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PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Transportation and Infrastructure. Additional material pertinent to this transcript may be found on the web site of the Committee at [http://www.house.gov/transportation]. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.







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NOVEMBER 6, 1997








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NOVEMBER 6, 1997

Printed for the use of the

Committee on Transportation and Infrastructure


BUD SHUSTER, Pennsylvania, Chairman
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THOMAS E. PETRI, Wisconsin
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
JAY KIM, California
STEPHEN HORN, California
BOB FRANKS, New Jersey
JOHN L. MICA, Florida
SUE W. KELLY, New York
RAY LaHOOD, Illinois
FRANK RIGGS, California
CHARLES F. BASS, New Hampshire
JACK METCALF, Washington
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ROY BLUNT, Missouri
JOSEPH R. PITTS, Pennsylvania
JOHN R. THUNE, South Dakota
CHARLES W. ''CHIP'' PICKERING, Jr., Mississippi
JON D. FOX, Pennsylvania
J.C. WATTS, Jr., Oklahoma

NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
ROBERT E. WISE, Jr., West Virginia
BOB CLEMENT, Tennessee
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ELEANOR HOLMES NORTON, District of Columbia
PAT DANNER, Missouri
JAMES E. CLYBURN, South Carolina
BOB FILNER, California
FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
BILL PASCRELL, Jr., New Jersey
JAY W. JOHNSON, Wisconsin
JAMES P. McGOVERN, Massachusetts
TIM HOLDEN, Pennsylvania
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Subcommittee on Surface Transportation

THOMAS E. PETRI, Wisconsin, Chairman

CHARLES W. ''CHIP'' PICKERING, Jr., Mississippi Vice Chairman
HOWARD COBLE, North Carolina
STEPHEN HORN, California
BOB FRANKS, New Jersey
JOHN L. MICA, Florida
SUE W. KELLY, New York
RAY LaHOOD, Illinois
FRANK RIGGS, California
CHARLES F. BASS, New Hampshire
JACK METCALF, Washington
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JOSEPH R. PITTS, Pennsylvania
JOHN R. THUNE, South Dakota
J.C. WATTS, Jr., Oklahoma
BUD SHUSTER, Pennsylvania
(ex officio)

NICK J. RAHALL II, West Virginia
PAT DANNER, Missouri
JAMES E. CLYBURN, South Carolina
BOB FILNER, California
FRANK MASCARA, Pennsylvania
ELEANOR HOLMES NORTON, District of Columbia
GENE TAYLOR, Mississippi
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BILL PASCRELL, Jr., New Jersey
JAMES P. McGOVERN, Massachusetts
(ex officio)



    Byrd, Lamont, Director, Safety and Health Department, International Brotherhood of Teamsters, Washington, DC

    Coyner, Kelley S., Acting Administrator, Research and Special Programs Administration, U.S. Department of Transportation, accompanied by George S. Reagle, Associate Administrator for Motor Carriers, Federal Highway Administration

    Currie, John V., Administrator and Technical Consultant, Vessel Operators Hazardous Material Association, Inc., Lake George, NY

    Everitt, R. Dale, Vice President, Operation Respond Institute, Inc., Washington, DC

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    Eversole, Chief Fire Officer John, Commander, Chicago Hazardous Materials Division, and Representative, City of Chicago Local Emergency Planning Committee, on behalf of the International Association of Fire Chiefs

    Garrigan, Mike, Director of Distribution, BP Chemical Inc., Warrensville Heights, OH, on behalf of the Chemical Manufacturers Association

    Gorham, Michael R., Treasurer, National Propane Gas Association, Washington, DC

    Gross, Thomas, Environmental Specialist, Southern California Edison Company, Rosemead, CA, on behalf of the Edison Electric Institute

    Inclima, Rick, Director of Education and Safety, Brotherhood of Maintenance of Way Employees

    Lane, Charlotte R., Chairman, Public Service Commission of West Virginia

    Nesbitt, Frederick H., Director of Governmental Affairs, International Association of Fire Fighters

    Parker, Elizabeth M., Associate Director, Office of Intergovernmental Policy, Minnesota Department of Transportation

    Pascrell, Hon. Bill, Jr., a Representative in Congress from New Jersey
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    Ringo, Philip J., President and CEO, Chemical Leaman Tank Lines, Inc., Exton, PA, on behalf of the American Trucking Associations, the Association of Waste Hazardous Materials Transporters, and the National Tank Truck Carriers

    Wallace, Jerry, Swim Chem, Sacramento and Tracy, CA, on behalf of the National Association of Gas Chlorinators

    Wise, Hon. Robert E., Jr., a Representative in Congress from West Virginia


    Cook, Hon. Merrill, of Utah
    Costello, Hon. Jerry F., of Illinois
    Cramer, Hon. Bud, of Alabama
    Oberstar, Hon. James L., of Minnesota
    Pascrell, Hon. Bill, Jr., of New Jersey
    Wise, Hon. Robert E., Jr., of West Virginia


    Byrd, Lamont

    Coyner, Kelley S

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    Currie, John V

    Everitt, R. Dale

    Eversole, John

    Garrigan, Mike

    Gorham, Michael R

    Gross, Thomas

    Inclima, Rick

    Lane, Charlotte R

    Nesbitt, Frederick H

    Parker, Elizabeth M

    Ringo, Philip J

    Wallace, Jerry

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Byrd, Lamont, Director, Safety and Health Department, International Brotherhood of Teamsters, Employee Protection/Training Program, Article 16, Section 8, developed by the National Master Freight Safety and Health Committee

Coyner, Kelley S., Acting Administrator for the Research and Special programs Administration, U.S. Department of Transportation:

Section 4–2.3.3, Standard for the Storage and Handling of Liquefied Petroleum Gases, National Fire Protection Association, February 7, 1995

Response to Rep. Cook, concerning H.R. 2083, to prohibit the shipment of spent nuclear fuel to the Goshute Indian Reservation in Utah

Report, Preliminary Regulatory Evaluation, Docket HM–225, Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service, February 1997

Report, Regulatory Evaluation, Docket RSPA–97–2133 (HM–225), Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service, July 1997

Response to question from Rep. Petri
Responses to questions from Rep. Pickering

    Currie, John V., Administrator, Vessel Operators Hazardous Materials Association, Inc., supplemental statement
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    Garrigan, Mike, Director of Distribution, BP Chemical, Inc., Warrensville Heights, OH, on behalf of the Chemical Manufacturers Association responses to post hearing questions

    Gross, Thomas, Environmental Specialist, Southern California Edison Company, responses to post hearing questions

Ringo, Philip J., President and CEO, Chemical Leaman Tank Lines, Inc., on behalf of the American Trucking Association, the Association of Waste Hazardous Materials Transporters, and the National Tank Truck Carriers, Inc., responses to post hearing questions


    McAuliffe, Heidi K., Counsel, Government Affairs National Paint and Coatings Association, responses to post hearing questions

Hilton, Cynthia, and Paul Rankin, Co-Facilitators, Interested Parties for Hazardous Materials Transportation Act Reauthorization:

Letter, May 23, 1997

HMTUSA Revisions, May 23, 1997

Letter, July 18, 1997
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Recommended Amendments to Administration Proposals, Title X, Hazardous Materials Reauthorization National Economic Crossroads Transportation Efficiency Act

Federal Register, Department of Transportation, Research and Special Programs Administration, 49 CFR Parts 171 and 173, Hazardous Materials in Intrastate Commerce; Delay of Compliance Date, Technical Amendments, Corrections and Response to Petitions for Reconsideration; Final Rule, September 22, 1997

Newspaper articles
Office of Inspector General, Audit Report


    National Fire Protection Association, statement

    Association of American Railroads, statement

    Donaldson, Gerald, A., Ph.D., Senior Research Director, Advocates for Highway and Auto Safety, statement

    Gaibler, Floyd D., Vice President, Governmental Affairs, Agricultural Retailers Association, statement

    Ney, Hon. Bob, a Representative in Congress from Ohio, statement of the Public Utilities Commission of Ohio
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    Matthews, Robert A., Railway Progress Institute, Inc., letter and brochure, Tank Car Safety




U.S. House of Representatives,

Subcommittee on Surface Transportation,

Committee on Transportation and Infrastructure,

Washington, DC.

    The subcommittee met, pursuant to notice, at 10:05 a.m., in Room 2167, Rayburn House Office Building, Hon. Thomas E. Petri, chairman of the subcommittee, presiding.

    Mr. PETRI. The hearing will come to order.

    The Surface Transportation Subcommittee is conducting this hearing to review the current status of the Hazardous Materials Transportation Program and to review issues related to the reauthorization of the program, which was last completed in 1994.
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    Through regulation affecting packaging, handling, marking, and routing, the Research and Special Programs Administration of the Department of Transportation is charged with ensuring the safe transportation of hazardous materials or at least decreasing the risk that naturally follows when these types of goods are moved across the highways, rails, and through the air.

    Planning and training grants funded through registration fees and provided to States and other groups ensure that employees are properly trained in the safe handling, loading, and transporting of hazardous materials, and that emergency responders are adequately prepared to respond to emergencies should an incident occur.

    In 1997, $6.4 million in grants were provided to States, territories, and tribes. Last year, more than 120,000 emergency responders were trained nationwide with grant funds, and more than 4,000 local emergency planning committees received funding. Since the program's inception, nearly 700,000 responders have been trained, in part, with grant funds.

    Hazardous materials are pervasive in our society, and the safe transportation of these materials is essential in today's economy for the manufacture of finished goods, for health care purposes, and even for the mundane activities of our lives.

    While many may think of hazardous materials as flammable oil and radioactive materials, which they are, it is also true that such items as nail polish remover and hair spray come under regulation. One million shipments of hazardous materials occur each day in our country.
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    The safety record of hazardous materials transportation remains good, considering the large volume of shipments, about 3 to 4 billion tons per year. Not including the ValuJet accident, there were 103 fatalities from hazardous material incidents in the 10 years from 1987 through 1996.

    So we look to considering a reauthorization bill next year, confident we can work together with the administration and with other affected groups to craft a bill that continues to enhance safety.

    This morning, we will receive testimony regarding the administration's reauthorization proposal, which is included in H.R. 1720, responses from other groups regarding that proposal, and other new initiatives. Some specific concerns have been raised by the propane gas industry and the National Association of Gas Chlorinators.

    The propane issue has generated an enormous amount of attention here because many of us in northern rural areas rely on propane gas to get us through our long, cold winters.

    Both industries will share their concerns today, and I hope that we can work to resolve these in a common sense, but effective way.

    Now I would like to yield to our Ranking Member on the subcommittee, Representative Rahall from West Virginia.

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    Mr. RAHALL. Thank you, Mr. Chairman, and I thank you for conducting these hearings today.

    I am pleased to note that a great deal of progress has been made in ensuring that movements of hazardous materials in this country are conducted in as safe a fashion as possible.

    It also appears that this time around, the reauthorization of HAZMAT should be a relatively noncontroversial issue. There are, however, two items in particular with which I have concerns.

    First, I am dismayed at the resistance of the FHWA to implement the uniform program as recommended by the Alliance for Uniform HAZMAT Transportation Procedures.

    In the 1990's, Congress directed DOT to establish a working group of State officials for the purpose of devising uniform forms and procedures for the registration and permitting of motor carriers of hazardous materials. Obviously, if done right, a uniform program would offer significant safety benefits and reduce administrative cost to everyone involved.

    When that working group was established, several States, including West Virginia, undertook a pilot project. Recommendations have been made, but, to date, they have fallen on deaf ears at the FHWA.

    I would suggest that the agency is not just ignoring the intent of Congress in this matter. Rather, the FHWA is discarding a clear mandate.
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    The 1990 Act states that the Secretary shall—shall prescribe regulations to carry out the recommendations made by the working group, not ''may,'' not if they feel like it, not think about it, not maybe some day, but shall implement the recommendations.

    Now, whether you refer to Webster's or the American Heritage dictionary or any other dictionary in the English language, the word ''shall'' has the same meaning in all dictionaries.

    It is my understanding that there are currently 58 registration permitting programs imposed by 37 States. That is 13 more programs than existed in 1990 when we authorized the uniform program.


    What this means is that stakeholders are subjected to duplicative, non-reciprocal, non-uniform registration and permitting regimes based on paper compliance, rather than performance. Meanwhile, the implementation of a uniform program would bring bureaucratic relief, a level playing field, and far more effective enforcement. I fail to see how we on this committee can condone the FHWA's failure to move forward on this matter.

    The second issue that I am concerned with involves recent rulemakings involving compressed gas, propane deliveries.

    Fox's sitcom, ''King of the Hill,'' may have more widely publicized the patriotic sentiments held by those who engage in the propane trade, but many people in rural areas of the country know full well the critical importance propane plays in their daily lives.
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    Have these deliveries been safe? The facts speak for themselves. Over the last 10 years, there have been over 300 million propane deliveries in this country involving nearly 90 billion gallons of gas. It is my understanding that during this period, DOT identified only nine instances where the effectiveness of the excess flow feature of the emergency discharge control system could be at issue.

    Yet, based on an incident in Sanford, North Carolina, RSPA side-stepped normal notice and comment procedures and implemented a rulemaking that may be so burdensome that it could drive many rural-based propane delivery system companies out of business.

    I can guarantee you that if our constituents cannot get propane delivered to their homes, when their water runs cold in the dead of winter or when low-income families are subjected to dramatic price increases that they can ill afford, they are not going to want to hear arguments about emergency shutoff devices.

    RSPA is charged with implementing the act and its regulations, and I do not believe that they are doing so with an intent to cause disruptions in propane deliveries. I also realize that since the Sanford incident, RSPA has identified three other accidents involving propane releases which may or may not have involved issues related to its recent rulemaking.

    However, there does appear to be honest differences of opinion in how best to comply with any new requirements, and, hopefully, through this hearing, Mr. Chairman, we can move these parties closer to finding some common ground. I think, that Hank Hill would want it that way.
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    I look forward to hearing from all of our witnesses today, especially our colleagues on the first panel, Representative Wise from West Virginia and Mr. Pascrell from New Jersey.

    Mr. PETRI. Thank you.

    Statements by the chairman of the full committee and the senior member on minority, Mr. Oberstar, will be made a part of the record.

    [The prepared statements of Mr. Oberstar, Mr. Costello, and Mr. Cramer follow:]

    [Insert here.]

    Mr. PETRI. Are there any other members who wish to make opening statements?

    Representative Kelly?

    Mrs. KELLY. Thank you, Mr. Chairman. I thank you for holding this important hearing today, and I want to say that I think this may clearly assure the American public of safe transportation of hazardous material. I think it is one of the more serious issues that is faced by this subcommittee, and I am glad we are addressing it.

    In addition to hearing testimony on reauthorization of the Hazardous Materials Transportation Program, as the Chairwoman of the Small Business Subcommittee on Regulatory Reform and Paperwork Reduction, I am especially interested in hearing the testimony of the National Propane Gas Association regarding a particular DOT regulation.
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    More than 90 percent of the NPGA's member companies are small businesses, small businesses that are often negatively affected when the DOT passes down a costly regulation.

    While I strongly recognize the importance of the hazardous materials transportation reauthorization for the health and safety of Americans, it is important that we do not forget small businesses and the cost to small businesses in the process of regulation.

    Thank you, Mr. Chairman.

    Mr. PETRI. Thank you.

    Are there other opening statements?

    [No response.]

    Mr. PETRI. If not, I know I need not remind these witnesses that oral testimony is limited to 5 minutes, and full written statements will be made a part of the record, but we also have submissions for the record from the National Fire Protection Association, the Association of American Railroads, Advocates for Auto and Highway Safety, the Transportation Trades Department of the AFL–CIO, and several other organizations.

    Now I would like to welcome our first witnesses, our colleagues from West Virginia and New Jersey.

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    Bob, would you like to begin?


    Mr. WISE. Thank you very much, Mr. Chairman and Ranking Member Rahall, members of the subcommittee, for giving us this opportunity to testify, and I testify—I come before you as both the Ranking Member on the subcommittee on Railroads and, more importantly, as the Representative, of course, of the Second District of West Virginia.

    Let me just also say as an aside, I am delighted to have another West Virginia witness who will be testifying, the chairperson of our Public Service Commission, Charlotte Lane. We have worked together for many, many years, and she represents our State well on the PSC.

    Mr. Chairman, I would ask unanimous consent to insert my statement in its entirety in the record, and I will summarize.

    Mr. Chairman, like you and Ranking Member Rahall and others, we have been faced with the problems of hazardous materials accidents on particularly the rail system. My district and much of West Virginia is criss-crossed by railroads that carry product to and from the chemical industry, as well as crossing through.

    This summer, there was a chemical release in the area of Scary, West Virginia, in Putnam County, in which a train carrying chemical products smashed into the back of a coal train. A fire broke out. One rail worker was killed. Others were injured. The chemical fire burned for a long time. Chemical unknown fumes for a while, unknown for a while, filled the air.
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    The emergency response crews responded admirably and did the best job they possibly could, but there was a lot of problem with identifying—initially identifying what was in those—what was in those cars.

    Much has been done already, but it is important to recognize the positive steps that railroads and shippers have taken to improve safety, such as Transcare and other programs.

    I would like to talk briefly about one such program called Operation Respond. Operation Respond has developed software allowing local emergency responders, faster and more accurate information about hazardous materials involved in a train or highway accident. They are going to testify today so they can tell their own story, but I do want to applaud them.

    Operation Respond is a direct result of a National Academy of Sciences study that recommended experiments using carrier databases to provide critical information to first responders, and since then, it has received both private and public funding. It is a nonprofit institute, but assisted by the Federal Highway Administration, the Research and Special Projects Administration, the Federal Railroad Administration, and the National Institute for Occupational Safety and Health.

    I would also like to commend the Ranking Member, Mr. Rahall from West Virginia, for his work on behalf of Operation Respond over the last few years. He is currently a member of the National Steering Committee and was the key person introducing their program, their software system around the country.
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    Additionally, our colleague, Congressman Boehlert, Chairman of the Water Resources and Environment Subcommittee, has been very active on the National Steering Committee of Operation Respond.

    Last month, Operation Respond installed two sets of their important software in my district. The acronym is OREIS. The installations were made possible through the donations of Norfolk Southern and CSX Railroads. This follows efforts by Congressman Rahall and his district as well, I might point out, to have this installed.

    Now, within minutes of an accident involving rail, car, or trucks, emergency respond teams can verify the shipping contents by using the OREIS software. Now emergency responders have speedy access to accurate information enabling them to respond more quickly and effectively.

    If I could, as I describe just briefly my propose legislation, Mr. Chairman, let me compare a chemical plant to the situation you see out in a rural area once a product leaves the chemical plant. A chemical plant is a contained environment. It has procedures in place. It has trained personnel. It usually has an emergency response team on site, 24 hours a day. Something happens in that plant, they can button it down immediately.

    It is a lot different when that tanker truck or that rail car is heading out through a rural area, particularly in a mountainous area where there may be people living at mountain hollows and the only way out of that hollow is across the tracks. If those tracks are blocked by a hazardous materials accident, tragedy can happen.
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    That is why yesterday I introduced H.R. 2817 establishing a pilot program through the Federal Railroad Administration to assist in establishing local or regional response teams in rural and isolated mountain areas with rail corridors carrying a high volume of hazardous material. This program would establish a Federal commitment to enhance local emergency response. The legislation would establish competitive grant selection process in four different regions of the country and is determined by the administrator of the Federal Railroad Administration. It is a 3-year pilot program, and I am seeking $2 million over the course of the 3 years to be equally divided among the four grantees. The administrator shall consider the grantee's ability to obtain financial resources from non-Federal sources, and each grantee will assist the area communities in setting up regional response teams.

    The regional response teams would be made up of emergency responders from various local communities, the fire, rescue, law enforcement, and industry representatives, who would be able to share their increased knowledge of response techniques within their local communities.

    We have some regional response teams already, for instance, in our State, Mr. Chairman, but this would enable in all rural areas of our State, as well as across the country, to begin developing this ability to respond. So it would be just as safe outside the chemical plant as it is inside.

    I thank you very much for your consideration and your hearing this testimony.

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    Mr. PETRI. Thank you.

    Representative Pascrell, welcome.

    Mr. PASCRELL. Thank you, Mr. Chairman.

    Mr. Chairman, I appreciate your affording me this opportunity to testify before our subcommittee on this very important matter, and I will keep my testimony brief. This is a matter that I have had firsthand experience with in the past few weeks, one of the great concerns to me and the people of my district.

    On October the 20th of this year, a truck carrying hazardous materials caught fire while traveling on Interstate-80 in Paterson, New Jersey, causing nearby residents and businesses to be evacuated. Two Paterson police officers were hospitalized and treated for chemical inhalation as a result of the accident. According to the police, the fire started when two chemicals inside the truck spilled over and mixed together.

    Though the accident was not severe, it certainly would have been much worse had a passing motorist not noticed the fire and forced the driver to pull over. We are also fortunate that the public safety officials were well trained and acted as quickly as they did. In all, we must consider ourselves pretty lucky.

    What truly concerns me about this accident is the revelation that the company that was transporting the waste had been involved in 46 spill incidents at a cost of more than $100,000 since their inception in 1984. Despite this record, their last safety inspection by the Department of Transportation was conducted in 1994, over 3 years ago. Mr. Chairman, we are talking about life and death.
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    When I looked into how this could possibly be the case, I was stunned to learn that there was nothing in current law that requires an annual safety examination of hazardous material haulers. Under existing law, in order for a company to be a hauler-for-hire of hazardous material, they must possess a permit from the Department of Transportation, Federal Highway Safety Administration. Once a hauler obtains a permit, they basically have it in perpetuity. All the must do is reapply every year for a new permit and pay the $300 application fee. There is no automatic safety review for the renewal of a permit.

    The Federal Highway Safety Administration maintains safety records, conducts safety reviews, but it does not do annual reviews. This is wrong. In my estimation, the process is far too lax and off base. The purpose of the legislation we are considering today and the initial law we are reauthorizing is to protect citizens from the risks to life and property that come with the transportation of hazardous material. We cannot expect to accomplish this objective with such a lenient safety inspection policy. No matter how well trained our emergency response teams are, they are not as effective as are pro-active measures that prevent accidents from happening in the first place.

    The legislation I have introduced, H.R. 2806, that I am asking this subcommittee to include in the reauthorization bill, is based on a common sense belief. The bill is very simple. It amends the Hazardous Materials Transportation section of the U.S. Code to require a yearly safety review. A company will not be able to renew its permit to transport hazardous materials unless the Department of Transportation determines that the hauler is willing and able to meet certain safety standards and that they have met them in the past.

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    I think this approach is eminently fair and is in line with the spirit of the Hazardous Materials Transportation law. It should also be noted that the enactment of this legislation would not create a new bureaucracy. The Department already reviews permits every year. It already maintains safety and transportation data on haulers, and it also conducts periodic safety reviews. This legislation would only make the safety reviews more regular and obviously more frequent.

    Once again, I appreciate having this opportunity to testify and urge my colleagues to join me in support of this critical public safety initiative.

    Mr. Chairman, in conclusion, when one looks at the number of hazardous material incidents on our highways in 1996, and when I look at what has happened in New Jersey, I think that this is an immediate problem that not only the public should be aware of, but that we should take action on.

    Thank you, Mr. Chairman.

    Mr. PETRI. Thank you. Thank you both.

    Are there questions for either of these witnesses?

    Mr. Rahall?

    Mr. RAHALL. I have no questions, Mr. Chairman. I just want to commend both gentlemen for relaying their hands-on experience with how vital and how important this issue is. I think what Representative Wise has referred to is certainly important to this committee and our deliberations, and I commend him for his leadership as well, because we have operation this Respond and tried it in my district. It is something we feel very good about, and all the parties involved feel very good and it would be lifesaving in times of an emergency.
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    Mr. WISE. If I may respond, Mr. Chairman, Congressman Rahall, of course, is the one who introduced, I believe, in Mercer County, Operation Respond, and happily, now with his efforts and assistance, we are installing this in other counties, and also because of your efforts on the steering committee, Operation Respond for the first time installed, in effect, Statewide for those counties, those rural counties that may not be able to handle the software right now, but at least they now have a toll-free number they can call in and within 2 minutes identify what is in that tank car. So we want to thank you very much, too.

    Mr. RAHALL. Exactly. And we are going to hear further, as it is slated in our day as well, from Dale Everitt who is the vice president of operation Respond.

    Mr. PETRI. Representative Franks, go ahead.

    Mr. FRANKS. Mr. Chairman, I want to thank Congressman Pascrell for bringing this issue to our attention as well.

    The accident that he cited on Route 80 near Paterson is merely symptomatic of incidents that could occur anywhere throughout our State. We have the most densely populated State in the Nation, with a large network of interstate and major State roadways. This issue is key to our public safety, and I want to thank you for bringing it to our attention.

    Mr. PETRI. I drove the New Jersey Turnpike for years. I could never understand why it was called the Garden State, and then I got back off it and it is a beautiful State.
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    I would like to thank you both. Mr. Pascrell, especially, your testimony points out an aspect of a problem that others are going to be addressing later from a little different angle because they are arguing that they have never had an incident. There is no reason for them to have to be involved in all of this, and probably, that is the other side of the same coin, in that if we can concentrate and focus the resources where there is likely to be a problem, since in the world there is not infinite resource, we will have trouble funding the budget of the agency, anyway. If we can limit the scope of what they are doing to the most important things, they can use their 35 inspectors more efficiently or maybe get more inspectors because they have less clerks handling paperwork that is really not necessary.

    So we look forward to working with you to see if we can do a better job of focussing on people like the one who had 40 spills and yet really had not had a hands-on inspection for 3 or 4 years.

    Mr. PASCRELL. Mr. Chairman, last year, there were 14,000 hazardous material incidents on U.S. roads, rural, suburban, and urban areas. I think one of them is one too many, and we encourage almost—without doing inspection of these haulers and the trucks that are moving from coast to coast—we are almost increasing that opportunity of a major, major problem.

    Some of the chemicals, for instance, and materials that are on these vehicles, those public officials who are responding to situations, they need to know immediately on the mixture of chemicals what is happening, and that is why you see evacuation many times because we do not know how chemicals are going to be missing and what will be produced.
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    This in densely populated areas, as well as areas where there are very few people living. It seems to me, we need to address it.

    Mr. PETRI. Thank you. Thank you both for coming.

    Mr. PETRI. The first panel is Ms. Kelly S. Coyner, who is the acting administrator for the Research and Special Programs Administration of the U.S. Department of Transportation, and she is accompanied by George Reagle, who is the associate administrator for Motor Carriers of the U.S. Department of Transportation. We welcome you both and look forward to your presentation, Ms. Coyner.


    Ms. COYNER. Good morning, Mr. Chairman and members of the subcommittee. I am Kelley Coyner, the acting administrator of the Research and Special Programs Administration, with me today is Mr. George Reagle, the Federal Highway Administration's associate administrator for Motor Carriers, who is available to answer your specific questions about Federal highway programs. Thank you for inviting us to join you today. I ask that my written statement be submitted in full to the record.

    As Secretary Slater has said many times, safety is the Department's highest priority. This is especially true in our hazardous materials program. The hazardous materials program has been built around four basic principles: good, common sense safety standards; promoting solid understanding in the community about those safety practices; enforcement against those who refuse or neglect to comply; and training to ensure safe responses in the event of an incident.
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    I want to address today several key developments in our hazardous material program and certain aspects of the administration's hazardous materials reauthorization proposal.

    As required by Congress, we issued a final rule applying our safety standards to intrastate highway shipments of hazardous materials. This rule brings many companies under Federal regulation for the first time. It also contains common sense provisions that exempt small businesses, farmers, and others where there is no significant impact on safety.

    To help ensure compliance with this rule, we have developed a communications plan to get information in the hands of carriers and shippers who have intrastate operations.

    Working with the Federal Aviation Administration after the ValuJet crash last year, we have made significant improvements in air transportation safety. We prohibited oxygen generators as cargo aboard passenger-carrying aircraft. We proposed to ban oxidizers on passenger-carrying aircraft, and we have moved quickly to hire new safety inspectors to focus on air carrier issues.

    We are improving the safety of international shipments by ensuring that other countries abide by the same safety standards as U.S. shippers. Ensuring uniform international standards also promotes trade for U.S. businesses by removing inconsistent packaging, labeling, and other requirements from international transportation systems.

    We are also working to improve the safety of the propane delivery industry, an issue I know is of vital importance to this committee.
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    I think we have come a long way to developing a solution that meets the needs of industry and ensures safety for our communities and the workers in that industry. I am confident that we can continue working together to resolve these concerns, but I want to emphasize that it is important that we do so quickly.

    As recently as September, a propane delivery truck in North Carolina spilled some of its contents which ignited and severely burned the driver. He subsequently died. Although the incident is still under investigation, there are strong indications that a remote control shutoff device, as provided for in our rulemaking, might have saved his life. This is a device which can cost as low as $125 and, on average, about $250.

    The second key element for safety is to ensure that shippers and carriers understand safe transportation practices. This is particularly important for small businesses that may ship hazardous materials infrequently. Following the ValuJet crash last year, we expanded our training and public education efforts targeted at small shippers in the aviation field.

    We will continue to work more closely with States and industry through our Cooperative Hazardous Materials Enforcement Development program, known as COHMED. This program targets information to businesses affected by our intrastate rule and shippers of hazardous materials by air. COHMED has long provided cost-effective training to State and local officials and members of industry.

    I am particularly pleased to report that a few weeks ago, we sponsored the largest ever COHMED session and that it included the greatest number of industry participants. We have taken steps to have greater information systems to provide easier access to hazardous materials information, including incident data through our hazardous materials information system. This data is used by other modes within the Department, State agencies, other Federal agencies, industry, and the public to target areas of particular safety concern to them.
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    We have also expanded our hazardous materials information center capabilities to more effectively disseminate compliance information by way of phone. Through the Internet, we are now offering our customers direct electronic access to rulemaking information to encourage comments and increase participation in the process of setting standards.

    In our reauthorization bill, we are proposing to allow States to use up to 25 percent of their hazardous materials planning and training grant funds to assist small businesses with regulatory compliance. Unfortunately, no matter how much technical assistance we provide, there will always be people who refuse to comply.

    Our reauthorization proposal includes several important enforcement provisions. The proposal specifically authorizes DOT to issue emergency orders to stop dangerous shipments. Under current law, an inspector does not have the legal authority to take a truck out of service if it is carrying drums that are leaking hazardous materials, even if the same inspector can remove the truck from service for having faulty brakes.

    This concludes my opening statement, Mr. Chairman. I am pleased to answer any questions you may have.

    Mr. PETRI. Thank you very much.

    Are there any questions?

    Mr. Rahall?
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    Mr. RAHALL. Yes, I do, Mr. Chairman.

    Mr. PETRI. Great.

    Mr. RAHALL. Thank you very much, Administrator Coyner, for your testimony.


    Several industry witnesses, the so-called interested parties, today will take issue with an administration proposal to broaden or, in RSPA's terms, clarify DOT's inspection and enforcement authority. These witnesses will maintain their concerns are not entirely self-serving, but are also premised on how this proposal might adversely affect RSPA itself; for example, whether DOT inspectors are adequately trained to protect themselves from exposure when opening a package.

    In your testimony, you briefly touched upon this proposal, but my question remains why, after all of these years of implementing the HAZMAT programs, are these issues surfacing now. For example, they were not raised during our 1994 reauthorization.

    Ms. COYNER. Sir, they are occurring at this time primarily arising out of the review that the Department undertook with the FAA and RSPA after the ValuJet accident.

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    RSPA has long believed that we had the authority to open these packages and provided our inspectors training at the Transportation Safety Institute in order to ensure that they engage in safe practices. The FAA believed that it needed to have clarification of that authority, and in particular, we had concerns about the liability individual inspectors would have without explicit statutory authority, and that is why it arises at this particular time.

    I know that there are several witnesses who have concerns about this issue, and I am pleased to tell you that we have been working with them closely. I think that we are very close to some technical language that will address some of their concerns, and I hope that they feel the same way.

    Mr. RAHALL. Okay. Well, I am glad to hear that.

    Let me ask you, Mr. Reagle, a question, and I appreciate your being with us this morning as well.

    Mr. REAGLE. Thank you, Mr. Rahall.

    Mr. RAHALL. The statutory deadline for implementing a uniform program under Section 5119, passed almost a year ago, does FHWA not recognize it has the statutory responsibility to fulfill the requirements of Section 5119? In other words, have you devised a way to find the word ''shall,'' means ''maybe?'' What in your interpretation does the word ''shall'' mean?

    Mr. REAGLE. Thank you for the opportunity, Mr. Rahall, to give you our——
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    Mr. RAHALL. You may have heard my opening statement.

    Mr. REAGLE. ——point of view on this issue.

    First of all, let me give you some history. The report that we got from the Alliance arrived, I believe, in April, a year ago. It was our view that there are a lot of issues with respect to this, issues of us going in and preempting States. It is an issue of interstate commerce, as well as safety.

    So what we did was publish their report and seek comments, which I think from a public policy point of view you would agree would be the right approach. We did that. We extended the comment period. We made the report available on the Internet. We did everything we possibly could to get comments, in my view.

    We got 20 comments to the Federal Register notice publishing this report. Twelve of those were in favor of the proposal, but there were eight opposed to it. I think it is really important for the committee to understand a couple of things. For example, the State of Idaho, the State Police in Idaho were opposed to it. In Michigan, we got two comments from two different State agencies, one for it and one opposed to it.

    I think before we move forward on this issue, we need to clarify some issues. We need to find out what the benefits of the program are and what the costs are, and we are in the process now of doing a couple of things which I think are very important.

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    One is we are going to send a letter to each Governor, giving them a copy of the report and asking for their specific comments on it.

    Number two, we want to ask some more questions in the Federal Register notice vis-a-vis what the costs are and what the benefits are. I think these are really important issues to examine before we go in and attempt to preempt possibly 46 States, Mr. Chairman.

    I would also say, finally, that I think under the committee's auspices, if we could bring all the parties together and sit down and talk about our side of the issue as well as theirs, I think we could reach resolution on this, and I would ask you to seriously consider that.

    Mr. RAHALL. Well, do I have your commitment, then, that you will implement this program once you have this additional info and perhaps we gather the parties together?

    Mr. REAGLE. Let me say this, Mr. Chairman. From our perspective, I would want to sit down with you. If we find that the costs exceed the benefits or that the safety benefits are not there, I would want to sit down with this committee and make that information available to you, and then we ought to decide whether we are going to move forward.

    I think there is also part of that statute that says, if I remember correctly, unless 26 States have implemented all of the recommendations, the Secretary is not required to move forward. So I think we need that information. I hope you would agree with me that we need that information before we move forward.
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    Mr. RAHALL. Well, I am not sure that we agree on that last interpretation, but, anyway, we will discuss that further.

    Mr. REAGLE. Okay.

    Mr. RAHALL. Let me ask Administrator Coyner, in my limited time left, one question.

    We had a provision to the Public Sector Training Grant program in 1994 requiring the Secretary to submit a report to Congress no later than September 30, 1997, on the allocation and use of training grants. Can you give us an update on the status of the report?

    Ms. COYNER. Yes. We expect the report to be here shortly and——

    Mr. RAHALL. Shortly?

    Ms. COYNER. Shortly. It has been prepared, and we plan to transmit it in the next couple of weeks.

    Mr. RAHALL. Shortly? When is shortly?

    Ms. COYNER. I would not hazard a guess, but I would say in the very near future, sir.
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    Mr. RAHALL. Okay. The chairman wants to know when will we know when it is late.

    Ms. COYNER. I have great confidence in the chairman's ability to discern that time.

    Mr. RAHALL. Okay. I will wait for the second round, Mr. Chairman, for further questions.

    Mr. PETRI. All right, very good. There is a bad sign, a vote on adjournment. So I think maybe we will go over and come back, unless would you like to go? We only have 10 minutes. I do not want to cut your 5 minutes off, Bob. It is up to you.

    Mr. FRANKS. Mr. Chairman, I think I can do it relatively quickly.

    Mr. PETRI. All right, very good. Let us do your round, and then we will vote.

    Mr. FRANKS. Ms. Coyner, I will try to be abbreviated here. I have had a number of conversations with the propane industry, and they are deeply concerned about your rule which went into effect on August the 18th. They have expressed a number of concerns; first, that the immediate implementation of the emergency rule may be impractical because, in some cases, it will require the purchase of new parts and possibly the training of new personnel.
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    Second, it has been brought to my attention that the industry has calculated the cost of compliance of this rule in excess of perhaps $400 million, a figure far, far higher than RSPA has estimated in terms of the cost of compliance, and moreover, they are concerned that there was insufficient evidence of the problems that the emergency rule seeks to address. Let me distil it into two quick questions.

    First, how many incidents did RSPA rely upon to develop this rule, specifically involving bobtail vehicles where the excess flow equipment failed to operate, which is the essential purpose of your emergency rule?

    Ms. COYNER. If you would indulge me for a moment, I think one of the things important to clarify about that rule is that it is a clarification of a rule that we have had in place for 30 years. The excess flow valve requirement has been in place for that period of time, as well as the attendance requirement.

    The answer to your question in terms of incidents is that the incident which brought to our attention the excess flow valve feature was not working because of the use of pumps was the Sanford, North Carolina incident. It was not based on a number of incidents involving bobtails, but I think what is important, and we are very cognizant of, is that our rules do not get applied to intrastate commerce, and the bobtail operates primarily in intrastate commerce. So we are concerned that we are missing a large category of incidents that were not captured by our data because our rules only applied to interstate commerce.

    Mr. FRANKS. One follow-up, Madam Administrator. Why was it necessary to make these rules effective immediately as opposed to having a phase-in requirement and some more flexible time period for implementation?
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    Ms. COYNER. The rule either allows operators to comply with our existing rules on attendance or it allows them to use the remote control device, and the remote control device, I think, is where we find a difference of opinion about the cost of the rule. That is why we come in so much lower when you factor in that piece of it.

    The approach that we take in terms of having flexibility in implementation is that—and I believe that Mr. Reagle can confirm this—is that in our inspections, we are issuing notices to comply rather than taking enforcement action because we recognize there is a time that is needed to comply.

    Mr. FRANKS. Thank you, Mr. Chairman.

    Mr. PETRI. Thank you.

    We have about 7 minutes for this vote. The subcommittee will adjourn until 11:00—or recess until 11:00.


    Mr. PETRI. The subcommittee will come to order.

    Another round of votes has occurred on the House floor, another motion to adjourn, but we do have about 7 or 8 minutes, and I know Mr. Bachus had several questions. So, if you are willing to take your chairs and respond, we will commence.
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    Mr. Bachus?

    Mr. BACHUS. Thank you, Mr. Chairman.

    Ms. Coyner, millions of Americans rely on propane as their energy source, and thousands of my constituents. So I am obviously deeply concerns by allegations that the regulations recently issued by your agency have left the propane industry with no practical means of compliance for the delivery of propane this winter. So my questions are going to deal with that.

    I have reviewed the testimony submitted for today's hearing by the National Propane Gas Association that your rule addresses the possibility that passive emergency discharge control equipment on cargo tank vehicles, bobcats—what is it?—bobtails?

    Ms. COYNER. Mm-hmm.

    Mr. BACHUS. Bobtails.

    I am in the construction industry. So I know what a bobcat is. So this is a bobtail, but that they may not work properly, and I certainly share that concern.

    But in this case, it seems to me like the cure seems worse than the disease because the rules are going to impose millions of dollars worth of additional cost on consumers with little or no gain in safety, as I read them, and perhaps even greater damage.
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    Let me first focus on the bobtail trucks and the kind of tank trucks that are used to deliver propane. Is it true that your new propane regulations require bobtail deliveries to be done in one of three ways?

    I wrote this down. One is either the use of improved emergency discharge control equipment on the truck; two, a qualified operator within arm's reach of a manual shutoff lever on the truck during deliveries; or, three, the use of remote control device by the operator. Is that correct?

    Ms. COYNER. The one piece of it I would take issue with is the first two pieces are not new requirements in terms of——

    Mr. BACHUS. Oh, I know, but the new regulations include——

    Ms. COYNER. That is right.

    Mr. BACHUS. ——the old regulations.

    Ms. COYNER. That is right.

    Mr. BACHUS. So, basically, you have those three options.

    Ms. COYNER. Right.
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    Mr. BACHUS. Okay. Now, the preamble of your rule, and what I mentioned earlier, acknowledges that the improved passive emergency discharge control equipment is still—what would I say? Under development?

    Ms. COYNER. Well, I would not say under development, but in testing and determination about whether or not it can be practically worked, we have had a couple of folks come forward with——

    Mr. BACHUS. Yes. What I am referring to is a Federal regulation, 62 Federal reg at 44043, which seems to indicate that they are under development or there are some——

    Ms. COYNER. Well, there has long been the excess flow valve which works if it is not overridden by a pump, but the new passive approach, we recognize is not currently available, and regulation of that would be an undue hardship just to say you have to have that work.

    Mr. BACHUS. Right. So, really, we have——

    Ms. COYNER. So we have accepted alternatives that are manually instead of automatically——

    Mr. BACHUS. So there are basically two other options, though——
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    Ms. COYNER. Mm-hmm.

    Mr. BACHUS. ——other than the——

    Ms. COYNER. That is right.

    Mr. BACHUS. ——one that you all say is still under development.

    I would like to focus on them. One is your arm's-reach requirement. It plainly requires the attendant to stand by the vehicle rather than at the customer tank during unloading. Is that correct?

    Ms. COYNER. Well, it requires that someone be within reach of that, and that it does not limit—in other words, you could have a second attendant.

    Mr. BACHUS. Okay. Somebody——

    Ms. COYNER. It does not need to be someone who is the carrier. It could be a customer, basically.

    Mr. BACHUS. But somebody—somebody has to stand——

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    Ms. COYNER. That is correct. Mm-hmm.

    Mr. BACHUS. And there is a requirement that the truck be located at least 10 feet from the customer's tank during unloading.

    Ms. COYNER. Mm-hmm.

    Mr. BACHUS. So—and the preamble states that the attendant must assume a position near the cargo tank motor vehicle that is within arm's reach of the emergency discharge control.

    Ms. COYNER. Yes, sir.

    Mr. BACHUS. So that requires them to be at the vehicle.

    Ms. COYNER. That is correct, sir.

    Mr. BACHUS. Okay. Now, your rule also—if you are doing a remote control, if you are using remote control, your rule requires an attendant using a remote control device to maintain an unobstructed view of the vehicle itself during unloading.

    Ms. COYNER. That is correct.

    Mr. BACHUS. And your preamble acknowledges that it is frequently impossible to maintain an unobstructed view of the vehicle from the customer tank.
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    Ms. COYNER. That is correct.

    I think what is important to remember here is that what we are talking about——

    Mr. BACHUS. But, I mean, that is what the preamble said.

    Ms. COYNER. Yes, sir. That is right.

    Mr. BACHUS. Well, let me ask you this. So the remote control option will also require the attendant to step away from the customer tank during unloading, won't it?

    Ms. COYNER. As I understand the rule and the bobtail operation, there are times when a bobtail may be—have a hose that wraps around a particular kind of situation, and what this would allow is for the attendant to stand at the corner where that turn is. Now, that may not accommodate everyone's particular concerns in the use of the remote device, but we have endeavored to try to address a variety of different configurations in order to have an unobstructed view of the tank.

    Mr. BACHUS. All right. And I know that there are all of these things, but let us just talk in a practicality. The preamble states that the attendant must assume a position that ensures an unobstructed view. So, in some cases, he is——

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    Ms. COYNER. We require them to have——

    Mr. BACHUS. ——going to have to step away——

    Ms. COYNER. ——an obstructed view——

    Mr. BACHUS. ——from the——

    Ms. COYNER. ——so that they can activate——

    Mr. BACHUS. I'm sorry.

    Ms. COYNER. ——we require them to have an unobstructed view so that they can see if there is a failure because——

    Mr. BACHUS. Oh, I am not talking about why.

    Ms. COYNER. ——it is manually operated.

    Mr. BACHUS. I am not debating the why or the wherefores. I am just saying that it requires them to—they must assume a position that ensures an unobstructed view.

    Ms. COYNER. That is correct, sir.

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    Mr. BACHUS. So that will sometimes require the attendant to step away from the customer tank during unloading if they are using a remote control.

    Ms. COYNER. I can envision a situation where that would be the case if there is only one attendant.

    Mr. BACHUS. Sure, okay.

    Now, knowing this, the testimony by the Propane Gas Association, it states that such a practice would be unsafe. In other words, they say the best place to guard against an inadvertent release from a faulty connection or ensure against overfilling the customer's tank is right at the customer's tank. Do you disagree with that?

    Ms. COYNER. I think that where we disagree is that we believe that there is a need——

    Mr. BACHUS. I mean, do you disagree with that?

    Ms. COYNER. I do not think that is the issue, respectfully, sir.

    Mr. BACHUS. Well, but I am asking you. It is the issue to me and——

    Ms. COYNER. Well, I would say, respectfully, sir, I have not seen their testimony and I am not familiar with it.
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    Mr. BACHUS. No, I am telling you——

    Ms. COYNER. I think there are issues that——

    Mr. BACHUS. Well, but let me ask you this. Let me just rephrase it, then. Is the best place to guard against an inadvertent release from a faulty connection or ensure against overfilling the customer's tank right at the customer's tank?

    Ms. COYNER. I think that the——

    Mr. BACHUS. No. I mean——

    Ms. COYNER. Our experience with the kinds of safety concerns that we have——

    Mr. BACHUS. No, I'm sorry. I am sort of here representing my constituents. So let me just talk for my constituents.

    Ms. COYNER. I understand. I understand that.

    Mr. BACHUS. Is the best place—is the best place to guard against these things right at the customer's tank? I mean, can't Government agencies give us a yes or no? I mean, it has to be—you know, you are telling these people either do it or not do it. I mean, can you give me a yes or no?
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    You all have propounded these regulations. I have not. So I am not trying to use them as a trap.

    Ms. COYNER. What I would like to do is give you a more thoughtful answer——

    Mr. BACHUS. Well, I know—I know you do not want to answer the question, but——

    Ms. COYNER. ——and I would be glad to provide additional information for the record——
    [The information supplied follows:]

    [Insert here.]

    Mr. BACHUS. But could you answer my question?

    Ms. COYNER. ——with respect to that.

    Mr. BACHUS. Could you answer my question?

    Mr. PETRI. Could I just interrupt and say you can think about the answer and then we will come back.

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    Mr. BACHUS. Well, can—I have you—answer that, yes or no?

    Ms. COYNER. No, sir.

    Mr. BACHUS. We will adjourn for another—recess for another 15 minutes to go over and vote, and you may want to give a more complete answer at that time. So we will be back at 11:25.


    Mr. PETRI. We will recommence.

    I notice that we are starting at 11:25. I know Mr. Bachus just had a question or two, and I cut him off. There will be another round, but if you would like another minute or two until 11:25 and then we will go to the next question.

    Mr. BACHUS. Okay. What I will do is—will Ms. Coyner be around for another round?

    Mr. PETRI. Yes.

    Mr. BACHUS. Okay. Ms. Coyner, what I would like you to understand about why I feel so passionately about this issue, I have constituents who have written me and say, ''I cannot pay co-pay on my medicine. It is $10 a month, and I cannot afford it. So I am going without my medicine,'' and it is harming their health. It could cost them their lives.
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    So, if we pass a regulation here which increases their propane cost, which to many of them is their largest expense, then they are going to suffer.

    I talked to another lady—while I was on the State school board. I asked her why she could not join the PTA, and she said she did not have the $20 to join; that she had wanted to come, but she did not have the $20. Now, in the South, most of the people that are served that are going to be most affected are on the rural routes. They are living at or below poverty level now. There is no margin of error, and any regulation that—so that is why I am really not so interested in the history of the regulation or even the fact that we tried to work out a compromise. I am interested in a regulation that is going to require two people on a truck and it is, therefore, going to hurt some folks in my district. It is going to make life harder for them, and I think that Government has a responsibility to those people.

    Ms. COYNER. Well, I——

    Mr. BACHUS. And, you know, that is why I say to you, can't you as an agency tell me that the best place to guard against an inadvertent release from a faulty connection or to ensure against overfilling the customer's tank is right at the customer's tank? I mean, could you maybe—just yes, no, or even ''I don't know''? I will accept ''I don't know.''

    Ms. COYNER. The answer is no, that is not the best place, and the reason is because——

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    Mr. BACHUS. Okay. No, that is——

    Ms. COYNER. ——the tank is full.

    And I appreciate your concerns. I think that we are similarly concerned about the implications of the cost, and I know that you want such——

    Mr. BACHUS. No, no. Wait. Let me say this. You have answered my question.

    Ms. COYNER. Okay, very good.

    Mr. BACHUS. And I just want—you know, so——

    Ms. COYNER. Very good.

    Mr. BACHUS. ——you say no.

    Ms. COYNER. That is true.

    Mr. BACHUS. That is not the best place, is at the customer's tank.

    Now, on behalf of your agency, are you prepared to say that an operator being away from the customer's tank when the gas is turned on so that he can maintain an unobstructed view of the truck is safe? Is it safe practice?
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    Ms. COYNER. I am not prepared to say that.

    Mr. BACHUS. Well, so you are not prepared to say that when he leaves that customer's tank, that that is a safe practice.

    Ms. COYNER. What I am prepared to say is that the most important place for them to be is by the truck if there is a separation.

    Mr. BACHUS. All right. Well——

    Mr. PETRI. Spencer, I do not mean to be cutting you off, but there will be another round. There are a couple of other members that did want to——

    Mr. BACHUS. Well, let me ask this one.

    Mr. PETRI. Okay.

    Mr. BACHUS. It is unsafe for them to leave the customer's tank, then?

    Ms. COYNER. I know that you would like for me to give a yes or no answer.

    Mr. BACHUS. Yes.
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    Ms. COYNER. I think from a technical perspective, I do not think——

    Mr. BACHUS. Well, and only because, you know——

    Ms. COYNER. ——that is the helpful——

    Mr. BACHUS. ——the people need a yes or no answer on the regulation. Do you see what I am talking about?

    Ms. COYNER. I think that I, respectfully, have to take a different position. I think that the responsibilities that we both share is making sure there are technically sound approaches to safety, and our principal concern has been making sure that there is an ability to see the tank if there is a separation at that place because we think it is a greater risk.

    That is not to say that there is not a risk at the customer's tank, but it is the truck tank which is full with propane and unloading into the customer tank, and that is the place where we are finding that these fatalities are near risks.

    Mr. PETRI. Ms. Danner?

    Ms. DANNER. Thank you, Mr. Chairman.

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    Spencer, I want to say to you that I quite agree with you. I think that we are looking at something where the unintended consequences are great because it does become heat versus medicine for many of our rural constituents, and I think that all of us serving on this panel know that last year, probably one of the greatest volumes of letters that we received was based on the increased cost of natural gas, and many of us heard about that, but I do have some questions I want to pose.

    I might say that in trying to provide safety to people, we recognize that most accidents in the home occur in the kitchen. So we would build a safer home if we built a home without a kitchen, but we do not do that.

    I have two questions that I would like explicit answers to. The propane industry calculates that the final rule that was approved on August 18th will increase cost for the average propane consumer by 7 cents a gallon, or $63 per year. Do you disagree with this estimate, and do you feel that this extra cost is justified? First, do you disagree?

    Ms. COYNER. I disagree.

    Ms. DANNER. How much will it be per gallon?

    Ms. COYNER. I think that the figure that we have in terms of the remote is about .01 cents, and I want to double check that. That is about—about right. And I would be glad to submit the cost estimates and the basis for that because I think that would facilitate looking at the cost differential.

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    Ms. DANNER. And this study that you reference was conducted by whom?

    Ms. COYNER. This was conducted by the staff at the Research and Special Programs Administration based on the information that we have, explained in the public docket.

    Ms. DANNER. So, basically, in-house?

    Ms. COYNER. Well, yes, it was done by the Department staff.

    Ms. DANNER. So it might not be the most objective view?

    Ms. COYNER. No. I stand by the staff. I think they are very objective and that they present a very balanced view.

    I think that reasonable people differ, and that the figures that you are quoting relate to the cost of putting in a passive flow device that has not been developed yet. I think that what we are focused on is what an interim solution is to make sure that we have cost-effective delivery of propane, as well as having safety for those people who are around the unloading of those particular trucks.

    Ms. DANNER. Well, you know, I grew up in a small town of 700 in mid-Missouri, and we had a propane tank in the back yard. Frankly, we have had no problem.

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    When I hear that basically this is based on one incident, I have some real problems with that, but because time is limited, let me go onto my second question, and please do provide me immediately a copy of this study. I do not want to have to phone again for it, please.

    I understand that DOT has estimated the cost to the industry of requiring additional delivery attendants to be $237 million per year, and that the benefits to society may be as low as $322,000. So we are talking $237 million to benefits of $322,000. If these numbers are correct, why do you believe that the benefits justify such cost because here, we have been talking these past few years in Congress about cost-benefit analysis?

    Ms. COYNER. I apologize. I am not sure what numbers you are referring to, but I would be glad to provide a detailed answer for the record.

    Ms. DANNER. And, once again, is that an in-house estimate?

    Ms. COYNER. What is an in-house estimate?

    Ms. DANNER. Something that the Department of Transportation has done with its own staffers?

    Ms. COYNER. The cost-benefit analysis that we have conducted with the staff at the Research and Special Programs Administration, we have also asked the R&D staff at the RSPA Volpe Center to assist us with evaluating this information.

    Ms. DANNER. Because it has become clear to me in my years here in Congress that results are often skewed depending on who asks for these studies. So please provide me with that as well——
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    Ms. COYNER. I would be delighted.

    Ms. DANNER. ——and we will look at some of the other studies that have been done as well.

    Thank you, Mr. Chairman. I appreciate it.

    Mr. PETRI. All right. Representative Hutchinson?

    Mr. HUTCHINSON. Thank you very much, Mr. Chairman.

    I wanted to ask you a couple of questions in a different area. It is my understanding that distilled spirits are currently the only substances that are intended for human consumption that are regulated as a hazardous material for transportation purposes. Am I correctly stating it?

    Ms. COYNER. No.

    Mr. HUTCHINSON. All right.

    Ms. COYNER. One of the ones that is a more common one, actually, that was subject to a great deal of controversy several years ago is that edible oils at a certain volume are also regulated, as well as a number of other ingredients that go into foods, though distilled spirits is not alone in being regulated as something that is part of human consumption.
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    Radiopharmaceuticals are also frequently consumed in terms of taking them orally, in terms of medicines, and they are something that we regulate as well.

    Mr. HUTCHINSON. The distilled spirits, they are presently regulated by you. Are they in the lowest-risk category for flammable materials?

    Ms. COYNER. They may be in one of the lowest class categories, but the distilled spirits, the ones particularly that have a very high level of alcohol, have one of the lowest flash points of flammables on the road.

    Mr. HUTCHINSON. How are they regulated, though? Do you have different categories of regulations? At what level are they?

    Ms. COYNER. I believe it is based on the level of alcohol.

    Some of them fall in the lower class categories, and some of them fall in the higher class ones.

    Mr. HUTCHINSON. Now, distilled spirits are also heavily regulated by the Bureau of Alcohol, Tobacco, and Firearms?

    Ms. COYNER. They are regulated for different purposes. We regulate the transportation of distilled spirits.

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    Mr. HUTCHINSON. And is there some duplication in those regulations from your viewpoint?

    Ms. COYNER. I do not think so, but we are always open to taking a look at making sure that the regulations are consistent and do not cause undue burdens.

    Mr. HUTCHINSON. Has there been any studies or review of the regulation to see if there is any duplication with BATF?

    Ms. COYNER. We have had a general review of all our regulations in the last year and a half, and we have had extensive outreach sessions in that regard. We have not had one that specifically focuses on the distilled spirits issue, but as I said, we would be glad to take a look at that particular issue.

    Mr. HUTCHINSON. If a change was made in the regulatory status, in other words, if we believed that they were adequately covered by, say, BATF for the protection of the public, would that require a regulatory change or a statutory change?

    Ms. COYNER. I think that I am not as conversant in the BATF regulations, but——

    Mr. HUTCHINSON. I am speaking from your standpoint.

    Ms. COYNER. ——I think from our standpoint, we would find it unlikely that they regulate the transportation of the distilled spirits.
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    Now, if there were packaging that met our requirements, we would clearly look to eliminate the duplication. We would not require statutory change.

    Mr. HUTCHINSON. All right. If you wanted to take your regulatory burden off of distilled spirits and leave it with BATF, you could do that by regulation?

    Ms. COYNER. We could adopt BATF's standards if we felt like that would result in safe transportation of distilled spirits.

    Mr. HUTCHINSON. I would encourage you to review that. I am just concerned about the duplication of paperwork and burden and the time that it is taking because you have two Federal agencies regulating a product that at least I believe does not lead to explosion, radiation, corrosion, and some of the other difficulties of more severe hazardous waste.

    Thank you very much, and I thank the chairman.

    Mr. PETRI. Thank you.

    Mr. Cook?

    Mr. COOK. Yes. I want to thank the chairman for holding this hearing today.

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    I have a question for Ms. Coyner that I would like to submit in writing—and at your earliest convenience to get an answer back in writing. I would also ask for unanimous consent to submit my statement for the record today.

    Mr. PETRI. Without objection, so ordered.

    [The statement and questions of Mr. Cook follow:]

    [Insert here.]

    Mr. PETRI. Mr. Pickering?

    Mr. PICKERING. Thank you, Mr. Chairman.

    Ms. Coyner, I appreciated you coming by my office last week, as we went over some of the issues. I, too, share concerns, as Mr. Bachus and other members on the committee, on the issue relating to propane. In a rural district like mine in Mississippi, this does have a possibly severe impact from the cost and those that use that as a heating fuel and other fuel, that costs associated with the regulation. What I would like to do is try to work with you to see if there are alternatives.

    Let me ask a couple of process questions. You have promulgated the final rule, but there is a period of reconsideration. Is that correct?

    Ms. COYNER. That is correct.
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    Mr. PICKERING. During that period of time, is there any alternative-based solution to the current one that you all are considering that could provide either a technology solution or some other solution that would be more cost effective in the approach to providing the safety objective that we all share?

    Ms. COYNER. Let me clarify your question so that I make sure I understand that what you are asking. Is it that are we looking at other alternatives to our current rule that is effective?

    Mr. PICKERING. That is correct.

    Ms. COYNER. Yes, we are.

    Mr. PICKERING. Could you outline some of those, or some of the possible advantages, and have you done any preliminary work on the costs associated with those alternatives?

    Ms. COYNER. The alternatives that we are focussing on over the course of the next 18 months are those that would provide a passive or an automatic shutoff as opposed to one that has to be manually implemented, and if you are willing, I would like to submit additional information on the record in that regard.

    Mr. PICKERING. Would that offer some cost savings?

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    Ms. COYNER. I think that in the long term, the question is on what basis you are making the comparison. I think that we would certainly adopt an approach which had a cost benefit overall. I think that there would be costs associated with it, and what we would look at is a reasonable period of time to reach compliance and a reasonable retrofit schedule.

    Mr. PICKERING. I would just urge the Department and you to continue to work with the industry, with the committee, and those affected by this to see if we can find a more appropriate alternative during that period of review.

    Ms. COYNER. I appreciate that. Thank you, sir.

    Mr. PETRI. Representative Emerson had to go to attend another hearing, but she wanted to associated herself with the concerns expressed by Mr. Bachus and several others. They are similar to hers and also affect a lot of the people in southern Missouri that she represents.

    Mr. Rahall?

    Mr. RAHALL. Thank you, Mr. Chairman.

    Administrator Coyner, let me just follow up on the supplemental grants I was asking you about in my earlier round of questions.

    We added a supplemental grant program in 1994, as you are aware, as part of the public sector training grants for training fire fighters. Can you tell me what has occurred under that supplemental grant program to date, in particular the level of funding that has been granted under it? And please note I am not referring to any grants which may have gone to the fire chiefs. Rather, I am speaking to the fire fighters, and as you know, the supplemental grant program refers to employee organizations.
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    Ms. COYNER. The fire fighters received a supplemental grant of $250,000, three funding cycles ago. It is my understanding there has not been an additional application by the fire fighters under that particular program.

    I think it is also important to note that the grants program has not been funded at the levels anticipated because we have not been successful in the fees that we had hoped to receive. When the legislation was passed, as you know, it allowed for collection of fees up to $8 million, and we have never collected more than about $7 million in fees.

    Mr. RAHALL. Never collected how much? I am sorry.

    Ms. COYNER. More than about $7 million in fees.

    Mr. RAHALL. Have those gone to the fire fighters?

    Ms. COYNER. Well, $250,000 went to the fire fighters in fiscal year, I believe, 1995, and it is my understanding that they have not made an additional application, but the fire chiefs did, in fact, make application.

    Mr. RAHALL. Okay. Well, we may hear a response on that later.

    Turning to what I will now call the Hank Hill issue involving propane, it seems that one of the industry's concerns involves the availability of these emergency remote control devices, as well as their contention that even with such a device in place, a second attendant would still be necessary.
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    At a RSPA briefing for congressional staff this past Tuesday, the comment was made that these emergency remote control devices could be purchased at Radio Shack. Now, is that correct? Are these devices so readily available that you can go to your local Radio Shack, pick one up, and install it with relative ease? Because I have looked through their catalogue here and not seen one.

    Ms. COYNER. I think that the point was that the technology in terms of a remote control-type device, the transmitter is available at Radio Shack.

    I was not present at the briefing, but I think that it is fair to say that the information that we have received in the docket is that remote control devices can be found at an average of from $250 to $2,000, and I understand from the industry that their experience is probably closer to about a thousand dollars, and that they are available. In fact, they are being installed in a number of vehicles.

    Mr. RAHALL. All right. Let me ask you one final question on your propane rulemaking. Are we dealing with a moving target here?

    Ms. COYNER. I am not sure I understand the direction of your——

    Mr. RAHALL. In other words, RSPA has indicated further rulemakings in this area. So I guess the concern is——

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    Ms. COYNER. Yes.

    Mr. RAHALL. ——that if industry complies with what you are now requiring, goes through the expense of complying, are they going to be made to meet some other completely new requirement in the future or just a year or two down the road?

    Ms. COYNER. The balance that we attempted to strike this summer was to give an interim level of safety through a manual shutoff of the valve, and in fact, we have already had another fatality in September where there was not a manual shutoff of the valve. The individual ran into the propane where the hose had separated at the tank.

    We do not now have identified a passive or automatic shutoff device that we feel like we could move forward in a rulemaking. Our approach is that we hope to identify one that will sustain a cost-benefit analysis within about the next 18 months, and that we will then look for an extended retrofit period of time. So we are trying to balance the needs for the industry to continue to deliver propane and fertilizer with making sure that we have safe practices in the interim, and we will continue to work with the industry to identify the appropriate time for retrofit.

    Mr. RAHALL. All right. Let me conclude with one last question. I had almost neglected it—not a question, rather, but a clarification to you, Mr. Reagle, in which we discussed earlier an issue regarding Section 5119, which requires the regulations be implemented by the Secretary on the date—either 90 days after 26 States have stopped the working group's recommendations, or 3 years after those recommendations are made. If either of these thresholds are met, the law compels the Secretary to comply, and as you know, we have passed that 3-year date. So that is what I wanted to clarify in response to what you had stated earlier.
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    Mr. REAGLE. Thank you, Mr. Rahall.

    Mr. RAHALL. Thank you, Mr. Chairman.

    Mr. PETRI. Mr. Bachus?

    Mr. BACHUS. Thank you.

    Let's go back out on that farm, you know, where the widow woman lives. We are standing at the customer's tank. You cannot see the vehicle, the bobtail from there. The regs require you to see the vehicle. Is that correct?

    Ms. COYNER. That is correct.

    Mr. BACHUS. Okay. So you cannot always see the vehicle from the customer's tank. So that would require you to move away from the customer's tank.

    Ms. COYNER. That is correct.

    Mr. BACHUS. Okay.

    Ms. COYNER. You have the one attendant there.

    Mr. BACHUS. Now, the Propane Association says that it is not—and you said it is not always safe, that it is not safe to be away from the customer's tank on certain—if there is—when the gas is turned on. There could be an overflow of the gas. There could be maybe a fault connection. So, I mean, it would be safer to be at the tank.
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    Ms. COYNER. What I said was that I was not prepared to make the absolute statement that I was being asked to make, but, in relative terms, our greater concern is that where the truck is, where the load of propane is being loaded down, and where the source of ignition is.

    Mr. BACHUS. Well, is the agency prepared to say that it is safe to step away from the customer's tank?

    Ms. COYNER. The agency's position, is that if you had to choose between the two, you should be by the truck, where the load is, and it is one that is also supported——

    Mr. BACHUS. Now, wait. You said if you had to choose. If you have only got one person out there, it is not a question of having to choose. They are going to have to choose, and they are fixing to make that choice. Is the agency's position that the choice ought to be to step away from the customer's tank to comply with the regulations?

    Ms. COYNER. The agency's position is that in the kinds of incidents that we have seen, the risk is greater where the tank truck is. The incident that we had in Sanford, North Carolina, which was by a trailer——

    Mr. BACHUS. No, I am not talking about that, but I am just saying——

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    Ms. COYNER. ——with a load of propane out on the ground, and we are lucky it did not ignite.

    Mr. BACHUS. I am just saying that it is okay to step away from the tank. In the agency's position, it is okay to step away from the tank to maintain an unobstructed view?

    Ms. COYNER. If your choice is being able to observe the truck versus being able to observe the customer's tank and you are unloading into the tank, you should be standing with an unobstructed view of the truck and the tank and the hose coupling there.

    Mr. BACHUS. Wait. The hose, the unobstructed view of the truck and of the hose—of the what, now?

    Ms. COYNER. What we are concerned about, the greatest risk is the separation——

    Mr. BACHUS. Okay.

    Ms. COYNER. ——at the truck.

    Mr. BACHUS. All right. If you do not have an unobstructed view of the tank—I mean, of the truck from the tank, can you comply with the regulations by leaving the tank?

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    Ms. COYNER. Which tank?

    Mr. BACHUS. Can you safely leave the tank to observe the truck? Is that a safe practice?

    Ms. COYNER. I believe that I made our position very clear. We believe that the greatest risk is being——

    Mr. BACHUS. No, I am not talking about greatest risk. I am just talking about is there a risk stepping away from the tank.

    Ms. COYNER. I am not prepared to address the issue of the customer tank. What we regulate is——

    Mr. BACHUS. Well, now, wait a minute.

    Ms. COYNER. ——the distribution of propane, and we look at where the greatest risks are.

    Mr. BACHUS. But aren't you promulgating a regulation that will require people to step away from the customer's tank? And the industry say that that is not a safe practice. Are you prepared to say step away from the tank, it is safe?

    Ms. COYNER. We promulgated a regulation which requires them to have an unobstructed view of the truck tank.
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    Mr. BACHUS. Yes.

    Ms. COYNER. That is what our regulation requires.

    Mr. BACHUS. Oh, I understand that. And what about their statement that when they step away from the customer's tank to view the truck, that has a safety concern?

    Ms. COYNER. I think that the issue is that we do not deal with things in absolute terms on these safety kinds of issues. There is a balance between them, and to go back to the Congresswoman's analogy of being in the kitchen, what we do is we have the best practices that we can have. We are at the place where we most need to be, and that is what the Department's perspective is, as well as the National Fire Protection Association.

    Mr. BACHUS. Let me ask you this. You have said that they ought to be watching the truck, and you have also said that it is a safety concern if they are not at the customer's tank. They are relative. One is safe—they are both unsafe, but the other is more unsafe than the other. Is that correct?

    Ms. COYNER. That would be accurate——

    Mr. BACHUS. Okay.

    Ms. COYNER. ——just as there are relatively unsafe practices in driving your personal vehicle.
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    Mr. BACHUS. All right. Let me ask you this. That being the case, it is not safe to leave the tank. I agree with you on that, for the sake of argument. It is not safe to not view the truck. You cannot view the truck from the customer's tank. Then it seems to me that to comply with what your rules say, the industry would be required to provide a second attendant on a bobtail truck if even a single customer on the route does not have an unobstructed view of the truck from the customer's tank.

    Ms. COYNER. That may be the case in some instances, but recall that this is an interim approach to dealing with a safety issue that we detected.

    Mr. BACHUS. Well, okay, but——

    Ms. COYNER. But the ultimate answer is to have an automatic shutoff.

    Mr. BACHUS. Interim as it is, it is going to require two attendants to require with the rule. That is correct, isn't it?

    Ms. COYNER. It may in some instances require a second attendant to comply with the rule.

    Mr. BACHUS. Okay. And if you have a route with 200 tanks and it is only true in one case, then it requires two attendants, correct? Even on an interim basis, correct?
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    Ms. COYNER. That is correct.

    Mr. BACHUS. Okay. The cost you have calculated for this rule, does it take into—does it include the cost of a second attendant, which will be required to safely comply with the rule?

    Ms. COYNER. The regulatory evaluation that we are preparing, and I know that you are familiar with them, is quite lengthy. It outlines the assumptions that are made under a variety of scenarios, and it does, in fact, outline the costs involved with having a second attendant.

    Mr. BACHUS. What does that cost to the industry?

    Ms. COYNER. I will have to get back to you on that, sir.

    Mr. BACHUS. Just give me a—I mean, we need to know before we—don't we need to know before we require two attendants?

    Ms. COYNER. I am glad to submit an answer on the record, sir. I think that there are a variety of different configurations in the way that business is done in the propane and——

    Mr. BACHUS. Okay. Are you——

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    Ms. COYNER. ——the fertilizers.

    Mr. BACHUS. ——saying that it would be considerable? Do you agree with me that it is considerable expense to require two attendants?

    Ms. COYNER. I cannot agree with that standard because I do not think that you can draw a universal conclusion about what is required on each particular route. I think that what——

    Mr. BACHUS. Well, let's just assume minimum wage. Let's just assume that you can get someone for minimum wage, 40 hours a week. It would be—if it takes 40 minutes between tanks, then it would probably be an additional 4 bucks a month per customer on the route?

    Ms. COYNER. The calculations that involve the variety of approaches to addressing this issue indicated that the costs were about one-tenth of 1 cent per gallon of propane.

    I think that the issue that we share is that we need to come to a long-term solution and very quickly.

    Mr. BACHUS. Okay. You will just—and I do not want to put you on the spot. You will write and tell me what the cost of the second attendant would be?

    Ms. COYNER. I would be glad to.
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    Mr. BACHUS. Thank you.

    Mrs. Kelly submitted a question she wanted to ask, and it does sort of fit in here. Does the Final Rule published on August the 18th require two attendants on a propane delivery truck until the truck is equipped with a remote control shutoff device?

    Ms. COYNER. That is probably a fair reading of the rule.

    Mr. BACHUS. Okay. And even if it does not have a remote, even if it does not have a remote control shutoff device, since you—what we have discussed——

    Ms. COYNER. What the rule requires is when there is not an unobstructed view that there has to be a second attendant.

    Mr. BACHUS. Yes, but, I mean, even if there is——

    Ms. COYNER. Those instances would have the second——

    Mr. BACHUS. Would you agree——

    Ms. COYNER. ——attendant.

    Mr. BACHUS. ——that even if there is two tanks on the route that do not have an unobstructed view, you would have to take the attendant out there?
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    Ms. COYNER. It depends on how the route is configured. I grew up in South and East Texas, and the routes are extremely different depending on where you are.

    Mr. BACHUS. But let's say you leave Abilene—you leave Waco and you go out towards Corsicana and when you get 20 miles out there and 50 miles out, there are these two tanks that are not unobstructed. That is the route. Can you think of any way you would reconfigure that, not to take two people, unless you came back 20 miles and got him and took him?

    Ms. COYNER. I mean, I might pick up an attendant out at the other end of the line.

    I think that you have a reasonable point in terms of how you deal with the issue of a second attendant.

    Mr. BACHUS. You all considered that——

    Ms. COYNER. I will continue to work on it.

    Mr. BACHUS. ——whether, you know, if you have got some of the tanks, you need two attendants. Some of them you need one. You all have considered that in your cost?

    Ms. COYNER. Yes.

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    Mr. BACHUS. Okay, good. Could you share that information with me?

    Ms. COYNER. I would be glad to.
    [The information supplied follows:]

    [Insert here.]

    Mr. BACHUS. Okay. And her second question was, if it does require two attendants, if so, what is the cost, and you have already said you do not know.

    Ms. COYNER. I do not know off the top of my head, but I would be glad to provide the information for the record.

    Mr. BACHUS. But you will get back. Okay.

    And her second question, has your agency offered propane gas companies any assistance with regard to the incurred cost of this regulation?

    Ms. COYNER. We have not offered assistance in terms of the incurred cost.

    Mr. BACHUS. They just have to pick that up from the customer.

    Ms. COYNER. What we have done is devoted resources to looking for a technological answer.
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    Mr. BACHUS. They would have to pick that cost up from the customers——

    Ms. COYNER. That is correct.

    Mr. BACHUS. ——but they are not going to get it from the Government, right?

    Ms. COYNER. That is right.

    Mr. BACHUS. Okay. Thank you.

    Mr. PETRI. Thank you.

    Mr. Oberstar?

    Mr. OBERSTAR. Mr. Chairman, I have a statement that I would like to include in the record at the appropriate point and ask unanimous consent to do so.

    Mr. PETRI. Without objection.

    Mr. OBERSTAR. I compliment you on holding these hearings and for the cooperation that you and Mr. Rahall are sharing on bringing light to this extremely important issue.
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    I would just further observe that there are two factors that drive public concern and our concern on the committee, and that is increasing congestion on the Nation's transportation web, our railroads, our airways, our roadways, and the deteriorating condition of that infrastructure. Bridges are in bad shape. Our highways need more investment to upgrade them, and the increasing traffic combined with a deteriorating condition of our infrastructure and increasing shipment of goods has already created the conditions that have resulted in tragedy. That requires the public sector, the Department of Transportation, and the State agencies all to increase their vigilance, but our vigilance cannot remove the responsibility from the private sector to do their job.

    I have said in the aviation sector, safety begins in the corporate board room. There is not a corporate culture of safety that will not be translated down to the worker level. Government cannot do safety for the railroads, for the airlines, for the trucking companies. They have got to start it themselves. The job of the Government is to assure that in the public interest, they are carrying out their responsibility, and we thank you for doing your job at RSPA and at DOT.

    Thank you, Mr. Chairman.

    Mr. PETRI. Thank you.

    I have two questions that were asked. We were asked, I think, by the Aviation Subcommittee or other subcommittees to ask you to respond to, if possible. The DOT has banned the carriage of oxygen canisters on aircraft after the ValuJet crash, but still permits air carriage of other hazardous materials. Would the administration favor banning all hazardous materials from aircraft? How would this be enforced with respect to individual passengers or with respect to the disabled using battery-powered wheelchairs?
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    Ms. COYNER. In the wake of ValuJet, we have taken a hard look at our safety practice with respect to the shipment of hazardous materials by air.

    I think it is important to note that we already banned the most hazardous materials from the air before the ValuJet incident happened, things that are poisonous inhalants, for example, or explosives.

    Subsequent to ValuJet, as you noted, we have banned oxygen generators, and we have a rulemaking in place to look at extending that ban to other oxidizers, materials that actually feed oxygen in the event of a fire.

    I think that in terms of those who would ask the question should we ban all hazardous materials, there are a couple of things I would note. One is that we, in the course of looking at the oxidizer rule, have undertaken a very complex risk analysis of looking at other kinds of hazardous materials, but people need to remember that things that we call hazardous materials are vital to our everyday life, and they are something we come to rely on, things like radiopharmaceuticals, for example, things that are in small quantities that we may use and things such as cosmetics. Finger nail polish remover is highly flammable.

    And as we look at whether or not something is safe for shipment by air, we need to be cognizant that the question is whether or not it is packaged and labeled correctly and being handled in an appropriate fashion.

    We are far more concerned with those individuals that ship hazardous materials by air that are undeclared, people who are not marking and labeling what those things are, than we are with extending a ban to all hazardous materials. In fact, we have some concern that if we were to extend a ban to all hazardous materials, it would result in more people shipping items in a manner that is unsafe.
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    With respect to the issue of battery-powered wheelchairs, we have had to deal with similar issues with respect to the provision of oxygen for people who have respiratory issues, and we clearly need to make sure that we are ensuring the accommodation of individuals with disabilities and their ability to use the air transportation system. We believe that we can accommodate that by making sure that those batteries are packed and shipped in a way that is consonant with good safety practices.

    Mr. PETRI. There are tradeoffs, I guess it comes down to.

    One other area, if I could read a series of questions, and it has to do with the general subject of opening packages by inspectors and how that affects the liability of both the Department and of the shippers if they are not properly closed again.

    Some have expressed concern about the provision giving authority to inspectors to open packages. Can you cite your current authority to open packages, and does it cover all modes? Are inspectors actually utilizing this authority now, and if so, how often? What would happen if an opened package is improperly closed and an accident occurs? What is the liability on the part of the DOT? What protections or procedures would ensure the packages' further safe movement? Would shippers and carriers be compensated for damaged or delays in shipment due to a mistake or error by an inspector?

    Ms. COYNER. You will forgive me if I miss one of those questions, and I will be glad to elaborate on the record if I do, in fact, do so.
    [The information supplied follows:]
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    [Insert here.]

    Ms. COYNER. I think that the more typical experience that we have in terms of the opening of packages is that most people voluntarily open packages for inspection. So, in the vast majority of cases, there is not a need for us to have the authority to mandate that they be opened. I think that most shippers, most carriers want to have the safe transportation of hazardous materials and they are prepared to open a package and make sure that it is properly resealed.

    The instances we are talking about is in the minority of cases and, frankly, ones where we are concerned that there are shipments that are not properly packaged. The current authority we rely on is case law which supports opening packages when there is a reason to suspect there is a violation of the law, and though I am a lawyer, I am always careful about not practicing in an area that is not my expertise. I would be glad to elaborate on that authority in the record.

    The issues that have been raised about improper closing of packages and protection of workers I think are things that we share concerns with the industry, and if I might, I would like to just relay that we take very seriously the safety of our workers and the workers of the industry when we are doing these inspections.

    For example, when we open a container, we test the air before we allow the container to be fully opened, so that we can detect whether or not any poisonous inhalants have been released. We also have a number of other provisions that are designed to prevent packages from falling unnecessarily. We engage in training for both our employees and we have training requirements for those who are involved on the industry side.
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    One of the concerns I know has to do with whether or not you can tell whether or not a package has been opened, and I believe one of the technical amendments that I mentioned before that we were looking at in trying to agree on language for the industry would actually have us mark a package when it has been opened so it is readily identified as one that the seals need to be properly addressed.

    I would be glad to answer in detail the questions that you raised on this issue, and it is an important one to us at the Department, as well as the industry.

    Mr. PETRI. Thank you very much. Thank you for coming today.

    Some members may want to submit further questions for answer on the record, and so we will keep the record open for that purpose.

    Mr. OBERSTAR. Mr. Chairman?

    Mr. PETRI. Yes.

    Mr. OBERSTAR. Before this panel leaves, could I be recognized for just 1 minute——

    Mr. PETRI. Of course.

    Mr. OBERSTAR. ——to make an observation? RSPA is in the process and DOT as a whole is in the process of tightening up on regulations on hazardous materials in all modes of transportation, and, of course, every time that such a tightening up or heightening of action in the public interest is underway, there are concerns about costs and about effects upon various companies.
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    Let us not lose sight in this process of the object of those endeavors, and that is public safety. There is a cost on the other side as well, and that cost is paid dearly in lives, in disrupted families, disrupted communities, and the costs on the one side have to be weighed against the enormous benefits of preventing tragedies. There is never a cost, there is never a benefit assigned to the accident that did not happen.

    Let us not wait for the tragedy to happen and the accusation made later that this or that agency has a tombstone mentality that you only react when the tragedy has occurred and the body count has come in. You are trying to be preventive, prescriptive, and I commend you in that effort and urge you on, and urge you not to be deterred by those who would raise the specter of unfair costs and precipitous action. I think the action has been far too slow and certainly very deliberative.

    Thank you.

    Mr. PETRI. Thank you. Thank you very much.

    Mr. BACHUS. Mr. Chairman?

    Mr. PETRI. Yes, sir.

    Mr. BACHUS. One thing I would like to—just because, you know, Mr. Oberstar's comment—I think it was good, and I share your same concerns, but I do want to ask you this question. There is not a single documented instance in which the failure of a bobtail's emergency discharge control system caused any deaths, injuries, or property damage. Is that correct?
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    Ms. COYNER. That is correct, but the excess flow valve is designed to mitigate——

    Mr. BACHUS. Oh, I understand——

    Ms. COYNER. ——once that occurs.

    Mr. BACHUS. ——but there had not been any of these accidents yet. So, if there is an accident out there——

    Ms. COYNER. No. There have been several accidents where——

    Mr. BACHUS. I mean no deaths, injuries or——

    Ms. COYNER. We have actually had a death. We had a death——

    Mr. BACHUS. Because of——

    Ms. COYNER. ——in September.

    Mr. BACHUS. ——the instance, failure of a bobtail emergency control system?
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    Ms. COYNER. I believe the North Carolina incident was a bobtail, the one that involved a fatality of the driver who was standing about 85 feet from the vehicle.

    Mr. BACHUS. Eighty-five feet from the vehicle?

    Ms. COYNER. Mm-hmm.

    Mr. BACHUS. Well, now, you are actually asking them to move closer to the vehicle.

    Ms. COYNER. The issue there, I think one thing—and staff correctly points out that this is an accident that is still under investigation——

    Mr. BACHUS. Okay——

    Ms. COYNER. ——but what the issue was——

    Mr. BACHUS. But this reg would require——

    Ms. COYNER. ——is that the person——

    Mr. BACHUS. ——would require them to move——

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    Ms. COYNER. ——was not close enough——

    Mr. BACHUS. ——towards the——

    Ms. COYNER. ——to shut it off, nor did they have a remote control valve——

    Mr. BACHUS. Okay.

    Ms. COYNER. ——in order to shut it off.

    Mr. BACHUS. Yes, but that would not have prevented that accident.

    Ms. COYNER. The excess flow valve does not prevent accidents.

    Mr. BACHUS. Yes.

    Ms. COYNER. It mitigates them once they have happened.

    Mr. BACHUS. Actually, they would have been standing closer to the explosion.

    Ms. COYNER. Not if there had been an excess flow valve. It would have had the——
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    Mr. BACHUS. No. I mean, if you had required him to move away from—to move towards the truck.

    Ms. COYNER. I think the issue is that——

    Mr. BACHUS. Well, we will just say that is still under——

    Ms. COYNER. I think the issue is——

    Mr. BACHUS. Other than this——

    Ms. COYNER. ——that he was not even using a control device——

    Mr. BACHUS. Other than this one accident——

    Ms. COYNER. ——in that case.

    Mr. BACHUS. Other than this one accident, that is the only case, and with this accident, we do not really know yet about it, right?

    Ms. COYNER. Those are the two that are——

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    Mr. BACHUS. It is still under——

    Ms. COYNER. ——involved——

    Mr. BACHUS. ——investigation?

    Ms. COYNER. ——in interstate commerce. We have not——

    Mr. BACHUS. Okay.

    Ms. COYNER. ——collected data to date on intrastate incidents——

    Mr. BACHUS. Yes, but I guess we should when we—when we—maybe before we go forward, we should know how many of these accidents have occurred. The past sort of predicts the future because, I mean, there are people filling up propane tanks, 100,000 a day, every day. I mean, probably more than that. Maybe a million a day, every day. And we need to kind of maybe find at least one accident.

    Ms. COYNER. Sir, there is not going to be an accident that was caused by that excess flow valve. They are to mitigate, and I think that is something we are in agreement with——

    Mr. BACHUS. Oh, okay. All right.
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    Ms. COYNER. ——in terms of the——

    Mr. BACHUS. Well, I have not heard about all the deaths and injuries. I just did not—we were not talking about this rule.

    Ms. COYNER. I think what we are talking about is the release of propane, and the excess flow valve is designed to mitigate it after the release has occurred.

    Mr. BACHUS. Okay.

    Ms. COYNER. I think you and I are in agreement on that.

    Mr. BACHUS. Okay, thank you.

    Mr. PETRI. Thank you.

    Mr. PETRI. The next panel has been very patiently waiting, and I know at some inconvenience to several of the members who have busy schedules. So I apologize for you.

    I would like to welcome Chief Fire Officer John Eversole who is the commander of the Chicago Hazardous Materials Division and the representative of the City of Chicago Local Emergency Planning Committee.

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    On behalf of the International Association of Fire Chiefs, Mr. Frederick Nesbitt is the director of Governmental Affairs, International Association of Fire Fighters, AFL–CIO.

    Mr. R. Dale Everitt is vice president of Operation Respond Institute of this city.

    Gentlemen, welcome.

    Chief Eversole, would you like to begin?


    Mr. EVERSOLE. Good afternoon, Mr. Chairman, members of the committee. My name is John Eversole, and I am a chief fire officer employed by the Chicago Fire Department. I am the commander of their Hazardous Materials Division and the Fire Department's representative to the City of Chicago Local Emergency Planning Committee. I am present today on behalf of the International Association of Fire Chiefs, as its chairman of the Hazardous Materials Committee.

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    Today, I want to address three primary areas of concern to your subcommittee's consideration of the reauthorization of the hazardous materials transportation law, and they are, one, the need for nationally uniform standards governing the shipment of hazardous materials in the United States; two, the need to retain the current standards on excess flow valves on compressed gas tanks; and, three, the need to maintain the Federal grant program for training hazardous materials responders at the State and local levels.

    In January of this year, the Research and Special Programs Administration of the U.S. Department of Transportation published a Final Rule which requires all intrastate shippers and carriers to comply with the Federal hazardous material regulations with certain specific exceptions. This action complies with the implementation of Federal laws passed earlier by Congress and is in keeping with the common sense approach to the transportation of hazardous materials in America.

    RSPA intends this rule to raise the level of safety of HAZMAT shipments by applying uniform standards nationwide. The IAFC fully supports RSPA in this endeavor and rejects any effort to weaken the regulations as published. The exceptions already granted in the current regulations have been carefully devised to address economic issues and special hardships which while not compromising a high level of public safety.

    To set the tenor for national safety programs on the transportation of hazardous material, I quote from Section 5101 in Title II, Hazardous Material Transportation Reauthorization, as it appears in Senate Bill 1173, passed by the Senate Committee on Commerce, Science, and Transportation. This section states, in part, that consistency in laws and regulations governing the transportation of hazardous materials is necessary and desirable.
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    With reference to the foregoing, I must tell you that the International Association of Fire Chiefs is very concerned that certain agricultural interests are lobbying Congress to exempt themselves from rules developed through the regulatory process. They have already petitioned RSPA to exempt themselves from the new national standard, so far without success. Let's keep it that way.

    These requests are very one-dimensional and do not account for the safety of emergency responders nor their communities. The IAFC and the Fire Service in general urge you to reject these requests for exemptions. These interests seek to exempt delivery from a supply point to a farm, within a farm and from a farm back to the source of supply. While we are not troubled by on-farm exemptions, we are very concerned about exemptions from supply source to the farm and return. These shipments travel over interstate highways, country and city roads, and contain extremely dangerous cargoes of both small and large quantities.

    Please understand that the key issue here is that a product is a product, not who owns or who is carrying it. A tanker of gasoline is just as hazardous in route to a farm as it is to a retail service station. A truckload of ammonium nitrate has the same hazardous characteristics whether it is on its way to a farm to be used as fertilizer or to a rock quarry to be used as an explosive.

    Similarly, truckloads of anhydrous ammonia or pesticides are just as toxic to humans, whether being shipped from the chemical plant to a retail supplier or from that supplier to the farm.

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    Mr. Chairman, members of the subcommittee, please do not exempt these agricultural interests from sane and sanctioned rules. Accidents happen, and when a truckload of hazardous materials flips over, the first responders, the fire fighters, must know what substance is carried in order to protect themselves so that they can protect the public.

    Placards and shipping papers are critical for information. Exempting agricultural interest from the transportation safety rules cannot be condoned by the Fire Service. From a public policy viewpoint, it is unsupportable, and from a public safety standpoint, it is just plain dangerous.

    On excess flow valves, excess flow valves are protective devices designed to help control the discharge of a compressed gas product in the event of a hose or pipeline rupture. For over 30 years, the Department of Transportation, working with interests, with industry and emergency responders, has required that these valves be installed on cargo trucks. During this time, industry has developed a practice of installing pumps on cargo tanks to increase the amount of product that can be delivered.

    What has happened as a result? Well, pumps block the operation of the excess flow valves rendering them ineffective. In the past year, there has been at least one major incident where a large quantity of compressed gas liquids was accidentally discharged because the excess flow valve did not function. Accidents of this nature where the safety control mechanisms cannot function create dangerous situations, especially when they occur in heavily populated areas.

    In August of this year, RSPA addressed the issue with several rulemakings. A series of public meetings was held, the most recent just a month ago. In our view, the Department of Transportation and RSPA in particular needs continued congressional support to stop dangerous industry practices and assure the safety of hazardous material transportation.
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    Mr. PETRI. Chief, your full statement will be made a part of the record. Your 5 minutes have expired. I know you have to get back to Chicago, and I wonder if you would respond to a question.

    Mr. EVERSOLE. I would be happy to do that, sir.

    Mr. PETRI. Do you have any recommendation about how the grant training program of the Federal Government can be improved? Do you think that the $6.5 million in planning and training grants that were distributed last year is an adequate amount? Do you have any sense as to what the States and localities are doing in the area of training beyond what the Federal Government is trying to stimulate? That is an area we would appreciate you——

    Mr. EVERSOLE. On the training issue, one, we feel that the training should include the requirements and pretty much what is followed now of the NFPA 471 and 472 standards. We feel that these are nationally accepted standards and that they should be followed.

    On the question of how good a job has RSPA done with this, the Department of Transportation, we feel that they have done a pretty good job.

    Is there enough money? Not when you have $6 million to train 1.3 million firemen. That comes down to a pretty low sum. We think it is important that we continue with the provision in HMEP that 75 percent be passed through to the local responder.

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    We do not need to spend more money in Washington, sir. We need to spend it with the people who are doing the job. That is how it can be improved. We need more help out there, and there is not a doubt in my mind that that help can be done.

    Yes, this program has worked well, and it has been very successful, with a built-in mechanism to push this through the States, get it out to the local people, and I think, in general, it has been very well handled.

    Mr. PETRI. Thank you.

    I know we have been running a little longer than expected and you have an air connection ferry you are attempting to make back in Chicago.

    Mr. EVERSOLE. I have changed my travel plans, sir, because, today, this was more important. I will deal with DOD another day.

    Mr. PETRI. Very good. Well, then we will proceed with statements from the other members of the panel, and then, if you wish, you may respond to additional questions that may be asked in a minute.

    Mr. PETRI. Mr. Nesbitt?

    Mr. NESBITT. Mr. Chairman, my name is Frederick Nesbitt. I am the director of Governmental Affairs for the International Association of Fire Fighters, which represents more than 225,000 professional fire fighters and emergency medical personnel.
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    I would be remiss in my duties today if I did not take a moment to express my organization's appreciation for the extraordinary work that you, Mr. Chairman, and the Ranking Minority Member, Mr. Rahall, have done on this issue over the past years. Our Nation's approach to hazardous transportation has been removed from the dark ages and put on course to prepare for the 21st century, but now is the time to build on that foundation and complete the job of ensuring that our Nation's emergency response personnel have the training, the equipment, and the resources necessary to protect all Americans against the inherent dangers of transporting hazardous goods.

    Just a few short years ago, the prospect of large-scale domestic terrorism was almost unimaginable, but, certainly, the images of the World Trade Center and Oklahoma City forever altered the view of the world in which we live. It is no longer possible to wish away the notion that terrorists could strike a train or truck loaded with toxins passing through a populated area.

    Add to this the reality that high-level radioactive waste may soon begin its trek from every corner of our Nation to Yucca Mountain and you have the potential for disaster. The strides we have taken in recent years are, indeed, impressive, but they are only the first steps.

    With regard to training and equipment, studies have repeatedly demonstrated the dire need for enhanced training or emergency responders to HAZMAT incidence. Consensus training standards are in place, and the curriculum has been developed. All that is missing are the resources to provide the training and equipment to fire fighters and other responders.
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    Previous reauthorization of the Hazardous Material Transportation Act have included provisions seeking to ensure that training of emergency response personnel, both by authorizing funding to the States and localities that employ emergency responders and by authorizing funding for a national train-the-trainers program. There are still significant problems in translating the public policy into actual training of fire fighters. We remain deeply concerned that the funding being provided to the States is not being well spent. Too little training is being provided, and what training is being provided is often inadequate.

    The bulk of the HAZMAT training provided by the States is an 8-hour awareness level training course, which is inappropriate for fire fighters. Fire fighters need to be trained at the operations level, which is a 24- to 32-hour program, and this is just the basic course for first responders.

    A second problem we are facing in providing HAZMAT training to fire fighters is neither the congressional appropriators nor the Department of Transportation have provided adequate funding for the train-the-trainer program established under the Act in 1994.

    The IAFF operates the Nation's leading train-the-trainer program for hazardous emergency response. We have extensive experience with these programs, having trained more than 16,000 trainers, and nearly a half-a-million emergency responders have been trained either by our materials or directly by IAFF trainers.

    Our curriculum is currently being used by Federal Government agencies, all 50 States, and has been adopted by a number of foreign countries.
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    The Hazardous Material Reauthorization Act of 1994 authorized $250,000 from the trust fund and $1 million in appropriations for the train-the-trainer program. To date, the trust fund allocation has been made only once in FY 1996, and the appropriation has never been made.

    In the one year that the train-the-trainer program did receive the $250,000 from the trust fund, we trained 191 trainers, 30 more than we anticipated, which translated into actual operation-level training for nearly a thousand fire fighters.

    We urge the committee to retain the provisions of the current law establishing the train-the-trainer program. Your strong endorsement of these provisions will enable us to petition both the Secretary of Transportation and the Appropriations Committee to provide the funding necessary to allow the program to build upon its impressive record of accomplishment.

    I wish to raise two other important issues related to the issue of the training funds. The best-trained fire fighters in the world are only as good as the equipment at their disposal. Many local fire departments have found the cost of specialized HAZMAT protective gear and clothing to be prohibitively expensive. We recommend that fire departments be given the ability to use some of the training funds for HAZMAT emergency response equipment purchase.

    The second issue involves released time. When the fire fighter is pulled off the line to be trained, that fire fighter must be replaced on the line by another fire fighter, and we encourage you to consider amending the law to allow municipalities to seek reimbursement or costs associated with released time.
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    I have two other portions of my testimony dealing with the identification of hazardous material which specifically relates to Operation Respond, a program that we strongly support and endorse. It has been included as part of our HAZMAT curriculum training. We were deeply involved in the development of the program. We are still involved, and the fire fighters have not only begun to learn to use it, but also to trust it, and I also have a section calling to your attention, Mr. Chairman, our deep concerns about changing the exemption for agricultural products as they relate to fire fighters because, when there is an incident, we need to know what material we are dealing with.

    I thank you for the opportunity to present our views and would be happy to answer any questions when you have them.

    Mr. PETRI. Thank you.

    Mr. Everitt?

    Mr. EVERITT. Thank you, Mr. Chairman, and good afternoon. My name is Dale Everitt and I am vice president of the Operation Respond Institute. We are honored to participate in today's hearing.

    I am here to respectively request the reauthorization of Section 109 of Public Law 103–311, the Hazardous Material Authorization Act of 1994.

    I have a short statement to present and have supplied the committee with more specific information that we respectfully request in the full report.
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    Mr. PETRI. The full statement will be made a part of the record.

    Mr. EVERITT. The original language of Section 109 of Public Law 103–311 designates the use of intelligent technologies to promote hazardous material transportation safety. Operation Respond is proud to be one of the success stories resulting from this legislation. With the authorization and subsequent appropriations through Section 109, Operation Respond would not have developed into the meaningful and effective emergency response tool it is today.

    As an operational test, Operation Respond meets or exceeds the requirements of Section 109. We have worked diligently and with both the railroad and the motor carrier industries, and I am happy to report today that we have 16 railroads that presently participate in this program and 2 motor carriers. You will hear from one carrier's president and CEO, Philip Ringo, of Chemical Leaman, in another panel. I would like to thank him for his initiative to be the first trucking company to get involved with Operation Respond and to be an active supporter of this organization. Other railroads and motor carriers are considering joining the program in the near future.

    Operation Respond began in 1992 as a cooperative undertaking of the U.S. Federal Railroad Administration and the Port Terminal Railroads of Houston, Texas. It was a direct result of a National Academy of Sciences study that recommended experiments using carrier databases to provide critical information to the first responders at railroad and truck hazardous materials incidents.
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    The Department of Transportation embraced the program at its inception. Secretary Slater, FRA Administrator Molitoris, and the Federal Highway Administration recognized it as a key component in their commitments to railroad and highway safety.

    In order to conduct further research and to facilitate additional private and public funding, Operation Respond became a not-for-profit institute in 1995. The program is jointly funded through the U.S. Department of Transportation's ITS program, and the participating railroads and motor carriers. Through this joint funding and with significant support from the carriers and the emergency response community, Operation Respond has developed the Operation Respond Emergency Information System, also known as OREIS.

    OREIS is a communications system with life-saving potential. The software connects fire and police departments with the databases of railroads and motor carriers so that in the event of hazardous materials incident, the first responder obtains quick and accurate information on the cargo contents.

    The system is operational in over 300 emergency response agencies in 28 States, the District of Columbia, as well as territories in Canada and Mexico. Our users and carriers view OREIS as a tool that complements existing emergency response programs.

    Fire fighters and police arriving at the scene of a hazardous material accident can use OREIS to verify the cargo of the affected train or truck, often in less than 1 minute. Once the first responders know what the contents are, they can quickly respond and appropriately to ensure their own safety and the safety of the surrounding area. Our goal is to ensure the first responder is not the first victim.
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    The reaction from the emergency response community has been tremendous. Responders are trained to always have at least three sources of content confirmation in a HAZMAT incident before they implement a response. They favor OREIS because it provides the critical information so quickly and because it has several stand-alone features that serve as backup information if needed.

    In its short history, OREIS has demonstrated its value to both first responders and public officials. The system has been used successfully in several situations.

    Since its first pilot in 1993, it provided information in two potential emergencies in Houston. It was an important safety feature at the 1996 Summer Olympics in Atlanta, Georgia, and it has been used six times in over the past 12 months in Buffalo, New York area.

    Operation Respond is organized as a project team that directly reports to a national steering committee comprised of Federal agencies, fire departments, law enforcement agencies, railroads, motor carriers, labor organizations, and professional associations.

    Congressman Rahall and Congressman Boehlert serve on the committee, and I thank them for their vision and leadership.

    In summary, I would like to repeat my request that Section 109 be reauthorized. I would also respectively request that Operation Respond's mission be specifically authorized as one of the operational tests outlined in this section.

    While we have made significant progress, much more needs to be done using existing technologies to improve emergency response particularly as it relates to hazardous material incidents.
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    Again, thank you for the opportunity to be here today. I am happy to answer any questions you may have.

    Mr. PETRI. Thank you. Thank you all for your testimony.

    Are there any questions?

    Mr. Rahall?

    Mr. RAHALL. Just very quickly, Mr. Chairman, just one comment to Dale Everitt and then one question to Fred.

    As a primary sponsor, as you mentioned, Dale, of Section 109, the 1994 HAZMAT law, I just want to note how pleased I am with how well it has been working. I commend you and I commend this entire panel, especially Fred as well, for their work and cooperation in seeing that it does work.

    As you know, we first became acquainted when you were still conducting that first test down in your hometown of Houston. Today, as you know, the OREIS technology is being used in over 300 locations, including Bluefield and Charleston, West Virginia, and soon to be in operation in Huntington, West Virginia. There is a great deal of progress that has been made in just a few short years.

    So you will certainly have my support in the reauthorization process.
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    Fred, let me ask you a question. You may have heard me question the administrator earlier in regard to what fire fighters are getting. You indicated that fire fighters have only once received a grant under the supplemental grant program that we authorized in 1994. Was that the only time you requested funding, or were there other occasions in which you made a request to RSPA, but was turned down?

    Mr. NESBITT. The statement of the administrator this morning was inaccurate. When the first year of the $250,000 grant was available, we applied. We submitted a 4-year application detailing how we planned to use the money over 4 years and the number of people to be trained.

    Based on that application, we received an initial amount of $250,000. The second year, we submitted a supplemental application. It was denied. We were told by RSPA that the $250,000 money grant from the trust fund was a one-time deal only. After that, we submitted a letter challenging them with a copy of the law, a copy of the citation of the law saying that we wanted a clarification on this because we did not believe it was a one-time clarification, and it is about almost a year now and we still have not gotten the response back from them.

    So, no, we applied for it for 4 years. We reapplied, and we were told it was one time only, never to be renewed.

    Mr. RAHALL. Thank you for that response.

    Let me just state for the record, reading from the law, it provides $250,000 for each fiscal years 1995, 1996, 1997, and 1998.
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    Thank you, Fred.

    Thank you, Mr. Chairman.

    Mr. PETRI. Thank you.

    I am informed that the bells mean we will have two, possibly three votes, depending on whether there is another motion following the action being taken on the floor right now. So we should recess probably until 1:00. If we are slightly late, it will be because there is a third vote, but we can be back at 1:00.

    This hearing is adjourned, and we thank the panel.


    Mr. PETRI. Well, I apologize for the delay and the disruption, a much reduced, but hardy band of witnesses and associates are here, and we are ready to start. Mr. Rahall is on his way and will be here momentarily. I think we can probably get the next panel, III, organized.

    The chairman of the West Virginia Public Service Commission, Charlotte Lane, is she here?

    All right. They are downstairs? Okay.
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    Mr. PETRI. All right. Well, I think we can resume, and the third panel is comprised of the Honorable Charlotte Lane, chairman of the Public Service Commission of the State of West Virginia; and Elizabeth Parker who is associate director of the Office of Intergovernmental Policy of the Minnesota Department of Transportation.

    We welcome you both, and, Chairman Lane, would you like to begin?


    Ms. LANE. Thank you.

    Good afternoon. My name is Charlotte Lane, and I am chairman of the Public Service Commission of West Virginia.

    Mr. PETRI. Oh, pardon me. Downstairs, we have these yellow lights and red lights and green lights. That equipment is not here, but the 5-minute rule we will still be, more or less, doing our best to follow.

    Ms. LANE. And I will, more or less, try to abide by it.
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    Mr. PETRI. Thank you.

    Ms. LANE. I am here today on behalf of the Commission in West Virginia which is one of the five States administering a uniform hazardous materials registration and permitting program. I am also here at the behest of Mr. Dick Henderson, Government Affairs director of the Commercial Vehicle Safety Alliance, in regard to the uniform program. The uniform program is the embodiment of a compromise between the States and industry and was mandated by Congress and the Hazardous Materials Transportation Uniform Safety Act in 1990.

    The compromise, forged by Congress between the States, industry, and the United States Department of Transportation, allows States to administer programs which protect the public and the environment while relieving industry from the administrative burden of complying with a myriad of State and local permitting programs. The uniform-based State reciprocal program which evolved under the guidance of the National Governors Association and the National Conference of State Legislators was initially articulated by the Alliance for Uniform HAZMAT Transportation Procedures, which consisted of individuals from 22 States, from affected industry, and from citizen groups.

    The uniform program is a consensus of the HAZMAT industry and State and local safety officials and is the product of nearly 6 years of meetings and negotiations.

    Between 1993 and 1995, a pilot program was implemented in West Virginia, Minnesota, Nevada, and Ohio to test the recommendations of the alliance. HAZMAT transporters and shippers could register and obtain the necessary credentials in a base State to operate in other pilot States. These industry members benefitted from the reciprocity extended between the participating States.
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    Concurrently, the registration and permitting process allowed the States to examine carrier safety histories. The permitting process requires verified compliance with essential safety requirements such as financial responsibility, hazardous materials training, and commercial driver's licenses. These requirements were put in place to prevent and minimize the impact of accidents and releases prior to their occurrence, rather than relying solely on after-the-fact enforcement and performance-based statistics.

    Our staff was able to reach out to many operators in the HAZMAT transportation sector who were partially and sometimes even totally unaware of applicable Federal safety regulations. In light of the risk to public health and safety for major hazardous materials incidence, such as the one recently occurred in West Virginia, closing our turnpike for 2 days, it is imperative that States be empowered to implement preventative rather than remedial measures to minimize incident impact.

    On the basis of the pilot program experience, the alliance submitted to the Secretary of Transportation a final report, as required by Congress in Section 22 of HMTUSA, detailing a comprehensive plan for national implementation of a uniform hazardous materials transportation program. This plan demonstrated that uniformity in hazardous materials registration and permitting procedures was not only possible, but also effective and efficient.

    The plan detailed the State's ability to reduce administrative burdens, while protecting public safety and retaining flexibility to decide their level of participation. The nationwide implementation of the uniform program would assure Americans that travel our highways that HAZMAT transporters they encounter meet a standard of safety reflecting a common understanding of industry and Government officials.
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    The Federal Highways Administration Office of Motor Carriers has declined to move forward on this important initiative. Instead, the legislation submitted by Federal Highways Office of Motor Carriers for your consideration would fund still another study with a view toward a new Federal registration and permitting system for the hazardous materials transporting and shipping industry. The OMC-envisioned, performance-based carrier assessment program would not require a prequalification and would only respond with increased enforcement actions after a HAZMAT incident or accident.

    The State's uniform program stresses pre-incident education and verified compliance with the Federal regulations to prevent incidents and/or accidents instead of after-the-fact as proposed to you by OMC.

    I believe replacing these basic State public health and safety responsibilities with a program administered by Federal Highways OMC conflicts with your explicit guidance in HMTUSA and conflicts with current administration and congressional philosophy to allow States greater latitude in determining what is in the best interests of their citizenry.

    The uniform program allows States to choose the program level that best suits their specific needs, as well as participating States do so using uniform forms and procedures.

    Current law provides for national implementation of the uniform program when either 26 States adopt the program or when a Final Rule is issued by Federal Highways OMC, based on the recommendation of the pilot program.
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    Interestingly, during the pilot program, the alliance was discouraged by OMC from making outreach efforts to other States. After it became apparent that Federal Highways OMC was not going to proceed with the rulemaking in a timely manner, the States and industry began contacting other States and informing them of the benefits of the uniform program.

    I am pleased to report that in addition to the four original States, Illinois has joined the program this year. The Michigan legislature is expected to enact enabling legislation by the end of the year, and hearings have been held to explore the uniform program's feasibility in Tennessee. Several other States have expressed strong interest in the program, but as you know, it takes time for States to change current or enact new legislation, especially when they are receiving mixed signals from within the Beltway.

    To assist States through the transition and to ensure the integrity of the uniform program, the alliance established a national repository to administer the agreement.

    I am here today to ask the committee to preserve and expand the excellent progress already made by the States and industry in this unique safety endeavor. I am requesting that the uniform program be given the opportunity to flourish with an expressed statutory extension and at least $250,000 per year for the 6-year reauthorization period. This reaffirmation of support for the uniform program will serve as a green light to those States sitting on the sidelines monitoring this debate and considering their alternatives.

    So I urge your consideration of the concerns that will be expressed to you today on behalf of the States and industry, and I ask you to continue your support for this vital program. I thank you very much for the opportunity to bring to you our view on these issues from our perspective in West Virginia.
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    Thank you.

    Mr. PETRI. Thank you.

    Ms. Parker?

    Ms. PARKER. Thank you, Mr. Chairman, for the opportunity to appear here today. Some of my comments are very similar to those offered from the State of West Virginia, and so I am going to ask that my written statement be received for the record and then make some additional comments——

    Mr. PETRI. Without objection, that will be done.

    Ms. PARKER. Thank you.

    ——in response to some of the things that Mr. Reagle said about the program.

    My name is Elizabeth Parker, and I am from the Minnesota Department of Transportation. Minnesota is one of the four States that did develop and administer on a pilot basis the Uniform Hazardous Material Registration Program that you mandated be developed in 1990. Today, we are asking you to reaffirm your support for a program that promotes uniformity among the States, eliminates burdensome regulations for motor carriers and lets them devote their resources to making their operations safer, and to assure States that those who transport hazardous materials within their borders are safe.
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    Today, as we sit here, there are still over 40 States administering more than 60 different registration and permitting programs for hazardous materials or waste transportation. I believe that the four States that participated in the pilot program have demonstrated that a uniform program administered by the States can be both successful for the States and well received by the motor carrier industry.

    The Alliance for Uniform HAZMAT Transportation has submitted two documents over the years to the Federal Highway Administration. The first was the report of the working group that basically described all of the proposed uniform procedures. The second was the report submitted at the close of the pilot program. And Minnesota and other States are very concerned that the Secretary of Transportation has not completed the rulemaking that was begun last year by the Federal Highway Administration. We can conceive of no good reason why there has not been more activity on the part of the Federal Highway Administration.

    To begin with, Mr. Reagle stated that they had issued a Federal Register Notice soliciting comments on the rulemaking. The notice that was issued was extremely misleading and contained many inaccuracies about the program. It suggested in a series of leading questions addressed to readers that the uniform HAZMAT program was duplicative of a variety of other programs. In fact, there is no other current State or Federal program that duplicates or has all of the elements of the uniform program. The other kinds of programs that the States administer, such as the single State registration program, the international registration plan through which motor vehicles are registered, and IFTA, International Fuel Tax Agreement, all look at other areas such as taxation, filing of insurance, collection of revenue. None of those take a before-the-fact look at the safety of a motor carrier hauling hazardous materials on the roadside, and to us, it makes great sense to look at a carrier's operations before they haul rather than wait until there is an accident and then look at them after there is evidence of a problem.
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    Many States appeared at the alliance meetings that I was at over the years and expressed interest in the program, but no State is going to go to its legislature and ask to have its existing laws changed and give up a program that is well established until it has assurance that there is going to be a uniform program that it will fit into well.

    So the States need to have the certainty of having Congress direct FHWA by a certain date to adopt regulations for the program, preferably those submitted by the alliance. The program developed by the alliance resulted from several years of discussion, the hundreds of hours of meetings, participation not only of the motor carrier industry and State officials, but also representatives if city governments and even a representative of The Sierra Club, so that there were many interests taken into account.

    The States, I think, in many cases would be willing to join, just as they have become willing and effective member of IRP and IFTA and other uniform programs that have guidance and oversight from the Federal Government, but are actually carried out in the States at home where the carriers are based.

    So what we are asking is that FHWA go back and look at the report which has sections on both the costs and benefits of the program to both the carrier and the States. It is not true that there needs to be additional study of costs and benefits. That has already been done, and the States would be very grateful if Congress would establish a date for uniformity, set a preemption date some few years in the future in order to give the States time to get into the program and make program development funds available to, say, the first 26 States that sign up for the program so that they can travel, meet, change their rules, and put into effect the vision that Congress articulated in that Act in 1990.
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    Thank you.

    Mr. PETRI. Thank you.

    Mr. Rahall, any questions?

    Mr. RAHALL. Thank you, Mr. Chairman. I want to commend both of the panelists for their testimony, and especially you, Charlotte, being from my home State of West Virginia. I commend you for the excellent job you do as chair of our Public Service Commission and tell you how proud it makes me to see a West Virginian take such an important lead on this safety initiative, safety issue.

    You hear Mr. Reagle's testimony earlier this morning. Are there comments you would like to make on his testimony or any responses to him?

    Ms. LANE. I agree with your analysis of what ''shall'' means. Being a lawyer of 25 years, I could not argue with what the dictionary says.

    Mr. RAHALL. Let me say that I believe this whole controversy should really be a non-issue. It is apparent that the parties involved in developing the recommendations made by the alliance, State and local safety officials, as well as industry, having good faith sought to comply with what you have termed as a compromise that we devised in 1990.

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    Yet, for reasons that are not completely apparent, the FHWA seems intent upon frustrating not only the letter of the law and the intent of Congress in this matter, but the wisdom generated by 6 years of negotiations by State officials. That is unfortunate. For my part, I will continue to press forward with legislation to require compliance. We have several options. We will review them all, and I just want to conclude by thanking you for being with us today.

    Ms. LANE. Thank you.

    Mr. PETRI. Thank you.

    I had one subject I wish you could comment on, and that is, is there really any particular reason why the States cannot on their own expand on the uniform pilot program? What is the real need for the continued Federal involvement in this area? I mean, is it imperative that we continue to be involved in providing funds on this and that, or will States just build on their own? I mean, there are a lot of areas where there are uniform laws, and they seem to—I guess depending on the area—work better or worse. Could you give your view on whether you want us meddling in this further?

    Ms. PARKER. Mr. Chairman, I think that this is a case where Congress does need to be involved. I think that many States are interested in the benefits of a uniform program because, of course, then they only need to deal with the carriers based in their State, but States are very reluctant to join a uniform program if they do not know that there is going to be some incentive, I think, in the form of both preemption and a development grant for them to do it because they are always looking to see what is every other State around them going to do, and so it is sort of like a chain reaction. It requires a lot of courage on the part of an initial group of States to forsake the old way of doing things and to agree to get together with other States because, whenever you do that, every State has a different idea about what regulations should be, and it means that in order to have a uniform program, you have to give up some of your own ideas about how things should be and embrace some kind of a compromise.
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    Unless there is pressure to do that, I think it is very difficult for the 48 contiguous States to actually come together and do that. The best example is the way IRP and IFTA were handled when Congress decided that at some point all of the States would get together and join these uniform programs or they would lose their ability to tax the motor carrier industry, and that program was awarded a million dollars a year for 6 years in order to hold the meetings necessary to have the travel and provide staff assistance for developing uniform rules. I think both the carriers and the States at this point would say that the benefits from that are tremendous.

    That is really what we need in this, the framework of a mandate to do it, some funds to help us do it, and then the States, I think, are getting in the habit of having uniform programs now. They are also accustomed to having some kind of Federal oversight, and if they are allowed to enforce things in their States in an appropriate way, I do not think they object to the Federal oversight.

    Mr. PETRI. All right. Thank you both very much.

    Let's see. The fourth panel is comprised of Mr. Mike Garrigan, who is the director of Distribution of BP Chemical Inc. in Warrensville Heights, Ohio, and he is appearing on behalf of the Chemical Manufacturers Association; Mr. Thomas Gross, environmental specialist, Southern California Edison Company on behalf of the Edison Electric Institute; Mr. Phil Ringo, president and chief executive officer of the Chemical Leaman Tank Lines on behalf of the American Trucking Associations, the Association of Waste Hazardous Materials Transporters, and the National Tank Truck Carriers; as well as Mr. John Currie, administrator and technical consultant, Vessel Operators Hazardous Material Association from Lake George New York.
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    Gentlemen, welcome, and I think we may as well start with Mr. Garrigan.


    Mr. GARRIGAN. Thank you, Mr. Chairman and members of the House Subcommittee on Surface Transportation, for allowing me to speak to you today. My name is Mike Garrigan. I am the director of Distribution for BP Chemicals and the chairman of the Distribution Committee for the Chemical Manufacturers Association.

    CMA members represent more than 90 percent of the productive capacity of basic industrial chemicals in the United States and have a significant interest in reauthorization of HMTA. CMA is also an active participant in the Interested Parties of HMTA Reauthorization. The four panel members here represent the interested parties, and we will each discuss issues of importance to the group.

    I will discuss Federal jurisdiction authority. The other panel members will discuss Federal preemption authority, the uniform program, and Federal enforcement authority.
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    My testimony will focus on the appropriate boundaries of DOT's jurisdiction over the transportation of hazardous materials. We are very concerned about the possible dilution of DOT's jurisdiction particularly over activities such as loading, unloading, and storage incidental to transportation.

    Several events have blurred the lines of jurisdiction to regulate the transportation of hazardous materials. An example which has called into question the extent of DOT's jurisdiction is a preemption decision issued in February 1995 where the agency was unable to make a decision about preempting certain activities. This is a problem because we risk confounding shippers and carriers who attempt to comply with multiple and conflicting requirements.

    Therefore, given the example I have mentioned, it is necessary to clarify the scope of DOT's jurisdictional authority. We propose amendments to accomplish this beginning with Section 5101 of HMTA which establishes the findings and purposes of the Act.

    In 1990, Congress stated its intent for DOT to take a lead role in assuring that adequate regulations are in place to protect public safety during the transportation of hazardous materials, including their loading, unloading, and storage. This intent is evident in eight findings by Congress as a part of the Hazardous Materials Transportation Uniform Safety Act of 1990, or HMTUSA. These findings were omitted from the 1994 amendments to HMTUSA. Because these findings give clear direction to application of the laws governing the transportation of hazardous materials, we seek their inclusion in Section 5101. We also suggest adding a ninth finding that asserts DOT's role to ensure the safe and efficient movement of hazardous materials in commerce.

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    We propose two additional purposes be stated in the Act that will help clarify DOT's jurisdiction. We believe that a purpose of HMTA is to ensure the safe and efficient movement of hazardous materials in commerce, including loading, unloading, and incidental storage. We also suggest that a necessary purpose of the law is to ensure that the Secretary has preemption authority to eliminate inconsistent State or local rules. The inclusion of the findings and additional purposes will make clear DOT's jurisdiction.

    Section 5103 of HMTA sets forth the general regulatory authority pertaining to the transportation of hazardous materials. Section 5106 provides the Secretary the authority for prescribing criteria for handling hazardous materials.

    This past summer, DOT proposed to delete Section 5106 from HMTA. It believes Section 5103 grants broad authority to the Secretary of Transportation. However, we want to preserve the handling criteria authority which has existed in HMTA since 1975 because it clarifies the respective roles of DOT and OSHA. We also propose that the word ''efficient'' be added in Section 5103 to ensure consistency with the purposes of the law.

    Section 5107 of HMTA pertains to HAZMAT employee training requirements and grants. The Senate Commerce Committee proposes an amendment to the ISTEA reauthorization that corrects a clerical error in this section. The error inadvertently extended the authority of OSHA to regulatory areas affecting hazardous materials transportation that were not contemplated by Congress when this provision was enacted in 1990.

    The Senate Commerce amendment corrects the error by striking the words ''and Sections 5106, 5108(a) through (g)(1) and (h).'' However, the words ''and 5109 of this Title'' also need to be struck. Deleting these references will limit the ability of OSHA to issue standards when DOT has the authority to regulate the cited working conditions and it has exercised its authority. We ask the subcommittee to correct the error.
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    In conclusion, we believe that DOT should maintain its jurisdiction over the transportation of hazardous materials, including the loading, unloading, and incidental storage of such materials. The proposed amendments I have reviewed will clarify DOT's jurisdictional authority.

    Thank you for the opportunity to share these views with you.

    Mr. PETRI. Thank you for providing some specific recommendations to us.

    Mr. Gross?

    Mr. GROSS. Good afternoon, Mr. Chairman and members of the subcommittee. My name is Tom Gross, and I am an environmental specialist with Southern California Edison Company. I also serve as chairman of the Utilities Solid Waste Activity Group's Department of Transportation Committee. My committee is responsible for addressing hazardous materials transportation issues for the electric utility industry, and I am testifying today for Southern California Edison and the Edison Electric Institute and as a member of the Interested Parties' Coalition.

    It is a pleasure to appear before you today to discuss the reauthorization of the Hazardous Materials Transportation Act. We have a unique perspective on hazardous materials issues because our member companies are both shippers and carriers of hazardous materials. Based on this experience, we have identified four areas where the HMTA can be enhanced.
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    Specifically, Congress should reaffirm DOT's ability to preempt State and local rules that pose an obstacle to compliance for the Federal hazardous materials regulation. To ensure that modifications to DOT inspection of enforcement and emergency order authority do not create legal, practical, and safety concerns, Congress should clarify the respective responsibilities of DOT, EPA, and OSHA in prescribing and enforcing HAZMAT transport rules and reduce compliance cost by streamlining the HMTA registration permitting and record-keeping requirements.

    Because of time constraints, I shall focus my testimony today on our top HMTA legislative priority reaffirming DOT's preemptive authority.

    DOT's ability to maintain uniform national regulations is critical to the safe and efficient transportation of hazardous materials. Rules that promote the safe transport of hazardous materials in one State will promote safety in every State. Although other Federal agencies, States, and localities are responsible for regulating the non-transportation-related aspects of hazardous materials, the risks posed by hazardous materials in transportation can only be addressed through consistent nationwide rules. Subjecting shippers and carriers of hazardous materials to requirements that vary as the goods travel down the highway increases the risk of an unintentional release in another jurisdiction and adds unnecessary and expensive burdens on the regulated industry.

    For these reasons, Congress in 1990 codified DOT's preemptive authority specifically stating in the statute's legislative findings that State and local rules that vary from the hazardous materials regulations create the potential for unreasonable hazards in other jurisdictions and confound shippers and carriers that attempt to comply with the multiple and conflicting registration, permitting, routing, notification, and other regulatory requirements.
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    Yet, last year, the U.S. Court of Appeals for the District of Columbia Circuit significantly curtailed DOT's ability to maintain uniform national rules by prohibiting the Department from relying on the purposes of the HMTA as a basis for preempting inconsistent State or local regulations.

    In Massachusetts v. United States Department of Transportation, the court concluded that DOT could only preempt State rules that otherwise pose an obstacle to fulfilling explicit provisions, not general policies of the HMTA. The decision opens the door for States and municipalities to enact a host of new rules in areas where DOT has decided that safety regulations are not needed. Such rules have the potential to impair safety in other jurisdictions and impede the sufficient movement of hazardous materials in transportation.

    Congressional action is necessary to reaffirm DOT's preeminent authority over the regulation of hazardous materials in transportation. We, therefore, urge Congress to legislatively reverse the D.C. Circuit's 1996 decision and clarify that the obstacle test of Section 5125(a) applies whenever a State or local rule poses an obstacle to the purpose of the Act, regardless of whether there is an expressed DOT provision directly addressing the issue.

    Legislative language to achieve this end has been proposed by Senators McCain and Hollings. We support this bipartisan proposal and understand that this language is also acceptable to DOT.

    In addition, Congress should adopt a technical amendment to Sections 5125(d) and (e) to clarify that DOT has the authority to issue administrative preemption decisions on State and local fees and permits; Sections 5125(g) and 5119(c)(2), respectively.
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    For your convenience, a copy of this proposal is attached to my written statement.

    In sum, we strongly urge Congress to reaffirm DOT's authority to preempt State and local rules that pose an obstacle to compliance with the Federal hazardous materials regulations. Such legislative action is necessary to promote uniformity, safety, and efficiency in hazardous materials transportation.

    I thank the subcommittee for the opportunity to testify before you on this important issue.

    Mr. PETRI. Thank you.

    Mr. Ringo?

    Mr. RINGO. Mr. Chairman, my name is Phil Ringo. I am chairman and CEO of Chemical Leaman Tank Lines. My company is the largest United States provider of bulk trucking services. We specialize in the safe—and I would underline ''safe''—transportation of liquid and dry chemicals, and 85 percent of the 250,000 loads we deliver a year are classified as hazardous.

    I am testifying today on behalf of the American Trucking Associations, the Association of Waste Hazardous Materials Transporters, and the National Tank Truck Carriers. Chemical Leaman is an active participant in all of those organizations.
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    I want to do a couple of things. First, I want to echo support for the statutory amendments that have been presented to you under the banner of interested parties for HMTA reauthorization. In the interest of time, I am going to try to not be too redundant with Commissioner Lane's presentation. My task is to describe the evolution of the uniform program for State-based reciprocal registration and permitting of motor carriers transporting hazardous materials. I want to urge the subcommittee to reaffirm its expectation that the U.S. DOT expedite implementation of such a program in those States that choose to engage in those activities.

    Let me provide just a little bit of background. I think you have heard some of this already, but it never hurts to repeat. Historically, many States have elected to impose a registration and permitting system on the trucking industry. This has created a blizzard of paperwork and a compliance nightmare in many cases. While most information required by States on permitting applications is the same, no form looks the same. Inevitably, some requirements differ. Permits and registration statements have an equally wide variety of filing and expiration dates. Adding to this complexity is the fact that many State programs are vehicle- rather than company-specific, and that causes States and industry to constantly juggle permit filings as the number of trucks changes due to new business or seasonable transportation. Our frustration with that regulatory hodge podge drove us to request congressional help, not to avoid registration and permitting—that is very important—but to assure that such requirements are uniform and reciprocal.

    The legislative framework for such a uniform program was laid by this subcommittee as part of the 1990 HTMA amendments. At that time, Congress brokered a deal which recognized State authority to register and/or permit HAZMAT motor carriers as long as the program was uniform and reciprocal. I can tell you that every charge given to the State representatives in the 1990 law has been accomplished, and a record of those accomplishments is recorded in reports delivered to Congress and DOT in 1993 and 1996.
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    The law requires DOT to issue a Federal rule to implement the program nationwide, and as we have heard today, DOT could either issue this rule on its own initiative based on recommendations of the State representatives with which it agrees or it can be forced to issue the implementing rule by the participation of 26 or more States.

    At the last meeting of the State representatives prior to the 1994 kickoff of a four-State pilot, DOT apparently advised against recruiting additional States to the program and that rules would be forthcoming, and it was not until January of this year that it became clear to us that DOT had apparently no intent to implement this program as recommended.

    In recognition of this fact, industry and the participating States developed a legislative recommendation contained in the interested parties' submission. The recommendation would have absolved DOT of its obligation to issue rules by implementing the program through a congressional charter, as has been done with other base State agreements. However, we now understand that DOT's inaction on the rulemaking is not because the Department wants to relinquish jurisdiction over the issue. In fact, DOT has requested additional authority to conduct another study of the issue.

    Our premise is that enough is enough. The issue has been studied since 1991. The participating States have shown that the program is workable. For us, the carriers, the program reduced paperwork, provided a fee formula that comports with Federal law and the Constitution, and leveled the playing field as all carriers were held to the same standard, no matter what jurisdiction issues the credential.

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    For States, the program has provided choice about the level of participation and the universe of carriers to cover to ensure that only safe carriers transport HAZMAT; spread the administrative workload among the States; eliminated gaps that exist in some State programs; preserved State enforcement authority; and provided a safe harbor from preemptive challenges.

    The problem with non-uniform, non-reciprocal State permits and registration programs has not gone away. We have been hampered, not helped, by the inaction of DOT, and while industry and the four participating States have just begun to recruit other States to the uniform program—Illinois joined this summer and Michigan is expected by the end of the year—we have not had time to reach out and achieve implementation by the 26-State option.

    So, in conclusion, we urge Congress to reaffirm that it is appropriate and necessary to replace the myriad of State registration and permitting programs with a national uniform system to be implemented either by the participation of 26 States or by a Federal rule. We ask that 49 USC 5119 be amended to make it clear that even in the absence of Federal rules, States may participate in the uniform program.

    Finally, we support the request for funding to continue those functions performed by the uniform program governing board that are necessary to ensure reciprocity and recruit more States to the program. Such funding, we think, should terminate when the program is implemented nationally.

    In my own words, the work on this uniform program started as a great example of Federal, State, and industry collaboration. It seems to have gotten a bit off the track. It seems to me to be a no-brainer, and we would urge this subcommittee to fix it.
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    Thank you very much for your consideration of this issue.

    Mr. PETRI. Thank you.

    Mr. Currie?

    Mr. CURRIE. Good afternoon, Mr. Chairman and members of the subcommittee. I am John V. Currie, administrator for the Vessel Operators Hazardous Material Association. My industry experience includes trainer and supervisor of the New York State Police HAZMAT Enforcement Unit, director of Safety for the American Trucking Associations, technical consultant to VOHMA, and corporate manager of Hazardous Material Transportation for Digital Equipment Corporation.

    I feel I have a balanced insight into my topic today through the eyes of a regulatory enforcement official, an emergency responder, carriers by all modes, as well as a shipper.

    VOHMA is a U.S.-based international association comprised of 28 ocean carriers operating under the flags of several nations, transporting greater than 70 percent of the ocean freight container moves in the U.S. trades, and authorized under a Federal Maritime Commission agreement. We are pleased to have been invited to present our perspectives on the reauthorization of the HMTA as a member of the Industry Panel of the Interested Parties Group.

    My testimony will focus on the provisions within Section 5122 to expand U.S. DOT authority for obtaining evidence during the course of field investigations.
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    We support the efforts of the U.S. DOT and the hundreds of State and local law enforcement officers who conduct thousands of inspections each year to maintain a high level of safety in transportation and understand the need for them to open and enter transport units for the purpose of detecting violations. However, we believe that absent binding controls for obtaining evidence in the field, inspection personnel will jeopardize their own safety, that of the general public, and will further expose Government agencies, as well as shippers and carriers, to serious legal liabilities.

    Our concern deals with the broad unrestricted authority in the bill at Section 5122 for officers, employees, or agents of the Secretary to open containers and packages when they have an objectively reasonable and articulatable belief that they contain a hazardous material. These packages include everything from a small can in a fiberboard box to a rail tank car with the capacity of several thousand gallons. Risks involved in opening these packages in transit include explosion, fire, release of toxic or disease-causing agents, nuclear radiation, and environmental pollution.

    While we understand the need to collect and evaluate specimens which may eventually become evidence in the prosecution of instances of noncompliance, any authority for obtaining these specimens must include specific controls to protect the inspection personnel, carrier employees, the general public, and to maintain product integrity and value.

    We question the advisability of opening any packages containing hazardous material during a routine exploratory inspection in the field. Gathering samples of package contents or removing packages from a vehicle or freight container as possible evidence should only be conducted by properly trained and equipped law enforcement personnel based upon due cause. Such activity should only be conducted at facilities where professional expertise and protective equipment are available to control a release and where qualified technicians could safely obtain the samples required for the evaluation.
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    In all other cases, it would seem more prudent for the inspector to record all information available in the field, including documents, photographs, and field notes, and to continuing investigation at the facilities of the shipper, including the securing of samples.

    There are bound to be instances where an evaluation of the evidence indicates that a violation of the regulations, in fact, had not occurred. We question the ability of the inspection personnel to reclose and secure the package in compliance with the Federal regulations and carriers accepting and transporting this package could subsequently be exposed to civil and criminal liability. Non-acceptance by the carrier, on the other hand, could result in frustrated shipments with additional risks exacerbated by the delay in delivery. Would the shipper certification for that package then be considered voided by such intervention during transport?

    We are concerned that one of the reasons DOT is seeking this expanded authority is to clarify statutory authorization for their inspectors to open packages, thereby protecting them from personal liability in the instances where mistakes in opening or detaining packages have harmful results. Given the concern for product integrity many valuable cargoes might be rendered useless and could result in the irresponsible generation of hazardous wastes through indiscriminate opening of packages.

    While it is not our intention in any way to hinder the conduct of a lawful and proper investigation, we feel that the shipper or carrier must not bear the financial liability resulting from damage, loss, or destruction incurred through the inspection process. Since Federal Government inspectors appear to be excepted from the Federal Tort Claims Act, when a claim is based upon an act or omission arising from inspection activities, we strongly oppose any expansion of existing authority unless there are some provisions for equitable indemnification to include the value of the contents, packaging, repacking and securing cargo, and disposal of the material when required, just to be fair.
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    Securement of all cargo within a freight container is critical to safety and efficient delivery of cargo in good condition. In order to comply with the regulations and protect freight and transport equipment from damage, those persons who stuff containers often spend up to a thousand dollars on cargo securement systems within a single freight container.

    During a field inspection of freight containers, the inspector is often unable to replace blocking and bracing removed or modified to permit access for inspection of cargo. Costs associated with restoring, restraining, and securing systems should not be borne by shippers or carriers, and the responsible inspection agency must provide indemnification.

    It is our view that the HMTA already provides DOT with ample authority to conduct investigative activities for the purpose of detecting and responding to undeclared or improperly prepared shipments, and we fully support such activities. But we are deeply concerned that the administrator's proposal at issue today would allow DOT or their State counterparts to conduct warrantless searches without adequate legal safeguards.

    Due to time constraints today, I cannot even begin to point out the high cost of equipping inspectors with personal protective equipment, breathing apparatus, and training in the use of such equipment, all of which industry is required to provide for employees exposed to the dangers of these materials.

    We hope that the input offered by our panel today will assist your committee in preparing and implementing effective legislation to provide the U.S. DOT with the tools necessary to enhance hazardous material transportation safety, while at the same time providing sensible controls to limit exposure to injury and/or liability resulting from the use of these tools.
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    Thank you, and I will be happy to answer any questions you may have.

    Mr. PETRI. Gentlemen, thank you, all four, and I know some of you represent various organizations, and please thank them for the staff work that went into preparing your extensive remarks and the summaries of it. It has been very specific and very helpful, and we are eager to work with you to make sure we do what we can to get this process, as you put it, Mr. Ringo, back on track, rather than mired down on various side issues.

    One general question—and I apologize. This is near the end of a floor period and things become a little turbulent on the floor of the House, and so we have another vote, but my understanding is that the trucking industry or motor carrier industry has been working very hard for a number of years to try to come up with a single registration program sort of preempting separate State regulation. Here, we are taking a little different approach, trying to have a uniform State-based regulation.

    Could you explain why that approach is preferable to the one that is being done—or attempted in the motor registration area? Is there some reason to do it this way as opposed to some uniform Federal preemption approach?

    Mr. RINGO. They are all looking at me.

    Mr. PETRI. Yes.

    Mr. RINGO. Let me answer, it seems to me that you get the best of both worlds with this approach. It is a federally described package that the States have designed. It provides consistency and, at the same time, provides the States the ability to implement at one of four to different levels, depending on their own desires. So I think, to me, it is the best of both worlds, and, again, if I look back on the fuel tax issue, which was just the bingo cards and all of that, it was a very positive program. So it seems to me, at least in this case, it makes a lot of sense.
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    Mr. PETRI. Well, I guess the States do operate the weight stations and places that are natural for vehicle safety inspection as well. Whereas, the registration is more of a paperwork, computer sort of a thing if it works right, and so it makes sense to centralize it, I guess.

    Mr. RINGO. Yes, sir.

    Mr. PETRI. Well, thank you again very much. We have some other questions we might submit to your organizations for the record. We are going to have to recess for about 10 minutes, so I can run over and vote.

    Mr. RINGO. Thank you.

    Mr. PETRI. Then, when we get back, we will have the next panel. We thank you for your patience.

    Mr. RINGO. Thank you.


    Mr. PETRI. The subcommittee will resume.

    I apologize that these short delays that turn into long delays because, when we do have a vote, we are doing it in groups of thee because of the parliamentary tussle on the floor.
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    I am delighted to welcome our next panel, Mr. Mike Gorham, treasurer of the National Propane Gas Association, and Jerry Wallace from Swim Chem on behalf of the National Association of Gas Chlorinators.

    Mr. Gorham, would you care to proceed:


    Mr. GORHAM. Good morning—or good afternoon. Is it morning here anymore? I want to thank you and the other members of the subcommittee for the opportunity to appear today, and I ask that my written testimony be accepted into the record in its entirety.

    Mr. PETRI. That will be done.

    Mr. GORHAM. My name is Mike Gorham. I am presently the treasurer of the National Propane Gas Association. I also serve as the chairman of the National Fuel Gas Code Committee of the National Fire Protection Association, and I own and operate Northwest Gas which is a small retail propane business located in Grand Rapids, Minnesota.

    I want to say that there is no one in this room with a more intimate concern for my industry's safety than me. I am as close as you can get to where the rubber meets the road, and I have personally delivered over 20,000 gallons of propane in the last 2 weeks. So, when we are talking about the issue that we talk about, I am very close to it.
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    I am here today, again, to discuss a serious issue which shows what can happen when a Federal agency is granted authority to impose new regulations without respect to the cost to industry or of the benefit to the public.

    On August 28th, the Department of Transportation published a Final Rule that, among other things, effectively requires two attendants on most propane delivery vehicles in the Nation. This rule was made effective 2 days prior to its publication in the Federal Register.

    The Final Rule mandates compliance through one of three alternative means, none of which are immediately possible for the entire propane industry. Although DOT maintains it has provided an alternative that alleviates the need for additional attendants, the Department's assertion is not correct.

    The compliance alternative at issue permits the use of radio frequency remote control devices, provided the operator maintains an unobstructed view of the cargo tank motor vehicle at all times. This alternative provides no relief from the two-attendant requirement for two primary reasons.

    First, DOT's contention that these devices are readily available is simply fiction. The manufacturer of the equipment that was evidently the subject of DOT's cost estimate can product approximately 1,000 units per month. There are 24,000 vehicles in the propane fleet.

    This device is only one component of a functional shutdown system. Other components are the cargo tank valve itself, the valve operator which opens and closes the cargo tank valve, an air supply to operate the cargo tank valve, electrically operated pilot valve. Each component has its own integration logistics, which I will be happy to discuss with you following my remarks, if you have any questions on it.
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    Second, even with an emergency remote control device, assuming you can integrate one, an additional attendant still is going to be required for many propane deliveries because it is not possible to maintain an unobstructed view of the tank of the motor vehicle from the customer storage tank. We in the propane industry think the propane tanks are beautiful. Customers have divergent opinions on this, and so they tend to hide these things out of sight. So there are many, many installations where you cannot see the storage tank from the bulk truck.

    Since the third alternative only permits a single operator to deliver propane when you have this line of sight, two attendants are still required, and, again, prior testimony went to the idea of one or two things—or one or two stops on the route means that you are going to have that second attendant there for the whole thing. In addition—well, we will get to that later.

    The rule is flawed for other reasons as well. For example, first, it is flawed because it is based on flawed analysis. In various Federal Register Notices, DOT cited several incidents as the basis for these new rules. Many of these incidents are completely unrelated to excess flow valve performance, and would not have been prevented by the operational requirements and equipment requirements that DOT is now pushing; for example, those in which a cargo tank vessel was breached by massive external forces such as slamming into a bridge or into a rock embankment. And you can read those for yourself in the papers.

    Second, the equipment that DOT is requiring has not undergone systematic testing in winter operations or other field conditions, maybe hot weather, maybe cold weather, maybe whatever. We do not know what the limitations of these are. Our own company has experience with this, which I would be happy to share with you.
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    Third, DOT estimates the cost of retrofit will be between $250 and $500 per vehicle, There is only one equipment distributor in the Nation that we are aware of that can supply equipment that will meet this cost estimate, and, again, this is the cost of only one component of a functional shutdown system. It is not just the RF device. It is the valve that operates. If your truck is not equipped with that type of valve, it is another retrofit. Other devices that may be available in the future might cost from $1,000 to $3,000 per vehicle unit.

    Fourth, DOT suggested in the April 18th publication that this equipment will satisfy the regulations for 18 months to 3 years. After that, we believe that DOT intends to require industry to install new equipment, which is not yet available and which the Department estimates will cost 5 times to 10 times the amount required to accomplish the original retrofit, or somewhere in the neighborhood of $2,500 per vehicle.

    Requiring two attendants on propane delivery vehicles represents a potential increased cost to the consumer of may be 7 cents per gallon. That is for a second driver. We look at our profit-and-loss statements, and we can see we pay for labor to deliver this gas, and that runs 6 or 7 cents a gallon. Unfortunately, half of my trucks—I only have two—but probably half of the trucks in the fleet out there or a large portion of the trucks of the fleet only have one seat. Now, what are we going to do about those? Are we to follow around the bulk truck with a pilot car and have that second person go there or maybe ask the customer if they will watch the bulk truck and shut it down if we have an uncontrolled discharge?

    A typical customer who uses 900 gallons of propane per year, you can do the math, 7 cents a gallon, $63, every single customer, and our point is for what, what are they going to get for this.
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    I have a lot of customers that pay me a flat budget billing plan. They will pay $60, $70, $80 a month for their fuel. This represents a whole extra budget payment for these people. A lot of our customers are on a budget. They are low income, and what are they getting for that extra $63? That is our point.

    I want to take just a minute to talk about our industry safety record. In order to support this rulemaking, DOT searched the hazardous materials incident reporting system and undertook additional outreach efforts to find incidents relating to accidental release of propane.

    After a 6-month effort, they found 14 loading or unloading incidents that involved propane from 1990 to 1996, a 6-year span. Not one of those incidents has a proven link to a failure of an excess flow valve. The total damages associated with these incidents were only $931,000. Now, these are DOT's figures, and if you do the math, it is something like $150- or $160,000-per-year. That is the history. That is what is in the record. That is fact. That is history, not projection, or somebody's idea of what the damages might be.

    During the same period, our industry conducted approximately 220 million propane deliveries involving 64 billion gallons, ''billion'' with a ''b,'' of propane. If you look at this 20-pound cylinder chart, let's assume that the area of that tank represents the total volume that I just talked to you about, and we marked the area in red. If you look down there, you can see an area in red. That is the propane that was released accidentally during that same period.

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    Unfortunately, we first tried to mark the actual area that that would be, and nobody would be able to see it, and we felt that you should be able to see something. That dot is actually 1,500 times life size. That is the amount of unintentional release that we have in our industry; again, history.

    Then we look at the next chart. We estimate conservatively. We feel conservatively that the two-attendant requirement will cost our industry $660 million per year to comply with. Again, we think it is conservative because this is the 7-cents-a-gallon figure. That does not account for the trucks that only have one seat. That does not account for how much are we really going to have to pay these people to go and ride around to do something like this.

    Now, DOT estimates this rule costs $237 million annually. Looking at this chart, it really does not make much difference which estimate you take because you need to contrast either one of these costs with the estimated benefit to society, which DOT admits might be $332,000 annually, and compare that, again, with half that number, which we actually experienced for the last 6 years, of $160 or $170,000. You will not even see it on that chart.

    I recall that Mrs. Danner wanted to see the cost-benefit analysis or the cost analysis that DOT has done. I do have a copy of that. There is a regulatory evaluation that they did to generate their figures. If you would like to see that after the testimony, I would be happy to offer it.

    Absent congressional intervention, these regulations will result in many small propane businesses like mine going out of business because it is not worth the trouble, or we end up getting in a lawsuit or something like that.
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    When we go out of business, employees lose their jobs. Increased prices happen for consumers. You have all seen it happen. The little guy goes away. Prices go up. Unproven practices in systems being implemented and installed will be going on at a cost of thousands of dollars per vehicle, with questionable safety standards.

    We urge you to avert this outcome by limiting the agency's authority to require these things, these multiple-delivery attendants, and we further urge you to provide some guidance to the Department that is consistent with three basic principles that we have been trying to get across since this whole thing started; number one, that multiple retrofits are not justified. One retrofit with the equipment that is currently available on a limited basis, followed by a second retrofit, involving prospective technology that may or may not be there, we do not think is justified for both a safety or an economic standpoint.

    DOT's testimony has said that the RF devices provide an equivalent level of safety today. Why does that change 18 months from now or 24 months from now just because something else comes along that is better, or may or may not be better?

    Number two, reliability testing is necessary to establish an acceptable level of safety. Again, we have experience with these things. We know that it is not as easy as it sounds. One unreliable system for another only imposes massive cost without any safety benefit.

    Number three, and perhaps most important, a reasonable time frame for compliance should be provided. A full fleet retrofit involving 24,000 vehicles cannot be done overnight, especially not in minus 2 days. DOT should accept the fact and provide a reasonable period for us to safely accomplish the task. Non-enforcement is not acceptable. There were remarks made earlier today that, well, we are not going to enforce this thing. DOT was concerned about inspectors' liability opening packages earlier here in the hazardous material transportation. Where does that leave us if we are out of compliance? We are in exactly the same thing.
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    I hope that in addition to providing limited relief from the regulations in which I focus today, this subcommittee will consider reauthorization of legislation, mindful of the implications of granting raw discretionary authority to DOT.

    While Congress has recently adopted legislation designed to curb unreasonable regulations, we believe that stronger safeguards are necessary to ensure that regulators give serious, rather than cursory consideration to the relationship between private cost and public benefit.

    I really thank you for this opportunity to testify, and I would be pleased to answer any questions that you may have.

    Mr. PETRI. Thank you.

    Mr. Wallace?

    Mr. WALLACE. Thank you, Mr. Chairman, for affording me the opportunity to appear here today to testify on behalf of the National Association of Gas Chlorinators, the NAGC. My name is Jerry Wallace.

    The NAGC is the primary representative of small businesses which utilize gas chlorine for residential swimming pool maintenance. Our average member company has 10 employees and 9 vehicles. Many of our members have been operating in this industry for 30 years or more. I myself am a second-generation swimming pool serviceman using gas chlorine.
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    I am here today to address the single most significant regulatory problem facing the members of our industry. Prior to October of 1992, vehicles carrying less than 1,000 pounds of gas chlorine were not required to be placarded.

    When the Research and Special Programs Administration, RSPA, overhauled its hazardous materials regulations in 1992, they swept our small businesses into a one-size-fits-all regulation that required any quantity of gas chlorine to be placarded. These regulations failed to recognize any difference between our vehicles, which never carry more than 300 pounds of gas chlorine packaged in small service cylinders and those of our suppliers who carry as much as 40,000 pounds in ton containers.

    Mr. Chairman, we are requesting a provision that would exempt from this requirement small transport vehicles of less than 10,000 pounds gross vehicle weight that are operating in intrastate transport only and carrying 15 or fewer 20-pound-capacity cylinders of gas chlorine for the purpose of residential swimming pool maintenance.

    As might be imagined, our industry is seasonal in nature. It is for our busy season during the summer that we must hire new employees. As you know, all placarded vehicles may be driven only by those with a commercial driver's license, a CDL.

    We respect the reasons for which this committee initiated the CDL program. In some States, it was possible to be licensed to drive a tractor trailer by testing in a passenger vehicle. We are the flip side of that coin. Our industry universally drives standard-sized or smaller pickup trucks. Yet, we are now forced to pass a written test designed for tractor trailers. We then must pass a general hazardous material test, which contains little, if any, information that is pertinent to our extremely narrow hazardous material transportation.
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    After this, we must pass a physical driving test in a vehicle in which we are already licensed to drive, a standard passenger vehicle.

    It currently takes 4 to 6 weeks, and often longer, for an individual to complete the process and receive an CDL. During this time, our new employee is unable to engage in the work for which he is hired. So, as much as 25 percent of the labor costs associated with the hiring of an additional employee pays for nonproductive time mandated by Federal requirements. These requirements only deal in general with bulk HAZMAT transportation and add nothing to the safe transportation of chlorine by our employees.

    Mr. Chairman, we understand the need for Federal regulations when such regulations can be demonstrated as necessary to protect the public health and safety. In fact, it is because of other Federal regulations that our industry has been operated so safely over the past 40 years.

    We have sought relief from RSPA. The rejection of our petition seeking relief was based on flawed reasoning which RSPA itself described as simplistic. Prior to filing an appeal, the NAGC contracted with the former chairman of the HAZMAT Panel of the National Academy of Sciences Transportation Research Board to conduct a risk analysis of our transportation of gas chlorine. This firm coincidentally listed the Department of Transportation among its clients. This expert concluded that the risks to the public, even under a worst-case scenario, would be relatively minor.

    Mr. Chairman, I would like to submit a copy of this analysis for the record.
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    Mr. PETRI. Without objection, it will be included in the record.

    [The information received follows:]

    [Insert here.]

    Mr. WALLACE. When confronted with this authoritative analysis and our appeal, RSPA chose to discount this information in favor of their previous simplistic position denying our appeal. While I would like to provide a copy of the entire analysis for the record, I think it is worth taking a moment to recite its concluding paragraph. ''Based on this analysis, the risks to the public due to the release of gas chlorine during transport for swimming pool maintenance appear to be relatively minor and may warrant less stringent requirements. The small quantities of chlorine involved would disperse so quickly during a release that it would be difficult for anyone to be exposed to a harmful concentration for enough time to cause any permanent effects.''

    The fact remains, Mr. Chairman, that there has not been a single reportable transportation incident in our industry during the last 11 years for which DOT data is available. Over that 11-year period, our industry has made over 100 million safe transports to our customers.

    We must now turn to Congress to instill some reason and common sense into the process and to recognize that our customers and our businesses must bear additional costs because of a one-size-fits-all Federal requirement in which our industry was swept up. This regulation has no actual benefit to the public and certainly has no benefit in light of the costs with which it is associated.
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    This regulation can cost our small businesses up to $4,000 for every new employee, and this new employee may only be employed for 4 to 6 months during our summer busy season.

    RSPA in their denial of our appeal states that our alternative fails to provide an equal or greater level of safety than placarding. We submit that the new RSPA regulations have not provided an increase in safety over the prior requirements for this industry, as illustrated by our flawless safety record.

    In closing, we ask again that you include legislation to waive the Federal placarding requirement for vehicles of 10,000 pounds or less vehicle weight carrying 15 or fewer 20-pound capacity cylinders of gas chlorine in intarstate commerce for the purpose of residential swimming pool maintenance.

    Thank you for this opportunity to be heard. I would be pleased to respond to any questions.

    Mr. PETRI. Thank you very much. Thank you both for your testimony.

    I had the opportunity to meet several of your colleagues and you yesterday and was very impressed in discussing the pool service industry; that it provided ideal employment for students right out of high school or as they were going to college, summer work, outdoor work. In fact, I think someone said they were responsible for over a thousand youngsters who now are businessmen and doctors and lawyers and so on, financing their education through this, and this is no longer possible because you have to be 21 to get a commercial driver's license.
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    So I do not know how they do cost-benefit analysis, but there is sort of a law of unintended consequences, and here is an example of drying up opportunity just in one firm over a period of years of a thousand youngsters nationwide and how many others are losing that opportunity.

    Now, in a tight labor market, I guess you can argue, well, they can find work in some other place, but then your industry is also becoming less profitable because of this sort of regulation. That means less revenue for the Government, and therefore not as much money available for food stamps and so on and so forth. So these things do not occur in a vacuum. There is a cost associated with regulation, as well as hopefully a benefit, and if you are unable to document a single instance where there has been any great problem and, on the other hand, you are able in just a few minutes to point out a number of quite severe dislocations and adverse consequences, it seems to me, this is a perfect example of we have a problem we ought to be trying to address, either by giving you a specific exemption or by improving the mandate to the Department to review and grant exemptions where they are worthwhile and have that be a real process so that you, and I am sure there are other industries that may have valid cases as well, are not just sent from pillar to post and run around a deep bureaucratic track until you lose interest and go bark up another tree, but, in fact, can get relief if it is meritorious.

    So we need to review this part of the law and provide for judicial or other oversight if the Department is not doing its job and it is never granting any exemptions, even though they tell us their procedure makes perfect sense from their point of view.

    So, in any event, I thank you. We are eager to work with you and others.
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    As you know, Mr. Gorham, this morning, we had a number of members from both sides of the aisle expressing a great deal of concern about the effect of this. It just occurs to me that if adding another person to this truck were to cut the rate of accidents in half, but if the accidents involved people on the truck as well as the general public, we would not have really gained anything because we are exposing twice as many people if we require two people on the truck instead of one.

    So it seems to me the barrier has to be fairly high as to what we are really gaining by putting more people in ''harm's way'' through this particular approach. Having people stand near where the accident is likely to occur as a matter of Federal law is not necessarily the best way of protecting the people. I mean, the people that work for propane delivery companies are citizens who deserve protection, too.

    So I hope we can sort through this and come up with a solution. I have a lot of people in my rural area who rely on propane. Actually, their lives are endangered if they do not get propane at a reasonable cost and in an efficient way because we get 23-degree-below weather. We have laws in our books against interruption of service, which is another cost factor often, because it is so important that there be a steady flow of fuel and access to it in this several weather condition.

    Anyway, I guess that is sort of a rambling comment on both of your testimonies. If any of you want to make any additional response or something, I would give you the opportunity to do that.

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    Mr. GORHAM. I would. I will take the opportunity.

    First, to correct an error, I misspoke. I said $332 million. It is $332,000. And I think it is important to keep in mind that very little, if anything, has changed in the world of LP gas transportation, the excess flow valves involved, their function, their reliability, or the industry's overall safety record. Nothing has changed in the past 2-year period that we are talking about here, except for DOT's understanding of the function of the excess flow valves.

    We are still using the same cargo tanks, the same pumps, the same valves. Incidently, pumps have been used in bobtail deliveries since the first bobtail. They were never equipped with compressors. The same hoses as we were 2 years ago and 5 years ago and 20 years ago. We have a great safety record.

    We as an industry now realize that we perhaps should have become involved more fully when these regulations were changed in 1989 to more stringently qualify valves, but, at the time, we had a hard time believing that DOT would ever interpret the rules as they now have; in other words, establish a requirement that no commercially available equipment would meet overnight, retroactively.

    Then we could have asked for and received reasonable phase-in times. Then we could have debated cost-benefit analyses. Then we could have had a Notice of Proposed Rulemaking. Then we could have had debate. We do not get that now, and I do not think it was DOT's intent then to require an instantaneous retrofit.

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    If you look at the language that went with the NPRM at the time for the HAZMAT updates in HM 183 back in 1989, there was no mention of how many thousands of dollars we would have to spend per truck. I think this is totally an unintentional thing, and we do not believe that they should be allowed to do this to us now.

    So, again, we share your hope and ask for relief. So thank you very much for the opportunity.

    Mr. PETRI. Thank you.

    Mr. Wallace, anything else?

    Mr. WALLACE. Yes, just one more thing, since you brought up the subject. For 35 years, we did have an extremely good match with college-aged students and providing them summer jobs. It is a good match for us because of their time schedule with schooling and their summer break. It corresponds with our busy season, obviously. And the other thing that it benefits them, more flexible—in most cases, we are very flexible with their school schedules for during the school season, and we are a little bit higher—we are an entry-level job. It is not like flipping burgers at the local hamburger stand, which is probably not the employment that most people would like to have if they have a viable option, and we provide a viable option for those people.

    I would just like to thank you for your kind comments.

    Mr. PETRI. Okay. And one other point that I was thinking of making on the unintended consequences for your industry was the point that was made that it takes 4 to 6 weeks, maybe a little longer, to get a commercial driver's license, and since you are seasonal, not only is there a cost getting someone certified, but if you wanted to discharge someone because they are slacking off, it is a lot harder to do that since they know it is going to be hard for you to replace them, and by the time you do, the season is over. So maintaining standards and efficiency within your work force is complicated by this sort of Government-imposed delay, and there is another unintended, but very real consequence.
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    Mr. WALLACE. Absolutely true.

    Mr. PETRI. Thank you both.

    Mr. WALLACE. Thank you.

    Mr. PETRI. We have one more panel, and I thank them for being so patient, Mr. LaMont Byrd, director, Safety and Health Department of the International Brotherhood of Teamsters, and Mr. Rick Inclima who is the director of Education and Safety of the Brotherhood of Maintenance of Way Employees.

    Someday, we are going to have to change that from ''brotherhood'' to ''sisterhood.''


    Mr. BYRD. That did not pass.

    Mr. PETRI. Well, its time will come, I suspect.

    Gentlemen, welcome. Let's see. Mr. Byrd?

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    Mr. BYRD. Thank you, Mr. Chair and subcommittee. My name is Lamont Byrd. I am director of Safety and Health at the International Brotherhood of Teamsters, and the Teamsters welcome the opportunity to comment in this hearing concerning reauthorization of the HAZMAT transportation program.

    We would like to commend the chair for conducting this hearing to obtain our input regarding this most important legislation. The IBT represents over 300,000 employees who are involved in the transportation of HAZMAT. These workers include tank truck drivers, drivers and dock workers in the freight industry, members in trucking-related industries, and some public sector members who are responsible for responding to traffic accidents and incidents.

    The IBT is very concerned about the health and safety of our membership and the general public. We are particularly concerned about the hazardous our members encounter while involved in the transport of HAZMAT, especially considering the significant increase in the volume of HAZMAT being transported by both truck and rail from Mexico, the lack of adequate worker training, and the need for stronger enforcement of HAZMAT regulations.

    The reauthorization of the HAZMAT transportation program must address the increasing volume of HAZMAT entering our country from Mexico. In Loredo, Texas, alone, up to 5,000 Mexican trucks cross into the U.S. each day. Neither Loredo nor any port of entry in Texas has a permanent inspection facility.

    The General Accounting Office found in their report that only 1 in 200 trucks are inspected, and even fewer are weighed. Forty-five percent of the inspected trucks have out-of-service violations, as compared to only 20 percent of trucks nationwide.
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    Even more disturbing is the fact that 25 to 30 percent of the Mexican trucks crossing the border are carrying HAZMAT, but according to a placard study of 4,405 trucks, only 4 percent of the trucks displayed a warning placard. The investigators concluded that the low percentage was due to noncompliance with HAZMAT regulations.

    A City of Loredo commission cargo inspection study found that of 400 shipments, roughly 90 percent carried materials which did not match the documentation presented by the driver. Recalling the ValuJet incident in Florida, the transportation and shipping of undeclared or hidden HAZMAT is an extremely dangerous practice.

    While the Department of Transportation has made modest efforts to enhance Federal enforcement efforts and assist States in upgrading State enforcement programs, Government studies and private investigative reports show that these efforts have not begun to solve the threat to highway and community safety, particularly in the area of safe HAZMAT transportation. Quite frankly, there seems to be more emphasis on how to speed up the inspection process than to ensure safe transportation.

    At Loredo, the truck volume is so heavy that one inspector is responsible for approximately 1,000 trucks per day. It is not uncommon to have 7 to 8 trucks per minute run through the line.

    My office was involved in an investigation of a HAZMAT incident that occurred last year which resulted in the hospitalization of three Teamster members in Texas. These members were unloading an unplacarded Mexican truck loaded with 34 gas cylinders. The dock workers encountered a leaking cylinder of what was later identified as hydrogen sulfide, a poisonous gas. Following the supervisor's instructions, these workers reloaded the cylinders onto the Mexican trucks and were overcome by the gas, causing them and another dock worker who was working in the vicinity to have to be treated by emergency medical personnel and be admitted into a hospital.
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    This incident is a perfect example of why it is essential to enforce compliance with HAZMAT regulations and to provide proper training and equipment to those workers who come into contact with hazardous materials.

    The Teamsters negotiated language into the national master freight agreement which required freight employers to develop the HAZMAT employee protection training program and provide comprehensive HAZMAT training to over 100,000 HAZMAT employees in the freight industry. The Teamsters also developed a supplemental training program to provide HAZMAT training to casual drivers and dock workers. However, there is still a tremendous need for training, especially among casual employees, and unavailability of funding significantly limits our ability to provide training to our membership.

    To give you an idea of what I am talking about with respect to casual employees, there are approximately 25,000 casual employees who are responsible for driving, loading, and unload trucks that transport HAZMAT. These members are referred to HAZMAT employers through Teamster hiring halls or referral lists and typically work for an employer for only a few weeks at a time. However, their HAZMAT employment is virtually continuous, shifting from employer to employer throughout the year, but because these drivers have no single employer, they are less likely to have received the training either under the provisions of the regulations or under our collective bargaining agreement.

    We recommend that the training grants for the nonprofit HAZMAT employee organizations, as provided in the Federal HAZMAT transportation law of 1994, be expanded to include HAZMAT instructors and front-line HAZMAT workers. We also recommend that the law be amended to increase the level of funding for the training grants and that you make the award of grants by DOT mandatory instead of being discretionary as is now the case.
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    The Teamsters feel that although it is appropriate and necessary for DOT to provide assistance information in consultation to motor carriers, the agency must first and foremost emphasize enforcement.

    The Teamsters recommend the following amendments to the HAZMAT transportation law. We would like to see an increase in the number of properly trained enforcement personnel and HAZMAT inspectors. We would like to see an increased emphasis on the inspections of trucks crossing into the U.S. from Mexico, and we would like to see an improvement in inspection facilities nationhood with special emphasis on the U.S.-Mexico border.

    In conclusion, we applaud this subcommittee's concern about HAZMAT transportation, and we are committed to working with you to develop programs for addressing the most serious safety issues.

    Thank you very much.

    Mr. PETRI. Thank you.

    Mr. Inclima?

    Mr. INCLIMA. Thank you.

    Good afternoon, Mr. Chairman, counselors. My name is Rick Inclima. I am director of Education and Safety for the Brotherhood of Maintenance of Way, BMWE. BMWE represents 42,000 men and women who repair and maintain the tracks, bridges, and buildings of our Nation's railroads. I am pleased to have this opportunity to appear today, even at this late hour, on behalf of rail labor to discuss hazardous material safety in rail transportation.
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    We respectfully request your support for strengthening the Hazardous Material Transportation Act, and in particular, broadening the scope of quality and quality of HAZMAT training conducted in the railroad industry. We also seek other safety improvements under the Act, which I will discuss further in this testimony.

    Currently, the scope of training under the Hazardous Material Safety Act is governed by the definition of HAZMAT employee. The definition as interpreted excludes a large percentage of the railroad population, including members of the BMWE and other non-operating crafts from the HAZMAT training requirements. Because of this, there are significant numbers of railroad employees who have no formalized training whatsoever in hazardous material recognition and response.

    We respectfully submit that the safe transportation of hazardous materials by rail would be greatly enhanced by expanding the training requirements under the Act, provide more railroad employees with comprehensive training on emergency recognition and response.

    It is important for you to understand that these employees do have a direct effect on the safe movement of trains, including those carrying HAZMAT. A lack of adequate training leaves reaction response by these employees to chance, and the potential ramifications could mean the difference between a small incident and a major catastrophe.

    A large percentage of non-HAZMAT rail workers spend virtually all their day out on the right-of-way. These rail employees are often called out at night, on weekends to check on unknown situations, to check on reported derailments, or to check on track and signal damage caused by accidents or derailments. In many instances, these employees are the first to arrive on the scene and are the first to discover or detect an unintentional release or potential release of HAZMAT.
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    These releases can occur anywhere, in the rail yard, on the industrial site, at any time, day or night. These employees who are going out to check on these issues receive no training on placard reading, hazard avoidance, emergency notification, or emergency response procedures. So these non-HAZMAT-trained employees are put in a Catch-22 type of situation because of the narrow interpretation of the law.

    It is oftentimes the untrained employee who discovers or detects the intentional release. Yet, he is provided little or no guidance or information or basic training on how to react to this transportation emergency to protect human health, the environment, and how to effectively initiate emergency response procedures.

    Before fire fighters, Operation Respond personnel, or emergency response teams can be dispatched to a railroad location, it takes a railroad field person, someone out in the field, initiate the emergency response sequence, but, yet, they are given no training on how to do that or how to recognize those conditions.

    Therefore, we ask you to support a broadening of the definition of HAZMAT employee in the HAZMAT Material Transportation Act. We believe that this would greatly enhance safety and the skills of the people in the field.

    In recognition of these training deficiencies, eight rail unions, in cooperation with the George Meany Center for Labor Studies in Silver Spring, Maryland, have been conducting HAZMAT training for rail employees since 1991. Funded by a grant from the National Institute of Environmental Health Sciences, this program has trained over 3,000 rail workers at the first responder level training under OSHA 1910.120, and nearly 600 more rail workers have received training from the union and the more advanced operations level training. For many of these employees, this is the only training they receive in the HAZMAT field.
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    We also have developed a peer training program funded in part by Section 5107(e) of the Hazardous Material Transportation Act. Two unions, the Transportation Workers Union and the Carmen Division of the Transportation Communications Work Union, have been involved in a peer instructor training program sponsored by a grant through the George Meany Center. These peer instructors, with technical assistance and support from the Meany Center, have been delivering HAZMAT training to Conrail, TWU, and TCU members in a cooperative labor-management effort, the first such labor-management effort in HAZMAT education in the industry.

    Of major concern to rail labor is an apparent lack of funding in the Senate commerce ISTEA bill, S. 1267. Without these appropriations, funding to TWU, TCU, the peer instructor training program may be unavailable through DOT. This will mean an end to our program and an end to the peer instructor training network at the George Meany Center. This potential funding crisis comes at a time when rail labor is making meaningful progress in expanding the peer instructor training program to other carriers.

    Therefore, we respectfully request the subcommittee to assure appropriation of funds for Section 5107(e), training grants, in the reauthorization of the Hazardous Material Act.

    Equally important to rail transportation safety is the necessity to ensure that each trained dispatching center has an accurate training consist or manifest list for all trains being dispatched which carry hazardous materials. The train dispatch center must know the location and placement of HAZMAT cars on a train and must have immediate access to information regarding the potential health and environment hazards of these commodities. The accuracy of this information at the dispatching center is imperative for initiating emergency response procedures. This is particularly critical during railroad transportation emergencies where communications may be disrupted or when a train crew has become incapacitated.
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    Statistics show there are over 1,000 non-accident related releases of hazardous materials on the railroad each year. The rail industry has experienced 189 accident-related releases between 1991 and 1996. Therefore, we feel it is absolutely imperative to public and worker safety that rail employees have the information, skills, and training necessary to recognize and properly react to emergency releases of hazardous material.

    Another issue which needs to be brought to the attention of the committee is the important role of mechanical inspection of rolling stock. Recent codification of regulations have allowed a loophole which would permit cursory inspection by train crew personnel. Under this loophole, mechanical inspections are performed by rail personnel whose primary function is to move equipment and materials. These employees, operating craft employees, are not properly trained or equipped to do the mechanical inspections. I would liken it to an electrician and a mason. They are both highly skilled craftsmen, but they are not interchangeable, and the same goes for the train crews and the mechanical people. They are highly skilled in what they do, but they are not interchangeable crafts.

    With the increasing number of derailments occurring throughout the Nation's railroads and the serious problems now being realized as a result of various mergers and acquisitions, the increased risk and possibility of a catastrophic release, in our opinion, is imminent. A proper mechanical inspection by a fully qualified equipment mechanical inspectors is the first line of defense in preventing catastrophic release of hazardous materials.

    Accidents involving HAZMAT continue to be a major concern for operating crews. One only need to look at the daily news to see that these types of action can and do happen on an alarming basis. Just 4 days ago, thousands of residents were evacuated from their homes in Appleton, Wisconsin, after a train derailed that was carrying propane. While, fortunately, there have not been any recent deaths from tank car ruptures, it should be obvious that we have been very lucky instead of very safe.
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    Another aspect of rail safety and hazardous material transportation involves the Federal Railroad Administration. In 1996, there were 1.9 million carloads of hazardous material transported by rail. This is approximately 30 percent more than was transported in 1990. However, there has not been a corresponding increase in FRA inspectors to oversee the increased carload and traffic density. FRA is understaffed, and despite its best efforts, it is unable to conduct the number of inspections and oversight reviews necessary to reasonably assure rail safety.

    A 1975 report conducted, I believe, by the Government concluded that FRA needs an additional 400 inspectors just to carry out its 1975 workload. FRA's personnel shortages are further exacerbated now by the manpower requirements of FRA's new safety assurance and compliance program and the rail safety advisory committee initiatives. We support these important programs, and we respectfully request an increase in FRA funding to permit the agency to increase the number of FRA field inspectors and personnel as identified in the 1975 report.

    In summary, Mr. Chairman, rail labor urges the committee to strengthen requirements of the Act to require proper mechanical inspections by qualified mechanical inspectors for all trains carrying hazardous materials prior to movement. We urge the subcommittee to strengthen requirements for accuracy and transference of train consist information to the dispatching centers and train crews, and to further enhance and broaden the scope of training requirements for transportation workers involved in hazardous material transportation and emergency recognition and response. We urge increased appropriations for Section 5107(e) training grants for nonprofit organizations under the Hazardous Material Transportation Act. This money is used to train instructors for delivering urgently needed HAZMAT training.
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    Lastly, we request your support for additional funding for the Federal Railroad Administration in order for the agency to conduct increased compliance, inspections, safety oversight reviews, and rulemaking procedures.

    On behalf of rail labor and in the interest of public and worker safety, I would like to thank you, Mr. Chairman and members of the committee, for allowing us to appear here today, and we would be happy to answer any questions you have at this time.

    Thank you

    Mr. PETRI. Thank you. Thank you both for your testimony.

    Mr. Inclima, you referred to the recent derailment in Appleton, which is right on the border. I represent part of that.

    Mr. INCLIMA. Yes, I understand that.

    Mr. PETRI. And I am very sensitive to rail safety issues because we have a rapidly rail growing business in our part of the world, but, also, about 2 years ago now, we had a major derailment on Weyauwega, Wisconsin, which involved clearing out the whole town for the better part of a month, and you can imagine someone knocking your door at 2:00 in the morning or whenever and saying, ''Get up and leave,'' and everyone had to get out and not being able to go back for a month. There is a cat there starving and all of these sorts of unintended consequences, but, fortunately, no life was lost, but there was a tremendous risk of that. The whole area was cordoned off for a considerable amount of time. A crew had to be brought in to try to do a controlled burn——
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    Mr. INCLIMA. Burn-off.

    Mr. PETRI. ——of all of this, and helicopters and so on. It was quite a thing.

    So, actually, the railroad personnel were—it was not in any way their fault. There was some crack in the rails, I guess, that had not—it had been just inspected, but it had not been caught, and this happened. They worked very, very well in helping to coordinate safety programs in that area on the cleanup programs, but you are right. We probably do need to improve training for rail personnel and have them become part of this whole—even more a part of this whole team, and we will be working carefully with people in the Rail Safety Administration and others on what sort of authorization they need for their funding levels, for grants so that these sort of programs can be funded.

    Mr. INCLIMA. I appreciate that.

    Mr. PETRI. Mr. Byrd, you know the committee did go down to the Mexican border last Congress for a series of hearings, and I think Teamster representatives were there as well. So we are trying to educate ourselves on some of these border safety issues, in particular. It is a major concern. I would be eager to work with you and the Teamsters as this moves forward, their ongoing negotiations, as well as legislative initiatives. I think our Government is negotiating with the Mexican government on various non-border procedures for trying to help screen and inspect people, as well as at the border where it is pretty congested.

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    So we thank you both for coming and for your patience. It turned into a full day.

    Mr. INCLIMA. Thank you, Mr. Chairman.

    Mr. BYRD. Thank you.

    Mr. PETRI. And with that, this hearing is adjourned.

    [Whereupon, at 4:18 p.m., the subcommittee was adjourned.]

    [Insert here.]