MFA Enterprises, Inc., doing business as West Central Agri Services v. Occupational Safety and Health Review Commission; Secretary of Labor

United States Court of Appeals
For the Eighth Circuit
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No. 24-3107
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MFA Enterprises, Inc., doing business as West Central Agri Services
Petitioner
v.
Occupational Safety and Health Review Commission; Secretary of Labor
Respondents
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Petition for Review of an Order of the
Occupational Safety & Health Review Commission
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Submitted: June 12, 2025
Filed: August 28, 2025
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Before LOKEN, ERICKSON, and KOBES, Circuit Judges.
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ERICKSON, Circuit Judge.
The Secretary of Labor cited MFA Enterprises, Inc., doing business as West
Central Agri Services, (“West Central”) for a willful and serious violation of 29
C.F.R. § 1910.132(d)(1)(i) for failing to ensure employees wore personal protective
equipment (“PPE”) while working on top of railcars. After a three-day evidentiary
hearing, the Occupational Safety and Health Review Commission’s administrative
law judge (“ALJ”) upheld the citation. The Commission denied discretionary review

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of the ALJ’s decision, and West Central now petitions for our review. Concluding
the Federal Railroad Administration (“FRA”) preempts the jurisdiction of the
Occupational Safety and Health Administration (“OSHA”), we vacate the citation
and reverse the ALJ’s order.
I. BACKGROUND
West Central operates a grain handling facility in Adrian, Missouri. It ships
grain from this facility via the railroad and fills the railcars through a “railcar
loadout” process. As part of railcar loadout, an employee must access the top of
each railcar, which is approximately fifteen feet off the ground. The employee then
opens each of the lids on the railcar roof to allow a spout to transfer the grain from
storage bins into the railcar through each opening.
A Trackmobile pushes the railcars along the track into position under the grain
spouts after an employee opens the lids. After the railcars are filled, the Trackmobile
pushes them out of the grain filling station, and then an employee closes and seals
the lids.
On December 31, 2020, an OSHA inspector travelled to the facility to
investigate an explosion. As part of the investigation, the inspector viewed a
recording that included footage of an employee not wearing fall protection PPE
while he worked on top of a railcar. The inspector’s subsequent interviews revealed
that employees frequently did not wear fall protection PPE while working on top of
railcars, and, while supervisors were aware of this activity, employees were not
disciplined.
Since 2016, West Central had a fall protection system in place for the railcar
loadout process. It consisted of a trolley on suspended I-beams that ran overhead
and parallel to each of the railroad tracks. An employee would connect to the trolley
through a harness and a self-retracting lifeline. At some point prior to December

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2020, West Central removed the fall protection system on the east track, but it was
still in place on the west track.
Employees did not like to use the fall protection system because the harness
was uncomfortable, the system prevented them from reaching all the lids, and
occasionally the trolley became sticky and would not glide on the I-beams. Despite
these problems with the system, West Central’s safety training for its employees
included the following instruction: “If there is railcar fall protection present, you
must use it every time.”
While there was no written hazard assessment of the dangers of a fall during
railcar loadout, the ALJ found West Central acknowledged that working on top of
rail cars presented a fall hazard based on the existence of the fall protection system,
testimony from an MFA Incorporated safety director, and the safety training. The
ALJ’s Decision and Order upheld the citation of a willful and serious violation and
imposed a penalty of $122,878.80.
II. DISCUSSION
We will uphold the factual findings in a Commission order if they are
“supported by substantial evidence on the record considered as a whole.” Perez v.
Loren Cook Co., 803 F.3d 935, 938 (8th Cir. 2015) (en banc) (quoting Solis v.
Summit Contractors, Inc., 558 F.3d 815, 823 (8th Cir. 2009)). We will uphold the
Commission’s legal conclusions “unless they are arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id. (quoting Solis, 558 F.3d at
823).
West Central asserts that OSHA’s application of § 1910.132(d)(1)(i) to
employees working on top of railcars is preempted by the FRA.1 The preemption
1 OSHA claims that West Central waived preemption on appeal because it did
not identify preemption in its Statement of Issues in its opening brief. West Central
discusses preemption at pages 7 through 11 and page 17 of its opening brief, which

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provision in the Occupational Safety and Health Act provides: “[n]othing in this
chapter shall apply to working conditions of employees with respect to which other
Federal agencies, and State agencies acting under section 2021 of Title 42, exercise
statutory authority to prescribe or enforce standards or regulations affecting
occupational safety or health.” § 653(b)(1). Under this provision, 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. Chao v.
Mallard Bay Drilling, Inc., 534 U.S. 235, 241-42 (2002). The federal agency’s
standards do not have to be “the same or substantially the same as those of OSHA”
to divest OSHA of jurisdiction under § 653(b)(1). U.S. Air, Inc., 689 F.2d at 1193.
The term “working conditions” means “the environmental area in which an
employee customarily goes about his daily tasks.” S. Ry. Co. v. OSHRC, 539 F.2d
335, 339 (4th Cir. 1976). When another federal agency has set standards for the
environmental area where the employee customarily works, OSHA’s jurisdiction is
preempted. U.S. Air, Inc., 689 F.2d at 1193. Thus, the Federal Aviation
Administration’s security protocols for passenger lounges preempted OSHA’s
regulations on exit doors. Id. at 1194; see also Columbia Gas of Pa., Inc. v. Marshall,
636 F.2d 913, 914, 917 (3d Cir. 1980) (the Department of Transportation’s
regulation of pipeline trenches preempted OSHA’s regulations on atmospheric
testing).
The OSHA regulation at issue in this case states that an employer must
“[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.”
§ 1910.132(d)(1)(i). The plain language of this regulation does not address working
means it raised the issue on appeal. Cf. SD Voice v. Noem, 60 F.4th 1071, 1077 n.3
(8th Cir. 2023) (a party who fails to raise an argument in his opening brief waives
that argument). Regardless, preemption under 29 U.S.C. § 653(b)(1) is jurisdictional
and may be raised sua sponte by the court. U.S. Air, Inc. v. OSHRC, 689 F.2d 1191,
1193 (4th Cir. 1982).

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on top of railcars. This broad and general provision requires looking elsewhere to
determine whether it applies to these working conditions. See Wal-Mart Distrib.
Ctr. # 6016 v. OSHRC, 819 F.3d 200, 203-04 (5th Cir. 2016) (reviewing additional
OSHA provisions to resolve an ambiguity in § 1910.132(d)(1)).
In 1996, John B. Miles, Jr., then-Director of OSHA’s Directorate of
Enforcement Programs, issued an interpretation letter (the “Miles Memorandum”)
to the Regional Administrators. John B. Miles, Jr., Enforcement of Fall Protection
on Moving Stock, http://www.osha.gov/laws-regs/standardinterpretations/1996-10-
18. The Miles Memorandum included an interpretation of when § 1910.132(d)
applies to working on top of railcars, which stated the following:
Additionally, it would not be appropriate to use the personal protection
equipment standard, 29 CFR 1910.132(d), to cite exposure to fall
hazards from the tops of rolling stock, 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. In
such cases, fall protection systems often can be and, in fact, are used in
many facilities in the industry.
Id. The ALJ relied on this interpretative statement to uphold the citation under
§ 1910.132(d)(1)(i).
Next, we must determine whether the FRA has set standards for working on
top of railcars. In 1978, the FRA issued a policy statement identifying the working
conditions with respect to which the FRA was presently exercising its authority
(“FRA Policy Statement”). Railroad Occupational Safety and Health Standards;
Termination, 43 Fed. Reg. 10,583, 10,585 (Mar. 14, 1978). If the FRA Policy
Statement covers the applicable working conditions, it preempts OSHA’s
jurisdiction. Velasquez v. S. Pac. Transp. Co., 734 F.2d 216, 218 (5th Cir. 1984);
see Consol. Rail Corp., Nos. 91-3133 & 91-3134, 1993 WL 119665, at *1 (OSHRC
Mar. 31, 1993) (the Commission recognizes the preemptive effect of the FRA Policy
Statement).

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The FRA asserted its authority over working conditions unique to railroad
operations. 43 Fed. Reg. at 10,586. This included the protection of employees
working around railcars. Id. (“rules pertaining to the protection of employees
working between or under rolling equipment, operations within yard limits . . . .”).
The FRA also asserted its authority over walking-working surfaces. Id. at 10,587.
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.” Id. The FRA acknowledged the application of
OSHA regulations to walking-working surfaces for areas other than railcars such as
in offices, shops, and other fixed workplaces. Id. Through the FRA Policy
Statement, the FRA has asserted its authority over employees working around
railcars and over the walking-working surfaces on railcars. Id. at 10,586-87.
The FRA asserted its authority over the environmental area of railcars. By
asserting its authority over these working conditions, the FRA has preempted
OSHA’s jurisdiction over employees working on top of railcars. See U.S. Air, Inc.,
689 F.2d at 1194 (agency’s security protocols over passenger lounges preempted
OSHA’s exit door regulations); Columbia Gas of Pa., Inc., 636 F.2d at 917 (agency’s
regulations on pipeline trenches preempted OSHA’s atmospheric testing
regulations). OSHA’s attempt to assert jurisdiction over these same working
conditions through the Miles Memorandum is invalid.
The ALJ incorrectly found no preemption by failing to analyze the relevant
working conditions. See U.S. Air, Inc., 689 F.2d at 1193 (preemption occurs when
the other federal agency has standards covering the working conditions). Instead,
the ALJ found no preemption because the FRA Policy Statement does not mention
PPE. As support for its conclusion, the ALJ relied on unrelated Commission cases
regarding PPE use in repair shops, which is an environmental area the FRA left
mostly to OSHA. Cf. 43 Fed. Reg. at 10,587 (“OSHA regulations on guarding of
open pits, ditches, etc. would not apply to inspection pits in locomotive or car repair

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facilities.”). The ALJ failed to act in accordance with the law when it found no
preemption.
Because the ALJ’s legal conclusion on preemption was not in accordance with
the law, we cannot uphold the decision. Perez, 803 F.3d at 938. The FRA preempts
OSHA’s jurisdiction over working conditions on top of railcars.
III. CONCLUSION
The citation for violation of 29 C.F.R. § 1910.132(d)(1)(i) is vacated, and the
ALJ’s decision is reversed.
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