I respectfully dissent from the majority opinion because I believe its decision is contrary to the logic and rationale set forth by the United States Supreme Court in its recent opinion in CSX Transp., Inc. v. Easterwood (1993), 507 U.S. -, 113 S.Ct. 1732, 123 L.Ed.2d 387.
A review of the applicable federal statutory and regulatory provisions, in light of Easterwood, leads me to conclude that appellants’ claims against appellees are pre-empted by the Federal Railroad Safety Act of 1970, as amended (“FRSA”). I would, therefore, affirm the decision of the court of appeals below.
Initially, I note that I agree with the following determinations of the majority: that Section 434 of the FRSA contains the controlling pre-emption provision in this matter, that a state common-law tort claim can be within the pre-emptive reach of Section 434, and that the Easterwood case controls our analysis. However, despite the presumption against pre-emption of subjects traditionally governed by state law, I believe that the analytical framework put forth in Easterwood requires a finding of pre-emption in this case.
In Easterwood, the court determined that FRSA does not, on its face, pre-empt state common-law tort causes of action involving the transportation of hazardous material by rail. Rather, the court held that under FRSA, if it can be shown that the relevant federal law and regulations “cover[ed] the same subject matter” of *269the state cause of action, pre-emption will lie. Easterwood, 507 U.S. at-, 113 S.Ct. at 1738, 123 L.Ed.2d at 397.
In 1970, Congress enacted FRSA:
“ * * * to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving any carrier of hazardous material.” Section 421, Title. 45, U.S. Code.
The Act required the Secretary of Transportation to prescribe appropriate rules, regulations, orders, and standards for all areas of railroad safety. Section 431, Title 45, U.S.Code. As noted above, the Act also contained the following express pre-emption provision:
“The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not an undue burden on interstate commerce.” (Emphasis added.) Section 434, Title 45, U.S.Code.
In Easterwood, the court concluded that the issue before the court was “whether the Secretary of Transportation has issued regulations covering the same subject matter as Georgia negligence law pertaining to the maintenance of, and the operation of trains at grade crossings.” Easterwood, 507 U.S. at-, 113 S.Ct. at 1738, 123 L.Ed.2d at 397. The court went on to define the phrase “covering the subject matter” to mean that “pre-emption will lie only if the federal regulations substantially subsume” the subject matter of the relevant state law. Id.
The defendant railroad in Easterwood argued that the regulations promulgated by the Secretary relating to train speed and grade crossings “cover[ed] the subject matter” of, and therefore pre-empted, the state common-law tort claims raised by the plaintiff.
As to the excessive-speed claim, the court determined that the Secretary, acting through the Federal Railroad Administration, promulgated regulations in 1971 under FRSA, setting maximum train speeds for different classes of track. The court held that the regulations at Section 213.9(a), Title 49, C.F.R. adopted by the Secretary establishing maximum allowable operating speeds for different *270classes of track, pre-empted Easterwood’s tort law claim of excessive speed. The regulations set the maximum train speed at the crossing in question at sixty miles per hour.
Although the train was being operated within the maximum allowable speed, plaintiff contended that defendant railroad nevertheless breached its common-law duty to operate its train at a moderate and safe rate of speed.
The court determined that, on their face, the federal regulations setting maximum allowable operating speeds “address only the maximum speeds at which trains are permitted to travel given the nature of the track on which they operate” (Emphasis added.) Id., 507 U.S. at -, 113 S.Ct. at 1742, 123 L.Ed.2d at 402.
In arguing against a finding of pre-emption as to her excessive-speed claim, plaintiff in Easterwood emphasized that the excessive-speed claim focused upon railroad safety as it related to the potentially hazardous conditions posed by grade crossings. Plaintiff argued that the regulations in Section 213, Title 49, C.F.R., establishing maximum allowable operating speeds for freight and passenger trains, were based on varying characteristics of the track itself (i.e., track geometry, track structure, the number and quality of crossties, etc.). Therefore, plaintiff argued that the Secretary’s maximum-speed regulations only addressed railroad safety as it related to varying characteristics of the track, and did not cover the subject matter of maximum train speeds as they “related to” safety conditions posed by grade crossings.
It was only because the state common-law tort claim (the state “requirement”) appeared to “relate to” a different aspect of railroad safety than that addressed by Section 213, that the court then found it necessary to consider “related safety regulations adopted by the Secretary.” Id., 507 U.S. at-, 113 S.Ct. at 1742, 123 L.Ed.2d at 402. By doing so, the court was able to conclude that the speed limits had been established only after taking into account the “hazards posed by track conditions,” the precise subject matter of plaintiffs excessive-speed tort claim. Id.
Thus, despite the fact that the Secretary’s maximum speed limits “related to” differing track characteristics, the court nevertheless concluded that the speed limits also “cover[ed] the subject matter of train speed with respect to * * * conditions posed by grade crossings.” Id., 507 U.S. at-, 113 S.Ct. at 1743, 123 L.Ed.2d at 403.
Applying the Easterwood analysis to the instant case leads to the proposition that appellants’ claims against appellees are pre-empted only if the Secretary has adopted regulations which “cove[r] the subject matter” of safety standards for bottom attachments to railroad tank cars engaged in the transportation of hazardous material. Examination of the Code of Federal Regulations concerning *271rail transportation of hazardous materials and, specifically, the regulation directly concerning brake attachments for railroad tank cars (Section 179.200-19, Title 49, C.F.R.) reveals that this section required that all tank cars manufactured after 1971 shall have reinforcing brake pads between the brake attachments and the tank shell.
However, Section 179.1(c) specifically exempts, or grandfathers, tank cars built prior to 1971 from this requirement. The parties do not dispute that on the date of the Miamisburg derailment, UTLX 79499 was exempted from the regulatory requirement of reinforcing brake pads.
The record clearly demonstrates that the Secretary’s tank car specifications pertaining to the transportation of hazardous materials “related to” a concern over the potential release of hazardous materials. For better or worse, the Secretary determined that tank cars manufactured prior to 1971 do not need to be retrofitted with reinforcing pads where the brake attachments meet the shell of the tank car.
Had it been demonstrated that this exemption was based on safety concerns other than the risk of the release of hazardous materials, then an Easterwood analysis might require a further inquiry into the “overall structure of the regulations” to determine whether the exemption was established after taking into account the “related” safety concern of the release of hazardous materials. However, unlike the court in Easterwood, there is no need for this court in its analysis to consider “the context of the overall structure of the regulations” in order to conclude that Section 179.1(c) was established with the safe transportation of hazardous materials by rail “already in mind.” Id., 507 U.S. at-, 113 S.Ct. at 1742-1743, 123 L.Ed.2d at 402-403.
The majority in the instant case states that:
“The mere general provision of Section 179.1(c), Title 49, C.F.R., that tanks mounted on or forming part of a tank car ‘built to specifications predating those in this part may continue in use’ is not equivalent to an affirmative specific statement that the owner or operator of a tank car built prior to 1971 is under no duty to retrofit with reinforcing pads; and is also not equivalent to the further specific statement that one who does not retrofit a pre-1971 built tank car with reinforcing pads is shielded from liability under state tort law.” '
However, if the preceding rationale had been applied by the court in Easter-wood, the result would have been that plaintiffs excessive-speed claim would not have been pre-empted by the federal regulations. In other words, that court would have found that the “mere general provision” establishing maximum speed limits for different classes of track was not “equivalent to an affirmative specific statement” that a railroad is shielded from liability under state tort law if it fails *272to reduce the train’s speed when approaching a grade crossing, where the train’s speed is already below the maximum permitted by Section 213.9(a).
Thus, if the Easterwood court had employed the present majority’s rationale, there would have been a finding of no pre-emption, as the two statements were not equivalent. To the contrary, the Easterwood court, unlike the majority in the instant case, found that there was pre-emption without a finding of “equivalence.”
Further, the Easterwood court found that “Section 434 does not * * * call for an inquiry into the Secretary’s purposes, but instead directs the courts to determine whether regulations have been adopted which, in fact, cover the subject matter of train speed.” Id., 507 U.S. at-, 113 S.Ct. at 1743, 123 L.Ed.2d at 403.
Pursuant to Section 179.1(c), Title 49, C.F.R., the Secretary has specifically authorized appellees to continue to transport hazardous materials in UTLX 79499 without being required to retrofit the tank car with reinforcement pads.8 Section 434, Title 45, U.S. Code, as applied to the instant action, permits a state such as Ohio to “adopt or continue in force” a tortious cause of action, such as the issue . before us now, but only until the Secretary has adopted a regulation “covering the subject matter” of the common-law tort cause of action.
The majority concludes that the regulation specifically authorizing UTLX 79499 to continue to transport hazardous materials without having installed reinforcing pads between the brake attachments and the tank car shell “does not specifically address, and so does not ‘substantially subsume,’ the subject matter of appellants’ tort claims.” The majority characterizes appellants’ tort claim as an allegation “that phosphorous escaped because UTLX 79499 was not equipped with a reinforcing pad where the brake attachment connected to the shell of the tank car.”
The majority, however, only grudgingly concedes that the regulation might “relate to” appellants’ tort claims. The majority finds it “likely” that Section 179.1(c) would pre-empt a state law or regulation “which required reinforcing pads on tank cars built before 1971.” The majority “draw[s] a distinction between state regulation and common-law tort claims in this circumstance.” *273However, Easterwood clearly rejects employing such a distinction for purposes of determining the pre-emptive reach of Section 434.9
Therefore, I find it difficult to reach any other conclusion but that Section 179.1(c), Title 49, C.F.R., authorizing appellees’ continued use of UTLX 79499 without a reinforcement pad retrofit, “substantially subsume[s]” or “ * * * embrace[s] in an effective scope of treatment” appellants’ tort claims alleging negligence due to the failure to retrofit UTLX 79499 with a reinforcing pad. Id., 507 U.S. at-, 113 S.Ct. at 1738, 123 L.Ed.2d at 397. The majority concludes that “[r]eliance upon the mere statement that UTLX 79499 could ‘continue in use’ is insufficient to insulate appellees from tort liability.” However, Easterwood, in effect, held that the defendant railroad’s reliance on the “mere statement” that it could operate its train through a grade crossing at speeds up to sixty miles per hour was sufficient to insulate it from tort liability.
I fail to see any distinction between the maximum-speed regulation of Easter-wood and the instant regulation explicitly authorizing UTLX 79499 to continue transporting hazardous materials without retrofitting with reinforcement pads, in terms of “covering] the subject matter” of whether defendants owed plaintiffs any additional common-law duty of care.10
I must conclude, therefore, that the manner in which the court arrived at its pre-emption determination as to the excessive-speed claim in Easterwood supports rather than contradicts the conclusion that appellants’ common-law tort claims are pre-empted under FRSA.
I, therefore, further' conclude that the distinction drawn by the majority between the rationale employed in Easterwood and the rationale employed in the instant case is illusory.
Accordingly, I would affirm the appellate court and, therefore, dissent.
Wright, J., concurs in the foregoing dissenting opinion.. Furthermore, the Secretary, through his congressionally delegated agencies, has declined to require the retrofitting of pre-1971 tank car brake attachments, determining that no further action is warranted. See, e.g., Railroad Tank Car Research and Test Project, Phase 02 Report on Analysis of Non-Pressure Tank Car Behavior in Accidents, Association of American Railroads, Report No. RA-02-4-47, March 24, 1983: “The current DOT regulations for non-pressure tank cars prescribe design rules for assuring safe breakaway of attachments [par. 179.200-19]. Based on past performance, it is concluded that these rules are adequate.”
. “Legal duties imposed on railroads by the common law fall within the scope of [Section 434’s] broad phrases.” Id., 507 U.S. at-, 113 S.Ct. at 1737, 123 L.Ed.2d at 396-397.
. If I were to analyze the Secretary’s brake-attachment exemption for pre-1971 tank cars under the less imposing “inconsistency” standard of the HMTA pre-emption provision, it is evident that a state “requirement” that UTLX 79499 be retrofitted with reinforcing pads would be “inconsistent” with a federal standard expressly authorizing continued hazardous materials service without any such retrofit. See, e.g., S. Pac. Transp. v. Pub. Serv. Comm. of Nev. (C.A.9, 1990), 909 F.2d 352; Jersey Cent. Power & Light Co. v. Lacey Twp. (C.A.3, 1985), 772 F.2d 1103, certiorari denied (1986), 475 U.S. 1013, 106 S.Ct. 1190, 89 L.Ed.2d 305; Missouri Pacific RR. Co. v. RR. Comm. of Texas (C.A.5, 1988), 850 F.2d 264, certiorari denied (1989), 488 U.S. 1009, 109 S.Ct. 794, 102 L.Ed.2d 785.