Inc., 283 F.3d at 817; CSX
Transportation, Inc., 105 F. Supp. 2d at 952-53; Krentz, 589 Pa. at
601, 910 A.2d at 36; City of Seattle, 145 Wash. 2d at 673, 41 P.3d at
1175. Thus, those cases provide additional persuasive authority for
our decision.
While based on different reasoning, other cases have reached the
same result in finding blocked-crossing ordinances preempted by the
FRSA. See CSX Transportation, Inc. v. City of Plymouth, Michigan,
86 F.3d 626 (6th Cir. 1996); Rotter v. Union Pacific R.R. Co., 4 F.
Supp. 2d 872 (E.D. Mo. 1998). A municipal ordinance establishing a
train speed limit was also held preempted by the FRSA. See City of
Covington v. Chesapeake & Ohio Ry. Co., 708 F. Supp. 806 (E.D.
Ky. 1989).
We have found one reported case that held a blocked-crossing
provision was not preempted by the FRSA. See State v. Wheeling &
Lake Erie Ry. Co., 139 Ohio App. 3d 271, 743 N.E.2d 513 (2000).
In that case, the court construed the subject matter of an Ohio
blocked-crossing statute as governing the length of time a stopped
train may block a highway grade crossing. The court held that the
statute was not preempted because there was no federal regulation
addressing that specific subject matter. Wheeling & Lake Erie Ry. Co.,
139 Ohio App. 3d at 274, 743 N.E.2d at 514. The court also cited
State v. Chessie System R.R., No. 2494 (Oh. App. January 3, 1990)
(unpublished), as support for its decision. There, the Ohio Appellate
Court stated without analysis that “[a]s [the FRSA] expressly allows
the states to regulate essentially local safety hazards, there is no
explicit or implicit preemption of the subject matter of [the Ohio
blocked-crossing statute].” Chessie System R.R., No. 2494
(unpublished). The court went on to address a commerce clause
argument by the Railroad that compliance with both the Ohio statute
and federal regulations was impossible. The court held there was no
evidence in the record of the physical impossibility of dual compliance
with both the state and federal regulations. Chessie System R.R., No.
2494 (unpublished).
These cases are distinguishable. First, in this case, we rejected the
Village’s argument that the ordinance’s subject matter is the amount

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of time a standing train may obstruct a crossing. Rather, we
determined that the subject matter of the Village’s ordinance is the
regulation of the movement of trains at highway grade crossings.
Thus, the fact that there is no specific federal regulation governing the
amount of time a standing train may block a highway grade crossing
is irrelevant to our analysis. As we have found, the federal regulations
as a whole substantially subsume the subject matter of the movement
of trains at grade crossings. The analysis in Chessie System R.R. is
also unpersuasive because it does not employ the statutory standards
for addressing a claim of preemption under section 20106 of the
FRSA. Rather, the court simply stated the Ohio statute is not
preempted by the FRSA and then addressed a commerce clause
argument by one of the parties on whether compliance with both the
federal regulations and the state statute “is a physical impossibility.”
Chessie System R.R., No. 2494.
The Village has failed to direct our attention to any other federal
or foreign state case holding a blocked-crossing provision was not
preempted by the FRSA. The appellate court specifically commented
that the Village “provide[d] no authority whatsoever in support of its
position that the FRSA [did] not preempt its ordinance.” 367 Ill. App.
3d at 430. In this court, the Village relies heavily upon the recent
Illinois appellate court decision in Eagle Marine Industries, Inc. v.
Union Pacific R.R. Co., 363 Ill. App. 3d 1166 (2006). We accepted
that case for review and, today, reverse based upon this opinion.
Having found that the Village’s ordinance is preempted, we must
next consider whether the saving clause in section 20106 applies to
the ordinance. The saving clause provides that:
“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–
(1) is necessary to eliminate or reduce an essentially local
safety or security hazard;
(2) is not incompatible with a law, regulation, or order of
the United States Government; and
(3) does not unreasonably burden interstate commerce.”
49 U.S.C. §20106 (2000 & Supp. 2004).

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 Here, the Village’s ordinance is adopted by reference from an
Illinois statute. See 625 ILCS 5/18c–7402(1)(b) (West 2004). The
parties argue extensively on whether the saving clause is applicable
only to state enactments or also encompasses laws issued by a state’s
political subdivisions. In our view, there is considerable uncertainty as
to whether the term “State” is intended to apply only to state
enactments or may also include those of a political subdivision. We
need not decide that issue, however, because we conclude that even
if the ordinance is treated as a state statute, the saving clause does not
apply.
Overall, the ordinance fails to satisfy at least two prongs of the
saving clause because it is incompatible with the federal regulations on
train speed and air brake testing and it burdens interstate commerce.
It is, therefore, unnecessary to discuss the first prong of the saving
clause on local safety or security hazards. First, viewing train speed,
the Village’s ordinance prohibits rail carriers from obstructing
highway grade crossings for more than 10 minutes. There are
exceptions to this prohibition if the train is “continuously moving” or
cannot be moved due to circumstances beyond the rail carrier’s
reasonable control. The ordinance, therefore, requires a train that
stops for a reason within its control to clear the crossing within 10
minutes.
In those circumstances, the train may be required to adjust its
speed or length to clear the crossing within 10 minutes to avoid
violating the ordinance. See CSX Transportation, Inc., 283 F.3d at
817 (“the amount of time a moving train spends at a grade crossing is
mathematically a function of the length of the train and the speed at
which the train is traveling”). The appellate court aptly summarized,
“[p]ut another way, the regulation here is a regulation of train speed
and length, although it applies only when a train stops at a crossing.”
367 Ill. App. 3d at 428.
The Supreme Court has interpreted the federal regulations
covering train speeds to preclude additional state regulation.
Easterwood, 507 U.S. at 674, 123 L. Ed. 2d at 402-03, 113 S. Ct. at
1742. The federal regulations apply to all track conditions including
those at grade crossings. Easterwood, 507 U.S. at 675, 123 L. Ed. 2d
at 403, 113 S. Ct. at 1743. Thus, the Village’s ordinance regulating
train speed at grade crossings is incompatible with federal regulations

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on that subject. Furthermore, the Supreme Court has held that any
state regulation of train length violates the commerce clause. Southern
Pacific Co. v. Arizona, 325 U.S. 761, 775, 89 L. Ed. 1915, 1928, 65
S. Ct. 1515, 1523 (1945). The ordinance, therefore, also fails to
satisfy the third prong of the saving clause because it unreasonably
burdens interstate commerce.
Next, considering the federal air brake testing regulations, we find
the decision in Krentz persuasive. In that case, the Pennsylvania
Supreme Court reviewed a blocked-crossing statute that had been
interpreted as prohibiting trains from remaining stationary at highway
grade crossings for an unreasonable period of time. Krentz, 589 Pa. at
601, 910 A.2d at 35. The determination of whether the time period of
the obstruction was reasonable was a question for the jury. Krentz,
589 Pa. at 601, 910 A.2d at 35. In concluding that the blocked-
crossing statute was incompatible with the federal brake system
regulations, the court stated, “Simply put, the FRSA brake system
regulations direct trains to remain stationary, while [the Pennsylvania
statute] instructs them to keep moving.” Krentz, 589 Pa. at 602-03,
910 A.2d at 36. In reviewing whether the time period of the
obstruction was reasonable, the Court stated:
“The issue of whether the FRSA preempts [the
Pennsylvania statute] cannot be relegated to resolution on
such a case-by-case basis. If the liability of a railroad for
obstructing a given crossing depended upon the facts of each
individual case, then the very essence of the FRSA as a
comprehensive scheme of uniform railroad safety standards
would be thwarted.” Krentz, 589 Pa. at 602, 910 A.2d at 35-
36.
Similar to the Pennsylvania statute, the Village’s ordinance
requires rail carriers to show that the cause of the obstruction is not
within their reasonable control. The Village’s ordinance calls for the
same type of individualized, case-by-case determinations rejected in
Krentz. Indeed, the Village asserts that a railroad’s diligent compliance
with federal air brake testing regulations “may constitute a
circumstance beyond the control of the railroad.” (Emphasis added.)
However, the Village also argues that a mechanical failure is not
necessarily a defense if the failure could have been detected by routine
and regular inspections. These arguments illustrate the detailed case-

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by-case review of the railroad’s conduct required by the ordinance.
The inquiry also strikes at the crux of the federal regulatory scheme
of inspections and tests. We agree with the Krentz court that this type
of individualized, case-by-case review is inconsistent with the FRSA’s
comprehensive set of uniform safety standards.
In sum, the saving clause does not apply because the ordinance is
incompatible with the federal regulations on train speed and air brake
testing. We conclude that the Village’s ordinance is preempted by the
FRSA and is, therefore, unenforceable. Because we have concluded
that the ordinance is preempted by the FRSA, we need not consider
the Village’s argument that the trial court did not err in applying the
ordinance to the facts of this case. Accordingly, we affirm the
appellate court’s conclusion that the Village’s ordinance is preempted
by the FRSA.

III. CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
affirmed.

Affirmed.

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