dissenting:
I respectfully dissent because, in my opinion, under the facts of this case, the Federal Railroad Administration (Railroad Administration) has preempted the application of the Federal Occupational Safety and Health Administration (OSHA) “fall-protection” regulations.
As the majority correctly notes, the Railroad Administration is the primary agency responsible for regulating the railroad industry. Congress enacted the Federal Railroad Safety Act of 1970 (45 U.S.C. §421 et seq. (1970)) for the purpose of providing “comprehensive and uniform safety regulations in all areas of railroad operations.” (Chicago Transit Authority v. Flohr (7th Cir. 1977), 570 F.2d 1305, 1308.) Under that act, the Railroad Administration is expressly given the authority and responsibility to prescribe all rules, regulations and standards necessary for promoting safety in all areas of railroad operations. 45 U.S.C. §431 (1970).
The “fall-protection” regulations at issue here were enacted by OSHA. It is undisputed that OSHA is not the agency primarily responsible for regulating safety concerns within the railroad industry. Instead, OSHA, pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. §651 et seq. (1970)), has general authority to regulate working conditions that affect the occupational safety and health of employees in general, regardless of the industry in which they are employed. Thus, under the Federal regulatory scheme established by Congress, OSHA has generic authority to promulgate safety standards for industries affecting interstate commerce while the Railroad Administration has specific authority to promulgate safety standards for the railroad industry.
Obviously, this scheme created the potential for dual regulation by both the Railroad Administration and OSHA with respect to health and safety concerns in the railroad industry. Congress expressly acknowledged this potential problem and made provisions to avoid such overlapping regulation. Section 4(b)(1) of the Occupational Safety and Health Act states that its terms will not apply to working conditions as to which another Federal agency “exercise[s] statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.” (29 U.S.C. §653(b)(1) (1988).) Thus, by the very terms of the Occupational Safety and Health Act, OSHA regulations such as the “fall-protection” regulations at issue here are preempted when another Federal agency, such as the Railroad Administration, exercises statutory authority over a particular working condition.
In 1978, the Railroad Administration issued a policy statement in which it clearly and unequivocally stated its intent to exercise its statutory authority over “the safety of railroad operations.” (43 Fed. Reg. 10589 (1978).) In that statement, the Railroad Administration thoroughly condemned “piecemeal regulation of individual hazards in [railroad operations] by any other agency of government,” calling such a practice “disruptive and contrary to the public interest.” 43 Fed. Reg. 10586 (1978).
To avoid such piecemeal regulation, the Railroad Administration’s policy statement specifically indicated over which railroad working conditions it was exercising its authority and thereby displacing any OSHA regulations that might otherwise apply. Among those aspects of the railroad industry over which the Railroad Administration asserted its authority was the precise working condition at issue in this case, that is, working conditions on railroad bridges. The 1978 policy statement provided, inter alia, that “OSHA regulations would not apply to ladders, platforms and other surfaces on *** railroad bridges.” (43 Fed. Reg. 10587 (1978).) The Railroad Administration stated that it was asserting exclusive jurisdiction over this aspect of the industry because “[tjhese are areas which are so much a part of the operating environment that they must be regulated by the agency with primary responsibility for railroad safety.” 43 Fed. Reg. 10587 (1978).
The majority concedes that this policy statement was sufficient to preempt OSHA’s jurisdiction over some aspects of the railroad industry. (151 Ill. 2d at 332.) However, the majority concludes that the policy statement is “ambiguous” as to whether the OSHA “fall-protection” regulations are displaced. In my view, the majority ignores the clear language of the policy statement.
At the core of the majority’s finding of ambiguity is the fact that the “fall-protection” regulations are included as part of OSHA’s “construction industry regulations.” The majority notes that the 1978 policy statement separately addressed the applicability of the OSHA “construction industry regulations,” stating:
“ ‘To the extent that hazardous construction working conditions do not fall within [the Railroad Administration’s] exercise of authority relating to the safety of railroad operations, the OSHA standards apply according to their terms in the railroad industry.’ ” (151 Ill. 2d at 330, quoting 43 Fed. Reg. 10589 (1978).)
The majority determines that this section makes the 1978 policy statement ambiguous because “it is not clear which ‘hazardous construction working conditions’ are within the Railroad Administration’s exercise of exclusive authority.” (151 Ill. 2d at 330-31.) I believe that the majority’s conclusion that the 1978 policy statement is ambiguous is patently erroneous.
The 1978 policy statement clearly mandates that OSHA’s “construction industry regulations” apply to a particular working condition in the railroad industry only if the Railroad Administration has not exercised its authority over that condition. In this case, the Railroad Administration has in fact exercised its exclusive authority over the hazardous working condition at issue. The 1978 policy statement clearly states that the Railroad Administration is exercising its authority, to the exclusion of OSHA, over working conditions on railroad bridges. Thus, working conditions on railroad bridges clearly constitute a “hazardous construction working condition” over which the Railroad Administration has exercised its authority and displaced the authority of OSHA. The OSHA “construction industry regulations,” including the “fall-protection” regulations, are therefore inapplicable to working conditions on railroad bridges. There is no ambiguity on this point; the policy statement specifically preempts OSHA from regulating work on railroad bridges.
Because the policy statement unambiguously places the regulation of safety and health concerns of workers on railroad bridges exclusively within the province of the Railroad Administration, it must be applied according to its terms. There is no justification for looking to outside sources to discern the meaning of an unambiguous statement. (2A N. Singer, Sutherland on Statutory Construetion §46.04 (5th ed. 1992).) The majority ignores this principle and looks to extrinsic sources to “interpret” the 1978 policy statement. Moreover, the outside source upon which the majority ultimately relies is not persuasive. The majority seeks to discern the intent behind the 1978 statement by looking to language contained in the preamble to a “notice of proposed rulemaking” issued by the Railroad Administration in 1991. Initially, I must seriously question the usefulness of an “interpretation” that is issued 13 years after the document it purports to interpret. (See Colt Industries, Inc. v. United States (D.C. Cir. 1989), 880 F.2d 1311, 1313.) An administrative interpretation is not entitled to controlling weight when the interpretation is not relatively contemporaneous with the statement being interpreted. (2B N. Singer, Sutherland on Statutory Construction §49.08 (5th ed. 1992); see also Drew v. Lawrimore (D.C.S.C. 1966), 257 F. Supp. 659, 669-70.) I agree with the defendant that the Railroad Administration’s 1991 “interpretation” constitutes nothing more than an attempt to retroactively revise their prior statement. Such “retroactive history” is worthy of little or no weight. (See Colt Industries, 880 F.2d at 1313 (subsequent legislative history is entitled to little weight).) Moreover, I would point out that the 1991 “interpretation” was issued over seven years after the plaintiff’s accident and over one year after the trial in this cause was completed.
Even more importantly, the 1991 “interpretation” is contrary to the clear mandate of the Railroad Administration’s 1978 policy statement regarding OSHA’s authority over railroad bridges. The plain language of the 1978 statement preempts OSHA’s jurisdiction over working conditions on railroad bridges. The 1991 “interpretation” is in direct contravention of that mandate. As the majority notes, an administrative interpretation of a regulation is not controlling where it is inconsistent with the plain language of the regulation itself. (151 Ill. 2d at 332.) Thus, the 1991 “interpretation” of the 1978 policy statement is both untimely and directly contradicted by the plain language of the statement itself. Such an “interpretation” should not be accorded any significance by this court.
In addition to being in violation of basic rules of construction, the majority’s holding is in error because it creates the exact problem the Railroad Administration sought to avoid when it issued the 1978 policy statement, namely, overlapping regulation of the same occupational hazard by two governmental agencies. That this is the result is easily illustrated. According to the majority, the 1978 policy statement did preempt OSHA’s “walking-working surfaces” regulations, but did not preempt OSHA’s “fall-protection” regulations. It is quite evident, however, that these two sets of regulations are aimed at the same occupational hazard.
OSHA’s “walking-working surfaces” regulations require the use of railings, toeboards and holecovers over and around floor openings. According to the majority, then, the Railroad Administration has the sole authority to determine whether these safety devices are needed on railroad bridges. OSHA’s “fall-protection” regulations require, for workplaces situated more than 25 feet above the ground, the use of safety nets or other devices intended to prevent workers from falling. The majority thus concludes that the Railroad Administration does not have the sole authority to determine whether these safety devices are needed on railroad bridges. Rather, OSHA has the authority to determine the necessity of such safety devices.
It cannot be disputed that railings, toeboards and holecovers over and around floor openings, and safety nets underneath a floor opening, are aimed at protecting workers from the same hazard, namely, that of falling. Thus, according to the majority, the Railroad Administration intended that the same working hazard be regulated by two separate agencies, OSHA and the Railroad Administration. This result directly conflicts with the Railroad Administration’s express condemnation of “piecemeal regulation of individual hazards” by more than one governmental agency. (43 Fed. Reg. 10586 (1978).) This result is also illogical. There is no rational reason for the Railroad Administration to distinguish between the “walking-working surfaces” regulations and the “fall-protection” regulations, as they pertain to railroad bridges. To say that the Railroad Administration believed that the use of railings and holecovers on railroad bridges was “so much a part of the [railroad] operating environment” (43 Fed. Reg. 10587 (1978)) that they must be regulated by the Railroad Administration, but that the use of safety nets on railroad bridges is not, is absurd. Clearly, the Railroad Administration did not intend such an illogical result. The majority’s decision, however, results in just that — piecemeal regulation of a single hazard by two separate agencies.
The majority’s decision is also in conflict with clear Federal precedent on this precise issue. Velasquez v. Southern Pacific Transportation Co. (5th Cir. 1984), 734 F.2d 216, is materially indistinguishable from the instant case. In Velasquez, the plaintiff, a railroad worker participating in repair work on a railroad bridge, fell through an opening in the bridge which the workers had created so that they could reach the area underneath the track. The plaintiff filed an action under FELA against his railroad-employer. At trial, the plaintiff’s expert was allowed to testify that OSHA regulations applied to the defendant railroad and that, under OSHA, rope barricades and toeboards around the opening would have been appropriate. The judgment entered in the plaintiff’s favor was subsequently reversed by the Fifth Circuit Court of Appeals, which held that the reference to the OSHA regulations was reversible error. Velasquez, 734 F.2d at 218.
The Velasquez court determined that the admission of the OSHA regulations was improper because the Railroad Administration specifically preempted those regulations in the 1978 policy statement. The Court of Appeals noted that the policy statement clearly provided that OSHA regulations would not apply to railroad bridges. The court determined that the Railroad Administration’s assertion of jurisdiction over railroad bridges in the 1978 statement clearly preempted and displaced both the OSHA regulations requiring rope barricades and toe-boards, and the OSHA “construction regulations.” (Velasquez, 734 F.2d at 218.) Thus, Velasquez is clear precedent for the proposition that the OSHA “fall-protection” regulations were displaced by the 1978 policy statement. This court, when addressing a federally created cause of action, such as FELA, should accord, if not controlling weight, at least great deference to the decisions of lower Federal courts. See Bowman v. Illinois Central R.R. Co. (1957), 11 Ill. 2d 186,199-200.
I disagree with the majority’s attempt to distinguish Velasquez. First, the majority asserts that Velasquez is distinguishable because the plaintiff in that case introduced only evidence of OSHA’s “walking-working surface” regulations and not the “fall-protection” regulations at issue in this case. (151 Ill. 2d at 333-34.) However, this distinction is without merit because the Velasquez court specifically held that OSHA’s “construction regulations” were preempted by the 1978 policy statement. (Velasquez, 734 F.2d at 218.) Moreover, as I discussed previously, no reasoned basis for distinguishing between the “walking-working surface” regulations and the “fall-protection” regulations can be advanced in this case.
The majority also attempts to distinguish Velasquez on the ground that that court did not have the “benefit” of the Railroad Administration’s 1991 “interpretation” of the 1978 statement. (151 Ill. 2d at 334.) As noted, that “interpretation” is entitled to little or no weight because it conflicts with the express terms of the statement which it purports to interpret. Thus, neither of the arguments proffered by the majority provide a legitimate basis for distinguishing Velasquez.
In conclusion, I believe that the interpretation of the 1978 Railroad Administration policy statement applied by the majority is clearly erroneous. I would uphold the judgment of the appellate court holding that the 1978 statement preempted the OSHA “fall-protection” regulations in this case and that the admission of those regulations at trial constituted reversible error. For these reasons, I dissent.
JUSTICE HEIPLE joins in this dissent.