A Department of Transportation Administrative Law Judge found that the order against Dave Kistler and Grandson Trucking, Kempton, PA, could not stand because it was based on history rather than current incidents. FHWA used a statistical comparison of Kistler's out-of-service performance to the national average to justify the order - but the law requires a clear imminent hazard of serious injury or death.
According to Kistler's attorney, Anthony J. McMahon, FHWA admitted that it ordered the company out-of-service without pointing to that kind of hazard. Also at issue, he said, is the quality of the data the agency uses to justify its orders. "A carrier selected for a compliance review based on conclusions drawn from the data may be able to mount a successful challenge to its selection."
FHWA had no comment. "It's an ongoing investigation," a spokesman explained.