schlimm Judicial review is essential when there are conflicting opinions and facts. In the specific case of the DOT-111 cars, there is the longstanding FRA/STB requrement to carry flammables. However, there is also the longstanding opinion from the NTSB concerning their safety. There is also the more recent use of the cars to carry the dangerous and corrosive Bakken crude. And there are the even more recent accidents involving these cars with disastrous consequences. Laws, agency rulings and court decisions are not carved in stone for eternity. Intervening matters can and do lead to prior rulings being overturned. It is one of the reasons why we have courts. I suppose it will all hinge on an interested party with some standing appealing the FRA ruling to the FRA. If that fails, it could be taken to the courts.
Judicial review is essential when there are conflicting opinions and facts. In the specific case of the DOT-111 cars, there is the longstanding FRA/STB requrement to carry flammables. However, there is also the longstanding opinion from the NTSB concerning their safety. There is also the more recent use of the cars to carry the dangerous and corrosive Bakken crude. And there are the even more recent accidents involving these cars with disastrous consequences. Laws, agency rulings and court decisions are not carved in stone for eternity. Intervening matters can and do lead to prior rulings being overturned. It is one of the reasons why we have courts. I suppose it will all hinge on an interested party with some standing appealing the FRA ruling to the FRA. If that fails, it could be taken to the courts.
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I addressed this to some extent in my former notes, but let me summarize and expand:
1. A person can't just walk into a court and get judicial review of an agency rule that was adopted many years ago. Agency decisions must be appealed within a very short time (60 to 90 days) after they are made.
2. Changed circumstances or new facts (even an NTSB recommendation) are not grounds for bypassing the regulatory agency and going directly to court. The court won't even consider a challenge like this, because of the statutory time limits for judicial review of agency action mentioned above.
3. Changed circumstances or new facts are grounds for asking the regulatory agency itself to change its rules. That's essentially what's going on now in the tank car area - the regulatory agencies are considering whether additional design features should be required on tank cars carrying flammables (PHMSA) and whether additional operating measures should be taken when these commodities are transported (FRA). At such time as these agencies take action (either by adopting new requirements, or deciding not to adopt new requirements), that action would then be subject to judicial review.
4. The standard for judicial review of agency action is highly deferential to the agency. The reviewing court will not attempt to resolve "conflicting opinions and facts" and will not substitute its views on opinions or facts for those of the agency. The question for the court is whether the agency had legal authority to do what it, and whether it reasonably addressed the issues before it. Court decisions in this area frequently note that their role is not to second guess the agency.
Reviewing courts typically give particularly high deference to an agency on technical and policy questions. Agency decisions in these areas are not usually reversed. When they are, it's usually because (i) the agency violated its governing statute in some manner (in other words, the agency didn't have the legal authority to do what it did), or (ii) the agency effectively ignored major issues raised by the parties to the underlying proceeding (for example, if the agency "kissed off" a major issue without providing much of an explanation).
Please keep in mind that the original question in this thread was whether the City of Chicago could lawfully ban (by ordinance) the movement of flammable rail haz mat traffic through the city in DOT-111 tank. The answer is "no". That morphed into the question of whether the city or someone else could walk into court and get the court to ban this traffic (either through a judge's ruling or a jury verdict). The answer is "no". The pathway for considering any restrictions has to go through the the Federal agencies that regulate this traffic .
C&NW, CA&E, MILW, CGW and IC fan
schlimm All true, but I would add that the NTSB has questioned the DOT-111 cars' use for inflammables since 1991, 22 years ago , well before the oil boom golden egg or even the ethanol boom.
All true, but I would add that the NTSB has questioned the DOT-111 cars' use for inflammables since 1991, 22 years ago , well before the oil boom golden egg or even the ethanol boom.
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Once again, NTSB is not a regulatory agency. It has no authority to make rules for rail haz mat. It has authority only to make recommendations to the agencies which have that authority (PHMSA and FRA). It's up to PHMSA and/or FRA to decide the specifications needed for cars used to transport haz mat. Right now, those agencies permit DOT-111 cars to be used for flammable haz mat. That may change in the future, but that's the way it is now.
By the way, I modified my earlier post to add a link to a PHMSA website posting dealing with this issue. There's apparently a rulemaking proceeding in early stages.
schlimm I am talking about a suit against FRA, ICC or STB, etc. Happens quite often. Here is just one example: http://www.gpo.gov/fdsys/granule/USCOURTS-caDC-95-01621/USCOURTS-caDC-95-01621-0/content-detail.html [REPLY] Yes, you can file a lawsuit against a Federal regulatory agency. But you just can't ask a court to ignore what the agency has done (or not done) and substitute its own judgment for the agency's. In general, a person can sue a Federal regulatory agency to have a Federal court review some action the agency has taken. The suit must be brought within a relatively short period after the regulatory agency has acted (it's either 60 or 90 days, I don't remember which off the top of my head). The grounds for review are severely limited. Essentially the court can reverse the agency if it determines that the agency has violated Federal law, or has acted in a manner that's "arbitrary and capricious" . The latter standard is pretty tough to meet. One thing you often see in these decisions is the court saying that its review is limited to determining whether the agency acted properly when it made its decision (whatever that decision may be), not whether the court agrees with the outcome. And courts give particularly substantial deference to agency action in highly technical areas, which haz mat clearly is. One other thing. These court cases are not heard by juries. They are held before judges (usually appellate judges on rail regulatory matters). The court does not take additional evidence or otherwise attempt to retry the agency proceeding. Rather, their review is limited to the evidence and arguments submitted to the agency. The case you linked in your note is an example of this process. The ICC (now the STB) made a decision in a rail merger case that abrogated some provisions of a collective bargaining agreement. The unions filed for review (which they had to do within the 60 or 90 day time period menitioned above), The court case was held before a 3-judge Federal appellate court, not a jury, The court upheld the ICC decision, finding that the ICC had to power to make the modificiation (that's the meaning of the court's finding that the CBA terms in question weren't shielded from the ICCs abrogation authority) and that the ICC's decision that the changes were"necessary" to carry out the merger was reasonable. In the case of tank cars, the agency decisions to approve particular types of tank cars for particular materials were made many, many years ago You can't just walk into court and ask the court to review something this old - you'll be thrown out on your ear. And you can't get around this by passing a state law or ordinance ("home rule" or otherwise) to ban certain types of tank cars because Federal law prohibits states and localities from imposing their own rules on rail haz mat. The remedy is to ask the Federal agencies themselves to change their rules. And, in fact, the Federal agencies are reviewing their rules on tank cars, so there could be changes coming down the pike. See following link from the PHMSA website: http://phmsa.dot.gov/portal/site/PHMSA/menuitem.ebdc7a8a7e39f2e55cf2031050248a0c/?vgnextoid=47b5b587d4466310VgnVCM1000001ecb7898RCRD&vgnextchannel=5dfbd7dcb2588110VgnVCM1000009ed07898RCRD&vgnextfmt=print
I am talking about a suit against FRA, ICC or STB, etc. Happens quite often. Here is just one example:
http://www.gpo.gov/fdsys/granule/USCOURTS-caDC-95-01621/USCOURTS-caDC-95-01621-0/content-detail.html
Yes, you can file a lawsuit against a Federal regulatory agency. But you just can't ask a court to ignore what the agency has done (or not done) and substitute its own judgment for the agency's.
In general, a person can sue a Federal regulatory agency to have a Federal court review some action the agency has taken. The suit must be brought within a relatively short period after the regulatory agency has acted (it's either 60 or 90 days, I don't remember which off the top of my head). The grounds for review are severely limited. Essentially the court can reverse the agency if it determines that the agency has violated Federal law, or has acted in a manner that's "arbitrary and capricious" . The latter standard is pretty tough to meet. One thing you often see in these decisions is the court saying that its review is limited to determining whether the agency acted properly when it made its decision (whatever that decision may be), not whether the court agrees with the outcome. And courts give particularly substantial deference to agency action in highly technical areas, which haz mat clearly is.
One other thing. These court cases are not heard by juries. They are held before judges (usually appellate judges on rail regulatory matters). The court does not take additional evidence or otherwise attempt to retry the agency proceeding. Rather, their review is limited to the evidence and arguments submitted to the agency.
The case you linked in your note is an example of this process. The ICC (now the STB) made a decision in a rail merger case that abrogated some provisions of a collective bargaining agreement. The unions filed for review (which they had to do within the 60 or 90 day time period menitioned above), The court case was held before a 3-judge Federal appellate court, not a jury, The court upheld the ICC decision, finding that the ICC had to power to make the modificiation (that's the meaning of the court's finding that the CBA terms in question weren't shielded from the ICCs abrogation authority) and that the ICC's decision that the changes were"necessary" to carry out the merger was reasonable.
In the case of tank cars, the agency decisions to approve particular types of tank cars for particular materials were made many, many years ago You can't just walk into court and ask the court to review something this old - you'll be thrown out on your ear. And you can't get around this by passing a state law or ordinance ("home rule" or otherwise) to ban certain types of tank cars because Federal law prohibits states and localities from imposing their own rules on rail haz mat. The remedy is to ask the Federal agencies themselves to change their rules. And, in fact, the Federal agencies are reviewing their rules on tank cars, so there could be changes coming down the pike. See following link from the PHMSA website:
http://phmsa.dot.gov/portal/site/PHMSA/menuitem.ebdc7a8a7e39f2e55cf2031050248a0c/?vgnextoid=47b5b587d4466310VgnVCM1000001ecb7898RCRD&vgnextchannel=5dfbd7dcb2588110VgnVCM1000009ed07898RCRD&vgnextfmt=print
henry6 Courts will often not accept a case like this where there is a commission or regulatory agency which oversees the business or activity because they have priority in such matters. After the agency or commission has acted and one brings court action, it may or may not accept the case. .
Courts will often not accept a case like this where there is a commission or regulatory agency which oversees the business or activity because they have priority in such matters. After the agency or commission has acted and one brings court action, it may or may not accept the case. .
The principal Federal rail regulatory agencies (FRA, TSA, PHMSA and STB) operate under Federal statutes which expressly "preempt" state and local laws. "Preemption" essentially prevents state and local authorities from creating legal requirements which differ from the Federal requirements and, in some cases, prevents state and local authorities from creating legal requirements where there are no Federal requirements. "Preemption" applies not only to to state/local laws and regulations. but also to court decisions (by a judge or jury) that create legal obligations (like "standards of care") under common law.
In some cases, Federal preemption so comprehensively preempts a subject that a state/local court can't even consider it (sometimes called "complete preemption"). In other cases, the Federal statues do not prevent a state or local court from "accepting" a case, as such. But, they severely limit the ability of the court to find liability or impose remedies where preemption applies. As a practical matter, this means that a court suit based on a theory of liability that's preempted is pretty much a lost cause, so it doesn't matter much whether the court "accepts" the filing (except that the lawyers get to collect lots of fees to litigate the preemption issue). What will often happen in a case like this is that one of the parties (usually, but not always, the railroad) will ask the court to "refer" the regulatory issues to the appropriate Federal regulatory agency for a decision on what Federal law requires or permits. Under U.S. Supreme Court precedent, a court is supposed to grant requests like this if a Federal regulatory agency has "primary jurisdiction" over a matter (a foregone conclusion with haz mat, given the extensive Federal regulation of the subject).
So how does this apply to haz mat? The safety requirements for various hazardous commodities transported by rail (including requirements for the rail cars used to transport them) are very specifically addressed in Federal hazardous materials regulations, and those regulations preempt state/local regulation, whether imposed by statutes, administrative rules or court decisions. A railroad's duty to transport haz mat shipments that comply with Federal rail safely laws has also been addresed by STB, which operates under one of the broadest preemptive statues in Federal law. There isn't much, if any, room for states or localities to impose their own requirements in this area. either through positive laws/regulations or common law court decisions.
Henry brings up a good point-- that a court will decide if it's the proper venue before they accept a case. Additionally "After the agency or commission has acted..." could refer to all the layers of administrative proceedings that a case would have to go thru before it gets to any court. In that time frame, the tank car fleet could be well on the way to upgrade/replacement before that happens.
It's been noted that railroads (which don't generally own the tank cars) are pushing for tougher tank car standards. It's also been noted that the RRs have to accept freight cars that meet present regulatory standards. However, I don't believe that RRs are obliged to up-grade and add capacity to their lines to handle the new traffic, and yet they are. So it's apparent that the railroads want the business, and want to be on record showing that they are concerned that it's handled safely.
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schlimm I was not referring to a case ruling in a regulatory agency. I was talking about a case that goes to court with a peer jury, where public sentiments can be an aid.
I was not referring to a case ruling in a regulatory agency. I was talking about a case that goes to court with a peer jury, where public sentiments can be an aid.
Which would be thrown out once the case is appeled to a court that does not involve juries. There is far too much money for the oil/leasing companies to not take the case as far up as they need too. If these alderman are indeed serious about this, and not just looking for a 5:00 news soundbite, need to put pressure on the PHMSA to change the rules. Do things the legal and proper way, which no doubt is a foreign concept to most elected Chicago officals.
An "expensive model collector"
schlimm BaltACDDOT-111 cars are NOT OWNED by the railroads. The railroads don't need prodding, the car owners do! The railroads are obligated to accept HAZMAT shipments tendered in cars that regulatory authorities have decreed are acceptable for the commodity. The car owners are some of the largest petroleum and industrial chemical manufacturers in the World - prod them! I notice the AAR is "prodding" the federal regulators (whichever agency has authority). vSo the railroads should also be "prodding" the oil companies and the feds to act. Are they? Or are you saying it is only up to the general public? And as I said earlier, given the long-standing NTSB ruling on the DOT-111 cars, the rails could take their chances with not accepting the cars loaded with oil and see what the FRA or courts would say. Given public outrage over the accidents with DOT-111 cars, lawyer friends suggest the rails would probably prevail.
BaltACDDOT-111 cars are NOT OWNED by the railroads. The railroads don't need prodding, the car owners do! The railroads are obligated to accept HAZMAT shipments tendered in cars that regulatory authorities have decreed are acceptable for the commodity. The car owners are some of the largest petroleum and industrial chemical manufacturers in the World - prod them!
I notice the AAR is "prodding" the federal regulators (whichever agency has authority). vSo the railroads should also be "prodding" the oil companies and the feds to act. Are they? Or are you saying it is only up to the general public? And as I said earlier, given the long-standing NTSB ruling on the DOT-111 cars, the rails could take their chances with not accepting the cars loaded with oil and see what the FRA or courts would say. Given public outrage over the accidents with DOT-111 cars, lawyer friends suggest the rails would probably prevail.
Here is another link to the 2009 UP decision (this link may work better than the one in my earlier note):
http://www.stb.dot.gov/decisions/ReadingRoom.nsf/UNID/5E59A6C2D2A853A2852575D2004B8A7B/$file/39995.pdf
One other thing. Back in 1984, there was a major haz mat release in Bhopal, India which killed thousands. In response to this disaster, Conrail attempted to "flag out" of all rates for transportation of "ultrahazardous" haz mat, including the chemical responsible for Bhopal. The effect of the flag out would have been that Conrail would not transport these materials. The ICC shot it down in Classification Ratings of Chemicals - Conrail, 3 ICC 2d 331, 1986 WL 328053. This is one of the decisions cited in the 2009 UP decision. Your lawyer friends should look at it as well.
Most of the problem on many issues is that the public expects a solution NOW!!! All of the older tank cars will be replaced next month, the deteriorating highway bridge will be repaired in two weeks, etc. People don't realize that the issue is being addressed but the solution is going to take some time.
schlimmAfter the Lac megantic accident, to dismiss this issue as "NIMBY" is beneath comment.
Per the original linked piece, the aldermen aren't suggesting that DOT-111 cars be banned outright - only from the city of Chicago. Their backyard.
That said, my thought there is that they aren't looking at the overall picture. As noted, replacing those DOT-111 cars is going to take years, and the results of an immediate outright ban would be catastrophic. The railroads could work around Chicago, satisfying the aldermen's concern, but the overall issue is much greater.
Larry Resident Microferroequinologist (at least at my house) Everyone goes home; Safety begins with you My Opinion. Standard Disclaimers Apply. No Expiration Date Come ride the rails with me! There's one thing about humility - the moment you think you've got it, you've lost it...
Are your 'lawyer friends' willing to bet their present and future financial life on the outcome of such a trail? A railroad who refused to accept a legal shipment would be doing that.
Never too old to have a happy childhood!
Last I read (on energy blogs) there is already a 40,000 backlog of new tank car orders. This thing is not going to get fixed overnight.
If one railraod would attempt (and fail, I'd think) to accept those tank cars, the next railroad would probably be more than willing to take them. That's a lot of money to turn away, and I doubt stockholders would be too happy.
It's been fun. But it isn't much fun anymore. Signing off for now.
The opinions expressed here represent my own and not those of my employer, any other railroad, company, or person.t fun any
Well said, Larry and Balt. I do not doubt that the general public is unaware of the realities of transportation of hazardous goods, and many have the impression that solutions to problems can appear immediately, like the "deus ex machina" would appear in the ancient Greek dramas, swooping down from the sky.
Until I had to be certified in shipping hazardous goods, I knew little about such transportation.
Johnny
schlimm Just as with most safety appliances, such as Janney couplers and airbrakes, just as with elimination of archbar trucks, the railroads seem to have a history of needing "prodding" from outside to get them to adopt needed measures. Most of those were phased in, on a mandated timeline of several years, same as the PTC. Perhaps that will be the outcome with the DOT-111, to ban their use for transporting highly flammable content only (other liquids are fine).. After the Lac megantic accident, to dismiss this issue as "NIMBY" is beneath comment.
Just as with most safety appliances, such as Janney couplers and airbrakes, just as with elimination of archbar trucks, the railroads seem to have a history of needing "prodding" from outside to get them to adopt needed measures. Most of those were phased in, on a mandated timeline of several years, same as the PTC. Perhaps that will be the outcome with the DOT-111, to ban their use for transporting highly flammable content only (other liquids are fine).. After the Lac megantic accident, to dismiss this issue as "NIMBY" is beneath comment.
DOT-111 cars are NOT OWNED by the railroads. The railroads don't need prodding, the car owners do! The railroads are obligated to accept HAZMAT shipments tendered in cars that regulatory authorities have decreed are acceptable for the commodity. The car owners are some of the largest petroleum and industrial chemical manufacturers in the World - prod them!
Given the number of DOT-111 cars in use today, everyone has to tread lightly on the topic. For a regulator or a railroad to publicly agree that the cars are a hazard would create turmoil that would make the UP/SP meltdown look like a walk in the park.
A lot of product simply would not move. The trickle-down effect would be huge.
I don't know how long it takes to turn out a tank car, but I'd be willing to bet that a 100% replacement would run into years.
And I seriously doubt that the trucking industry, as versatile as they are, would be able to take up the slack - they're already short drivers, and it's doubtful there are enough suitable tankers available either.
Thus I would opine that the response by regulators is a measured one. They may agree 100% that the cars themselves are a hazard, but I would suspect that their strategy is to phase out the DOT-111 cars as replacements can be built, as opposed to a cold-turkey ban. Thus they make noises (ie, "psst - hint, hint") on the topic so that the owners and builders can ramp up replacement efforts.
Politicians such as the one in question have no concept of (or don't care about) the world outside the borders of their political subdivision, just as long as the "threat" is NIMBY.
Save us from idiot politicians who haven't got a clue!
schlimm n012944 blue streak 1 n012944 BTW, it is not about what the railroads want. As long as the FRA ok's DOT-111 to transport any kind of hazmant, the railroads must accept the cars under their common carrier obligations. The RRs do want to be compensated for carrying Haz Mat. However the STB would not allow the RRs to charge extra for carrying these materials Agreed. However when this comment is made.... "If the rails want to transport dangerous substances (which they did not transport when originally chartered and built) in a careless manner now" Schlimm is implying that the railroads WANT to run trains using the DOT-111 cars. It is not up to the railroads as long as hazmat is legal to haul in the DOT-111 cars. The common carrier obligations prevents them from refusing to take the cars. In fact railroads have been pushing for a change. http://online.wsj.com/news/articles/SB10001424052702303559504579196303848431002 "The nation's railroads are asking safety regulators to require that all existing tank cars that carry crude oil, ethanol and other flammable liquids be modified or upgraded to better withstand accidents or be "aggressively" phased out of service" Schlimm might want to do some research before calling out railroads operating in a "careless manner." However I doubt he will let the facts get in the way of his anti railroad rants. I appreciate your correction, though not your characterization. Since the federal regulators have already labeled the DOT-111's as hazardous for flammable contents, and since the railroads are "pushing for a change" why don't they test the waters by stating they will refuse to accept DOT-111's loaded with flammables? Doubtful that the regulation to accept any load as common carrier would be upheld under these specific circumstances.
n012944 blue streak 1 n012944 BTW, it is not about what the railroads want. As long as the FRA ok's DOT-111 to transport any kind of hazmant, the railroads must accept the cars under their common carrier obligations. The RRs do want to be compensated for carrying Haz Mat. However the STB would not allow the RRs to charge extra for carrying these materials Agreed. However when this comment is made.... "If the rails want to transport dangerous substances (which they did not transport when originally chartered and built) in a careless manner now" Schlimm is implying that the railroads WANT to run trains using the DOT-111 cars. It is not up to the railroads as long as hazmat is legal to haul in the DOT-111 cars. The common carrier obligations prevents them from refusing to take the cars. In fact railroads have been pushing for a change. http://online.wsj.com/news/articles/SB10001424052702303559504579196303848431002 "The nation's railroads are asking safety regulators to require that all existing tank cars that carry crude oil, ethanol and other flammable liquids be modified or upgraded to better withstand accidents or be "aggressively" phased out of service" Schlimm might want to do some research before calling out railroads operating in a "careless manner." However I doubt he will let the facts get in the way of his anti railroad rants.
blue streak 1 n012944 BTW, it is not about what the railroads want. As long as the FRA ok's DOT-111 to transport any kind of hazmant, the railroads must accept the cars under their common carrier obligations. The RRs do want to be compensated for carrying Haz Mat. However the STB would not allow the RRs to charge extra for carrying these materials
n012944 BTW, it is not about what the railroads want. As long as the FRA ok's DOT-111 to transport any kind of hazmant, the railroads must accept the cars under their common carrier obligations.
BTW, it is not about what the railroads want. As long as the FRA ok's DOT-111 to transport any kind of hazmant, the railroads must accept the cars under their common carrier obligations.
The RRs do want to be compensated for carrying Haz Mat. However the STB would not allow the RRs to charge extra for carrying these materials
Agreed. However when this comment is made....
"If the rails want to transport dangerous substances (which they did not transport when originally chartered and built) in a careless manner now"
Schlimm is implying that the railroads WANT to run trains using the DOT-111 cars. It is not up to the railroads as long as hazmat is legal to haul in the DOT-111 cars. The common carrier obligations prevents them from refusing to take the cars.
In fact railroads have been pushing for a change.
http://online.wsj.com/news/articles/SB10001424052702303559504579196303848431002
"The nation's railroads are asking safety regulators to require that all existing tank cars that carry crude oil, ethanol and other flammable liquids be modified or upgraded to better withstand accidents or be "aggressively" phased out of service"
Schlimm might want to do some research before calling out railroads operating in a "careless manner." However I doubt he will let the facts get in the way of his anti railroad rants.
The key issue is whether DOT 111's are legal conveyances for transporting flammables. They are. The Federal "regulators" have not decided that DOT 111's are unacceptably hazardous for flammable materials, despite what some of the posts may say. NTSB isn't a regulatory agency, and its views in this area are no more than recommendations to the agencies which actually set the rules. Perhaps the regulatory agencies may change their rules in the future but they haven't yet.
Trivial point. In this case, the relevant safety agency is PHMSA (Pipeline and Hazardous Materials Safety Administration), not FRA. They are the ones that determine what conveyances can be used to transport particular haz mats. Your overall point (that railroads must accept the cars if they are in compliance with Federal safety regulations) is correct.
This article puts the matter in a factual perspective. The NTSB ruling goes back to 1991, but it sounds like political pressure from numerous sources is pushing the FRA to take action.
http://abclocal.go.com/wls/story?id=9308437
The facts are the railroads DON'T OWN the DOT 111 tank cars - they only haul them because they can't refuse them as their operation is allowed by the existing regulations.
It is up to the OWNERS of the cars to upgrade them.
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