“Our decision today should not be interpreted as a comment on the wisdom or policy merits of EPA’s Transport Rule.  It is not our job to set environmental policy.  Our limited but important  role is to independently ensure that the agency stays within the boundaries Congress has set.  EPA did not do so here.”  EME Homer City Generation, L.P v. E.P.A., ---F.3d --- (2012).  

On August 21, 2012, the United States Court of Appeals for the District of Columbia Circuit ruled in Homer City that the United States Environmental Protection Agency (“EPA”) overstepped its bounds when it promulgated the controversial Transport Rule.  The Transport Rule, a/k/a the Cross-State Air Pollution Rule, was enacted for the EPA to implement the statutory “good neighbor” provision of the Clean Air Act (“CAA”).  The Rule was proposed in August 2010, and finalized in August 2011 at 76 Fed.Reg. 48,208 (August 8, 2011).  The Rule defines emissions reduction responsibilities for 28 upwind States based on those States’ contributions to downwind States’ air quality problems.  

To completely understand the decision in Homer City, it is important to understand the “why” behind EPA’s promulgation of the Transport Rule.  Under the CAA, the EPA sets National Ambient Air Quality Standards (“NAAQS”), which outline the maximum permissible levels of common pollutants in the ambient air.  The EPA uses this information to designate “nonattainment” areas in the States.  After this is done, each State is responsible for implementing the NAAQS in their State through State Implementation Plans (“SIPs”). The SIPs must include provisions to address the “good neighbor” provision, i.e., how is each State going to protect its down-wind neighbors from pollutants which may contribute significantly to the downwind States’ nonattainment areas.  The EPA can reject a State’s SIP, or find that a State has failed to submit a SIP and issue a Federal Implementation Plan to implement the NAAQS within a State.  The “good neighbor” provision has been before the D.C. Circuit before.  Notably, this issue was addressed in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), when the EPA’s 2005 Clean Air Interstate Rule (“CAIR”) was challenged.  In North Carolina, the Court emphasized that States should only be required to eliminate their own significant contribution to downwind pollution, and should not be required to share the burden of reducing other upwind States’ emissions.  In North Carolina, CAIR was remanded, but left in place pending the development of a valid replacement.  The EPA promulgated the Transport Rule as its replacement for CAIR.
                                                                                                                  
The Transport Rule 1) defines each State’s emissions reduction obligations under the “good neighbor” provision; and, 2) prescribes Federal Implementation Plans to implement those obligations at the State level.  In Homer City, the Court finds that the Rule violates federal law.  The Court cited “at least three independent but intertwined legal flaws in EPA’s approach to the good neighbor provision.”  First, the requirements imposed on upwind States is not based on pollution from upwind States that “contribute significantly to nonattainment” in downwind States - as required by the Statute, and the Court’s prior decision in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).  Second, the Rule does not take into account the proportionality requirement, i.e., it does not look at the contributions of other upwind States to the downwind States’ nonattainment issues, and fails to take into account the downwind States’ fair share of pollution contributing to its nonattainment.  Finally, the Rule does not protect the upwind States from unnecessary over-protection, or over-control in the downwind States.  The Court also took serious issue with the EPA’s issuance of Federal Implementation Plans without giving the States a chance to implement the obligations themselves through their own SIPs.  

In the end, the Court found that the EPA’s authority comes from statute and is limited by statute.  The Court summarized that the Transport Rule, as promulgated, stands on an unsound foundation, and vacated the Transport Rule and the Transport Rule FIPs.  Much like the decision in North Carolina, the matter has been remanded to the EPA to develop a valid replacement that can sustain a legal challenge.  In the meantime, the EPA will continue to administer CAIR.   
 
Bookmark and Share

 

A sign entering town said “78% of all statistics are made up.” While I thought this was a bit cynical, over time I have come to see this as one of life’s truisms. Unfortunately, many groups, including our government, manipulate statistics to justify their actions.

Earlier this week, the American Trucking Association filed a brief with the U.S. Court of Appeals for the District of Columbia Circuit, illustrating that federal rules governing Hours of Service would add tremendous cost to the economy and undue burden onto drivers while providing minimal possible safety benefits. How did FMCSA justify the rulemaking? They did it with reliance on faulty statistics. 

ATA President and CEO Bill Graves said “FMCSA systematically, and without regard for science or logic, distorted the available data in order to fit it to a predetermined and arbitrary outcome.”  In order to justify the new Hours of Service rulemaking, FMCSA claims that 13% of all truck crashes were caused by fatigue, when the very study they relied upon showed that only 2% of crashes were caused by fatigue. Did FMCSA just lie? Not exactly. The study showed that fatigue was present during 13% of crashes, which was then exaggerated to causing 13% of crashes.

 We all know that there a number of issues present during a crash. So why does the federal government distort the data to justify the rulemaking? Because they claim that giving drivers an additional 7.8 minutes off each day will result in more restorative sleep and thus better rested and more alert drivers. Only time will tell.

 

Kurt M. Rozelsky, Smith Moore Leatherwood, LLP, Greenville, SC. Chair, DRI Trucking Law Committee

Bookmark and Share

 

Road Warriors and Heroes

Posted on March 6, 2012 01:53 by Noelle M. Natoli-Duffy

     As I sat in church last weekend, my pastor began to speak on the lesson of “Looking for Holiness.” He asked us to look for signs in the acts of everyday heroes and sheroes, and then he told the following story. He was in the fast lane, on a Friday evening of a 3-day weekend, on the largest freeway in Southern California, when his car decided to simply stop running. As he sat there, waiting for his car service come (anything within the next 30-90 minutes, not including traffic), a big red truck pulled up behind him. The team drivers stopped traffic, came to his window, and offered to push his car across five lanes of heavy traffic to the safety of the emergency lane. He accepted their assistance but before he could thank them or even get their names, they continued on their way, likely trying to make up some time from the holiday traffic.

As an advocate for the trucking industry, I am often disheartened by the countless news articles and headlines disparaging truckers and the trucking industry in general. However, stories like this inspire me to share more good news of the trucking industry.  I have represented hundreds of trucking companies and their drivers and have found them to be some of the most down-to-earth, hardworking, and God-fearing men and women I have come across not only in my years of practice, but in my time on this planet. As we are rapidly approaching the end of the first quarter of this year, a year in which trucking companies have already reported their highest increase in freight in 13 years (or a 5.9% increase in freight according to the American Trucking Association), I would like to share some of the headlines featuring the good work truckers and trucking companies are doing across the nation, and beyond!

 ·         The organization Truckers Against Trafficking (TAT) is working to eliminate human trafficking. The stated goal of the organization is, “to educate, equip, empower and mobilize members of the trucking and travel plaza industry to combat domestic sex trafficking.”

 ·         The Women in Trucking (WIT) association is promoting diversity through their partnership with the Transportation Marketing & Sales Association who will now include a category in their Annual Compass Awards for the awareness of minorities and women in the transportation industry.

 ·         Steve Towers, of ACME Haulage in Los Angeles, California made news by pledging funds to help a British boy, Theo Bishop, fly to the United States for surgery to treat his cerebral palsy. Towers also promised to reach out to other trucking companies to help the youth.

 ·         Due to the advocacy of a truck driver’s widow, Sarah VanWasshnova, and the Owner-Operator Independent Drivers’ Association the U.S. House Transportation and Infrastructure Committee’s highway bill will include a study for crashworthiness standards in truck cabs. Ms. VanWasshnova’s husband, a 30-year truck driver, died from blunt force trauma when he hit the steering column in a collision. 

 ·         Advocacy by OOIDA and a second truck driver’s widow, Sandy Hardendorf, helped the writing of Jason’s Law when her husband was shot while parked at a gas station. House of Representatives Bill 1803 proposed funding for additional, safe truck parking on our nation’s highways.

 ·         J.B. Hunt Transport Services announced that it is once again raising its quarterly dividend to common shareholders.

 ·         The Trucking Conditions Index reached 7.0 in December indicating an overall improvement in the trucking climate for the coming year.

 ·         Toronto-based, Trucks for Change Network announced the launch of MOVEmatrix, a new program which allows charities to partner with trucking companies to transport goods and other donations.

 ·         In December, Trucker Charity Inc. raised over $7,000 for needy trucking families in time for Christmas. The charitable organization has raised over $37,000 and helped 59 families over the past four years.

 And last, but not least,

 ·         In January, Port Arthur, Texas Sherriff’s Officers credited an unknown commercial truck driver with saving the lives of countless individuals in a 50-vehicle pile-up on Highway 73. The driver saw the accident ahead, stopped, activated his four-ways, and alerted all the other truck drivers by CB to “go ahead and shut it down.” According to the officer, “That’s the only thing that stopped this from being a true tragedy.” If anyone knows the identity of this driver, please give him a big “thank you.”

Good news of the trucking industry’s efforts, such as these makes me proud to represent this industry.  Keep up the good work and thanks again to all the anonymous drivers helping people one by one each day on the highway, you truly make a difference.

 

 Noelle M. Natoli-Duffy is an Associate at the Los Angeles office of Foley & Mansfield, PLLPHer civil practice is focused primarily on the defense of trucking, personal injury, and elder abuse claims.   

 

 

Bookmark and Share

 

As my pastor said in Church this past Sunday, "What are we waiting for?"  In other words, don’t wait until doomsday to get your house in order.  If you aren't in compliance with CSA now, take advantage of the winter slowdown to get there. Take 1 step this week to move towards compliance before you get hit. Here are few easy ways to save your company from racking up points. (All citations below to Code of Federal Regulations.)


Pull your drivers’ personnel files and double check everything is up to date:
Medical certificate not up to date – 1 point (391.41(b)(3))
No double-triple endorsement on the CDL – 3 points (383.93)
Operating without a valid CDL -- 3 points (383.23(a)(2))
Allowing driver to operate with a suspended or revoked CDL – 6 points (383.37(a))
Allowing driver under 21 years of ago drive interstate – 6 points (391.11(b)(1))

Hold a safety meeting and remind drivers about necessary details about their log books including:
Failure to sign the log book – 2 points (395.8(d)(5))
Failure to retain prior 7 days of log book – 5 points (395.8)
Hours of service violations – 7 points (various)
Failure to list motor carrier name in log – 2 points (395.8(f)(6))

Remind drivers that safety is priority one: 
Failure to wear seatbelt – 1 point (393.16)
Allowing an unauthorized passenger aboard – 1 point (392.60)
Smoking within 25 feet of a HM (hazardous material) vehicle – 1 point (397.13)

As you can see, some of these are heavily weighted, but so easy to prevent. Take the time now to protect your companies, your drivers, and yourself from a potential doomsday.

Bookmark and Share

 

New Plan for No-Fault Accidents?

Posted on July 20, 2011 03:20 by Noelle M. Natoli-Duffy

Upon reading a recent article on Truckinginfo.com in regards to potential, new no-fault regulations, my initial reaction to this was "great!" But then I kept reading. I disagree with the FMCSA's approach on correcting the scores by relying (almost) entirely on police reports. In my experience, most police officers have minimal training on accident investigation--nothing more than two weeks at the academy. If you think about it, police reports are not even admissible in court (at least in California--with a few minor exceptions), as inherently unreliable hearsay documents. Oftentimes, the officer's assessment of liability is based on incomplete statements from witnesses, misapplication of the law, and "guesstimations" on time, speeds, and distances (because they rarely take any measurements). I would like to see them try to correct these problems with something other than a quick band-aid that just makes the problem worse. I can just see it now...the next case I get will have a certified copy of the FMCSA score attached to the complaint with a cause of action for negligence per se.

 

Bookmark and Share

Categories: Transportation | Trucking Law

Actions: E-mail | Comments

 

Here is an interesting article I came across. Although I consider myself an advocate for drivers, I have to say I disagree with the trucker who was interviewed here. Everyone wants to make a profit, but profits can't come before people, even in these hard economic times. Plus, from a litigation standpoint, I have to say that I have always found it beneficial to be able to argue that my driver "couldn't have been speeding" because of the regulator... what does everyone else think?

Bookmark and Share

Categories: Transportation | Trucking Law

Actions: E-mail | Comments

 

On June 8, corporate America joined the United States Department of Transportation (DOT) in a joint venture to encourage employers to adopt policies to discourage distracted driving by employees. In their collaboration, the Better Business Bureau will feature a link from their website to a free tool kit that provides employers with sample company policy, memo to employees on that policy, company press release, and other materials. Also, the BBB website will provide videos from DOTs “Faces of Distracted Driving” video series.

This follows the DOTs ban on commercial motor vehicle drivers from texting while driving and the Obama Administration's ban on federal employees from doing the same. Those bans followed a October 2009 study by the Virginia Tech Traffic Institute, it was reported that texting while driving raises the risk of a safety critical event 26.3 times. Thus proving what we knew all along - no one is really good at multi-tasking - especially when driving down the road at 55 mph.

As our texting population grows so will the level of distraction. One of the featured speakers for the 2011 DRI Annual Meeting, New York Times columnist Matt Richtel, won the 2010 Pulitzer Prize for his series called Driven to Distraction. Richtel has studied this issue extensively and cites a New York Times poll that 50% of Americans believe texting-while-driving should be punished at least as harshly as drunken driving. Richtel also questions whether, once we reached this state of constant distraction, we can ever be focused again.
 
Now, how many times were you distracted by the phone, e-mail, internet or a colleague while reading these few short paragraphs? It took me 30 minutes, three phone calls, four websites and 13 e-mails in that time just to return to the focus of this piece. It is a good thing I am not driving.

Bookmark and Share

 
 

Submit Blog

If you wish to submit a blog posting for DRI Today, send an email to today@dri.org with "Blog Post" in the subject line. Please include article title and any tags you would like to use for the post.
 
 
 

Search Blog


Recent Posts

Categories

Authors

Blogroll



Staff Login