Tuesday, September 25, 2012
5th Circuit Reverses Self - Army Corps not Liable for Katrina Flood Damage
The U.S. Court of Apppeals for the Fifth Circuit in New Orleans reversed its prior ruling that the U.S. Army Corps of Engineers was liable for Katrina-related flood damage. In an opinion filed yesterday, the same three judge panel that had previously held the Corps liable for some damages, reversed itself and found immunity for the Corps under the discretionary function exception. Under this doctrine, suits that are based on a government agency's, or employee's, performance, or failure to perform, a discretionary function, are barred. The latest opinion is attached here.
Monday, September 17, 2012
Engineer Group's "Failure to Act" Report Addresses Airport, Inland Waterways, and Port Infrastructure
The American Society of Civil Engineers (ASCE) published its latest "Failure to Act" report addressing U.S. infrastructure. The lastest report is "The Economic Impact of Current Investment Trends in Airports, Inland Waterways, and Marine Ports."
Needless to say from the title of the paper, the ASCE advocates investment in infrastructure projects. Among the interesting contents of the report are various graphs and charts, including graphs of costs (by commodity) from the use of undersized vessels in shallow harbors, lost trade due to gaps in inland waterway and port investment, and the top 10 sectors to be affected by decline in waterborne trade in 2020.
This latest report is ASCE's third in the "Failure to Act" series, having previously published reports on Surface Transportation and Water and Wastewater.
Friday, September 7, 2012
FRA to Require Railroad Risk Assessments - Data to be Excluded from Litigation
Today the Federal Railroad Administration (FRA) published a proposed rule (77 FR 55372) requiring passenger railroads to implement a System Safety Program (SSP), which requires railroads to "identify and mitigate or eliminate hazards and the resulting risks on each railroad's system." Although this rule, which is authorized by section 109 of the Rail Safety Improvement Act, 49 U.S.C. 20118 - 20119, addresses only passenger railroads, a similar rule-making is apparently in process that will cover "Class I railroads and railroads with inadequate safety performance." (77 FR 55379).
To create a SSP, which is to be developed by individual railroads and submitted to the FRA for approval, railroads must identify risk-based hazards, and then create a plan to reduce or eliminate identified risks. In order to ensure railroads conduct "a robust assessment of the hazards and resulting risks on its system," the proposed rule will protect information compiled or collected solely for the purpose of the SSP "from discovery, admission into evidence, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, and property damage." (77 FR 55379).
Today's NPRM goes into significant detail regarding the reasons for excepting SSP risk analyses data for use in civil actions, and specifically cites 23 USC sec. 409, which generally excludes grade crossing safety assessments (under certain circumstances) from use in litigation as an example (the detailed discussion begins on page 55390). Not included in the statutory prohibition of evidence is material not " solely compiled or collected" for the purpose of the SSP.
With regard to the prohibition of SSP material from litigation, the FRA expanded the RSIA mandate to exclude data and analyses from civil discovery (including FOIA) and admission as evidence, to also include "consideration for other purposes." The "for other purposes" exclusion is meant to completely exclude the risk-analyses of the railroads, including any indirect use or reference such as refreshing a witnesses recollection or reliance by an expert witnesses. The FRA explained succinctly why this extra step was taken:
"The additional language, 'or considered for other purposes,' ensures that the protected information remains out of a proceeding completely. The protections would be useless if a litigant is able to use the information in the proceeding for another purpose. To encourage railroads to perform the necessary vigorous risk analysis and to implement truly effective elimination or mitigation measures, the protections should be extended to any use in a proceeding." (pg. 55391).
The effective date of the prohibition of evidence will be 1 year after the publication of the final rule, and will also apply to forthcoming risk reduction rule applicable to Class I railroads (pg. 55392).
To create a SSP, which is to be developed by individual railroads and submitted to the FRA for approval, railroads must identify risk-based hazards, and then create a plan to reduce or eliminate identified risks. In order to ensure railroads conduct "a robust assessment of the hazards and resulting risks on its system," the proposed rule will protect information compiled or collected solely for the purpose of the SSP "from discovery, admission into evidence, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, and property damage." (77 FR 55379).
Today's NPRM goes into significant detail regarding the reasons for excepting SSP risk analyses data for use in civil actions, and specifically cites 23 USC sec. 409, which generally excludes grade crossing safety assessments (under certain circumstances) from use in litigation as an example (the detailed discussion begins on page 55390). Not included in the statutory prohibition of evidence is material not " solely compiled or collected" for the purpose of the SSP.
With regard to the prohibition of SSP material from litigation, the FRA expanded the RSIA mandate to exclude data and analyses from civil discovery (including FOIA) and admission as evidence, to also include "consideration for other purposes." The "for other purposes" exclusion is meant to completely exclude the risk-analyses of the railroads, including any indirect use or reference such as refreshing a witnesses recollection or reliance by an expert witnesses. The FRA explained succinctly why this extra step was taken:
"The additional language, 'or considered for other purposes,' ensures that the protected information remains out of a proceeding completely. The protections would be useless if a litigant is able to use the information in the proceeding for another purpose. To encourage railroads to perform the necessary vigorous risk analysis and to implement truly effective elimination or mitigation measures, the protections should be extended to any use in a proceeding." (pg. 55391).
The effective date of the prohibition of evidence will be 1 year after the publication of the final rule, and will also apply to forthcoming risk reduction rule applicable to Class I railroads (pg. 55392).
Friday, August 31, 2012
Senators Request GAO Review of RR Safety
On August 28, 2012 three U.S. Senators requested the Government Accountability Office (GAO) conduct a "comprehensive evaluation of the state of the country's railroad safety programs and policies."
The request was made by three Democratic Senators, Rockefeller (D-W.Va.), Durbin (D-IL), and Lautenberg (D-NJ). Prompting this requested review was the recent derailment in Ellicott City, MD, the derailment and fire following an ethanol train derailment in Ohio, and a coal train derailment and bridge collapse near Chicago in July.
The Senators specfically requested that the review address how railroads and the Federal Railroad Administration (FRA) evaluate risk factors for rail safety in the allocation of inspection and safety resources.
The request was made by three Democratic Senators, Rockefeller (D-W.Va.), Durbin (D-IL), and Lautenberg (D-NJ). Prompting this requested review was the recent derailment in Ellicott City, MD, the derailment and fire following an ethanol train derailment in Ohio, and a coal train derailment and bridge collapse near Chicago in July.
The Senators specfically requested that the review address how railroads and the Federal Railroad Administration (FRA) evaluate risk factors for rail safety in the allocation of inspection and safety resources.
Thursday, August 23, 2012
Keystone Pipeline Granted Common Carrier Status - Eminent Domain For Right of Way Allowed
A state court judge in Lamar Co. TX has ruled in favor of Canadian corporation TransCanada, finding that it has eminent domain rights across farmland as a common carrier. Here is the Washington Post's story on the ruling, and here is the AP's report via the Dallas Morning New's website.
The decision was prompted by litigation by local landowners who argued TransCanada's proposed pipeline was a private venture,and not a common carrier, which can access rights of way by eminent domain.
According to the news reports, the Court's decision was conveyed to counsel via email; it is unclear if any opinion has been issued.
The decision was prompted by litigation by local landowners who argued TransCanada's proposed pipeline was a private venture,and not a common carrier, which can access rights of way by eminent domain.
According to the news reports, the Court's decision was conveyed to counsel via email; it is unclear if any opinion has been issued.
Wednesday, August 1, 2012
More OSHA Whistleblower News - RRs Fined - Trucking Rules Published
OSHA has announced three FRSA "whistleblower" awards to railroad employees. As explained in the OSHA press release, over $650,000 was awarded to three separate employees, with each case including a punitive damages award by the DOL.
Also in Whistleblower news, OHSA has published its Final Rule governing the handling of retaliation complaints made under the Surface Transportation Assistance Act of 1982 (STAA). The STAA, as amended, covers commercial motor vehicle safety and security. The Final Rule is attached here. Among other things, the rule provides that a violation of the whistleblower protections in the Act may be found if the protected activity was a "contributing factor" to the adverse action alleged. For the defending party, relief is to be denied if it is shown by clear and convincing evidence that it would have taken the same adverse action in absence of the protected activity. In other words, the adverse action (i.e. discipline or termination for example) was not a result of the whistleblowing, as it were. The remainder of the final rule generally brings STAA actions in line with other whistleblower statutes and procedures enforced by OSHA.
Also in Whistleblower news, OHSA has published its Final Rule governing the handling of retaliation complaints made under the Surface Transportation Assistance Act of 1982 (STAA). The STAA, as amended, covers commercial motor vehicle safety and security. The Final Rule is attached here. Among other things, the rule provides that a violation of the whistleblower protections in the Act may be found if the protected activity was a "contributing factor" to the adverse action alleged. For the defending party, relief is to be denied if it is shown by clear and convincing evidence that it would have taken the same adverse action in absence of the protected activity. In other words, the adverse action (i.e. discipline or termination for example) was not a result of the whistleblowing, as it were. The remainder of the final rule generally brings STAA actions in line with other whistleblower statutes and procedures enforced by OSHA.
Monday, July 30, 2012
USDOT Fines Travelocity over Fee Disclosure
Last week the USDOT announced it had fined online travel-site Travelocity for violating rules on full-fare disclosure. Travelocity was fined $180,000.00.
A investigation by DOT's Aviation Enforcement Office found that potential customers booking international flights did not see all surcharges and other fees until an itinerary was selected, where the full fare was then disclosed. The rationale for the fine was the consumers may have selected certain routes on the basis of price, for which the full price was not actually disclosed, and therefore may have prevented them for selecting other options based on price.
In a somewhat related action, the same enforcement office also fined air carrier World Atlantic Airlines for failing to provide previously booked flights after charter operator Direct Air missed payments to the carrier and later ceased operations. Here is the World Atlantic announcement, which also resulted in a $180,000.00 fine.
A $180,000 fine seems very steep for a carrier that did not complete flights for which it had contracted, but had not been paid by the charter operator. I certainly have sympathy for charter passengers left high and dry when a charter operator ceases operations, which happened here, but basically the air carrier was fined $180K for requiring payment before flying, which is against DOT rules. DOT rules also prevent charter flights from being canceled less than 10 days before the scheduled departure.
A investigation by DOT's Aviation Enforcement Office found that potential customers booking international flights did not see all surcharges and other fees until an itinerary was selected, where the full fare was then disclosed. The rationale for the fine was the consumers may have selected certain routes on the basis of price, for which the full price was not actually disclosed, and therefore may have prevented them for selecting other options based on price.
In a somewhat related action, the same enforcement office also fined air carrier World Atlantic Airlines for failing to provide previously booked flights after charter operator Direct Air missed payments to the carrier and later ceased operations. Here is the World Atlantic announcement, which also resulted in a $180,000.00 fine.
A $180,000 fine seems very steep for a carrier that did not complete flights for which it had contracted, but had not been paid by the charter operator. I certainly have sympathy for charter passengers left high and dry when a charter operator ceases operations, which happened here, but basically the air carrier was fined $180K for requiring payment before flying, which is against DOT rules. DOT rules also prevent charter flights from being canceled less than 10 days before the scheduled departure.
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