Sixth Circuit Denies Medical Monitoring and Fear of Cancer Claims

Looks like it is Circuit Court week here at TLT.

Today, the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, upheld the grant of summary judgment to CSX Transportation, Inc. in an action brought by local residents following the October 2007 derailment and fire near Painesville, Ohio. Liability was not an issue. Rather the questions before the Court were causation and injury, and under Federal Rule of Civil Procedure 56, whether there was sufficient evidence to create a genuine issue of material fact for a jury to consider.

The residents suing the railroad did not have current injuries, but sued for medical monitoring expenses and an increased risk of future cancer. After summary judgment was granted by the District Court, the Sixth Circuit affirmed, reasoning that expert testimony supporting plaintiffs' claims of increased risk of cancer was speculative, and bordered on "legal insignificance."

A copy of the Opinion is attached here.

Is Competition in Passenger Rail Coming?

The Federal Railroad Administration (FRA) published a proposed rule today establishing a pilot program under which railroads that own the infrastructure over which Amtrak operates may bid to provide passenger service. The routes open for bid are "under-performing" Amtrak routes. The proposed rule is mandated by the Passenger Rail Investment and Improvement Act of 2008.

The pilot program proposed in the rule limits the number of intercity routes that may be awarded to carriers other than Amtrak to no more than two existing Amtrak routes. A carrier winning a bid to operate service previously provided by Amtrak, would be entitled an operating subsidy up to the level Amtrak had received for the route, conditioned upon meeting certain performance standards. Amtrak would be required to provide a winning bidder access to its reservation system, stations, and "facilities directly related to operations." The bid process also allows Amtrak to submit its own bid to retain the service over the route that another carrier petitions to operate.

Comments on the proposed rule are to be submitted to the FRA by November 7, 2011.

It remains to be seen if there are any takers for operating passenger service on routes which have been "under-performing" for Amtrak, even with equivalent operating subsidies.

Seventh Circuit Vacates Electronic Recording Rule for Trucks

The U.S. Court of Appeals for the Seventh Circuit, based in Chicago, vacated the final rule of the Federal Motor Carrier Safety Adminstration (FMCSA) approving the use of electronic on board recorders (EOBRs)on some trucks. In an Opinion issued recently the federal appellate Court ruled that FMCSA's rule was "arbitrary and capricious" because the Agency failed to consider a regulatory requirement that the use of monitoring devices for hours of service violations not be "used to harass vehicle operators."

The Seventh Circuit's action represents the latest challenge to FMCSA revisions to hours of service (HOS) regulations, which have been successfully challenged in the past. In 2003 the U.S. Court of Appeals for the D.C. Circuit also ruled the Agency's HOS rules were arbitary for its failure to consider the impact of the rules on the health of drivers. Public Citizen v. FMSCA, 374 F.3d 1209 (D.C. Cir. 2004). Again, in 2007 the D.C. Circuit struck down the Agency's latest attempt to revise the HOS regulations for not allowing meaningful comment on driver-fatigue model used nor explaining why the model was adoped. OOIDA v. FMSCA, 494 F.3d 188 (D.C. Cir. 2007).

This most recent challenge to the HOS rules was brought by the Owner-Operator Independent Drivers Association, Inc. (OOIDA).

FRA Proposed Rule on Postive Train Control Announced as Regulatory Reform

The Federal Railroad Administration published a proposed rule today eliminating the need for railroads to conduct risk analysis for certain tracks that will not have Positive Train Control (PTC). Positive Train Control, an automated system to prevent train collisions, was mandated by the 2008 Rail Safety Improvement Act (RSIA) following several high-profile accidents. The PTC rule published in 2010 generally required PTC on tracks carrying PIH (poison by inhalation) traffic and inter-city passenger traffic. Under the original process, railroads could avoid installing PTC on certain tracks if risk analyses were performed.

The proposed revision to the PTC rule eliminates the requirement that risk a analysis be performed on track that will not carry PIH traffic or regular passenger service as of December 31, 2015.

An interesting side note to the issuance of the proposed revision is that the revised rule appears to be both the product of both a legal challenge to the PTC rule by the Association of American Railroads (AAR), and the Administration-mandated regulatory review. The AAR challenged the original regulation's risk analysis test and baseline assumptions made by the FRA. According the USDOT's press release, the newly proposed rule is part of the Administration's efforts to provide "regulatory releif." Today's NPRM, however, is also the result of a settlement agreement between the FRA and AAR over the challenged regulation. The comment period on the NPRM is open until October 24, 2011.

Appeals Court Rules Requires Only Possibility of Absestos Exposure to Fine Employer

Today we venture from Transportation for an interesting ruling in an asbestos case, a long-standing source of litigation in the Transport industry, and many others.

The U.S. Court of Appeals for the Third Circuit, based in Philadelphia, recently ruled that an employer can be penalized under OSHA asbestos removal rules without having to show any actual exposure to the substance. The Court's opinion, in Secretary of Labor v. Conoco Phillips Bayway Refinery, case no. 10-2893, held that the Secretary of Labor "must simply demonstrate the possibility" of exposure to harmful levels of asbestos. The presumption of "harm" is based on the conclusion that violation of Class II asbestos requirements alone "expose employees to substantial amounts of asbestos."

An interesting procedural note on this case was that the Third Circuit was resolving different interpretations of USDOL regulations among "two factions of the same government agency." The Secretary of Labor petitioned the Court for a review of the Occupational Safety and Helath Review Commission's decision that the violations were "not serious" as opposed to "serious" as the Secretary originally determined.

Norfolk Southern To Build New Rail Line to Port of Toledo

Norfolk Southern Railway Corp., according to development officials, will begin new rail service to the Port of Toledo, OH. According to the media report attached here, the Toledo-Lucas County Port Authority states the goal is to make the Port of Toledo the largest land port on the Great Lakes and relieve shipping back-logs in Detroit and Chicago. Here is a link the Toledo-Lucas County Port Authority.

CSX Announces $15 Million Investment for Louisville Intermodal Terminal

CSX Transportation, Inc. recently announced the construction of a $15 million privately-funded intermodal freight terminal in Louisville, KY. The terminal is expected to be operational in early 2012. The new facility will be constructed between CSXT's existing Osborne Yard and the Louisville Industrial Center near the Louisville International Airport.