Segment 2 Of 2     Previous Hearing Segment(1)

SPEAKERS       CONTENTS       INSERTS    
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REAUTHORIZATION OF THE HAZARDOUS MATERIALS TRANSPORTATION PROGRAM

Wednesday, February 10, 1999

U.S. House of Representatives,
Subcommittee on Economic Development, Public Buildings, Hazardous Materials, and Pipeline Transportation,
Committee on Transportation and Infrastructure,
Washington, D.C.

    The subcommittee met, pursuant to notice, at 10:04 a.m., in room 2253, Rayburn House Office Building, Hon. Bob Franks [chairman of the subcommittee] presiding.
    Mr. FRANKS. Good morning. The subcommittee will now come to order.
    I wish to welcome both members and our audience to the first hearing of the new Subcommittee on Economic Development, Public Buildings, Hazardous Materials and Pipeline Transportation for the 106th Congress.
    As noted by the subcommittee's new title, the jurisdiction of this subcommittee has expanded to include hazardous materials transportation, on which this first hearing will focus, as well as the responsibility of overseeing the Pipeline Safety Program of the Department of Transportation.
    As chairman, I look forward to addressing the new areas of jurisdiction as well as continuing the subcommittee's role of overseeing the Federal Government's office real estate portfolio and administering to the needs of economically distressed areas through the Economic Development Administration and the Appalachian Regional Commission.
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    I would like to extend a warm personal welcome to the distinguished ranking member, Mr. Wise of West Virginia. Bob and I have served together in leadership roles in the former Subcommittee on Railroads, and I am pleased once again to serve with him on this new subcommittee. We have shared a number of important mutual interests in the past, and I know we will continue to do so.
    Mr. Wise I know has a longstanding history with the jurisdiction of this subcommittee, as he was the chairman of the former Subcommittee on Economic Development. When the Public Buildings Subcommittee expanded its jurisdiction to include economic development matters in the 104th Congress, Mr. Wise became its ranking member.
    Also, I want to recognize the returning members to this subcommittee—Mr. LaTourette, Dr. Cooksey, and Ms. Norton—and express my intention to continue the collegial and bipartisan spirit that has always been associated with this subcommittee. I would also like to note that Dr. Cooksey will be returning to serve as the vice chairman of this new subcommittee.
    In addition to myself, we have some additional members who will be joining us who are entirely new to the subcommittee, and I will try to welcome them when they come in, but just briefly, they are Mr. Ewing, Mr. Wise, and Mr. Shows.
    I look forward to a very productive schedule for the subcommittee this Congress, and I am pleased to be serving with my colleagues on this important new committee jurisdiction.
    I would now like to recognize the distinguished ranking member of the subcommittee, my friend, Mr. Wise from West Virginia.
    Mr. WISE. Mr. Chairman, thank you very much, and it is indeed a pleasure to be sitting beside you again. I guess they have sort of switched our tracks a little bit from where we were, but we are not on the side, by any means. It is an eclectic jurisdiction this committee has. It is economic development, pipeline transportation, General Services Administration, general buildings and grounds, and hazardous materials transportation. I think we have got a deadlock on anybody trying to move toxic materials through a Federal building that has got an EDA grant.[Laughter.]
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    Mr. WISE. But one good thing about this committee's jurisdiction is that for the first time in my experience on this full committee, it does bring together the whole gamut of hazardous materials transportation, whether on the road or by railroad, and so no longer are we caught in this dual jurisdiction. And I think that is very important.
    Today we are going to hear, Mr. Chairman—and I want to thank you very much for scheduling this hearing and scheduling it in such a timely manner. Today we are going to hear about the Uniform Standards Program. West Virginia is one of the States part of the pilot program, and I am pleased that we will also be submitting written testimony from the chairman of our West Virginia Public Service Commission, Charlotte Lane. We will also hear from the railroads and rail labor about work conditions and safety standards. And having been the ranking Democrat on the Railroad Subcommittee, I look forward to seeing some of these issues before us as well.
    As a member from a rural district, I have some very specific concerns about hazardous materials issues. Almost all the emergency responders in the 20 counties I represent are volunteers. That says a lot about the willingness of people to look after their own community. However, we cannot expect volunteers to carry the burden of public safety without adequate standards, placarding, training, and equipment.
    We have had numerous incidents in our area in West Virginia, all too many dealing with hazardous materials. Last year Interstate 64 shut down for a day, stopping traffic in both directions due to two chemical tankers losing control on a main four-lane highway.
    In June 1997, there was a chemical release in Scary, West Virginia, when a train carrying chemicals rear-ended a coal train. There was a hazardous materials derailment near Henderson, West Virginia, and we have here today Chuck Blake, director of the Mason County Office of Emergency Services here to talk about the Henderson incident today, so I will leave that to him.
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    Additionally, we are going to have testimony from the chairman of our West Virginia State Fire Commission, Chief Jim Fife, who is joined as well by his wife, and who is from White Sulphur Springs, West Virginia.
    Rural communities, and urban communities, too, face many of the same problems. Rural communities often have limited egress because people live up in mountain hollows, and if the highway or the railroad tracks cross that hollow, that may be the only way in and out, and any kind of accident will block that hollow. Thankfully, no one in our communities has been seriously injured, but we want to make sure that that never happens.
    I want to speak for just a second, Mr. Chairman, about one program called Operation Respond. Operation Respond has developed software allowing emergency response providers faster and more accurate information about hazardous materials involved in a train or highway accident. As you already know, they are testifying here today so they can tell their own story, but I would like to say just a few things about them.
    In 1995, in an effort to undertake further research and facilitate both private and public funding, Operation Respond became a nonprofit institute. The Federal Highway Administration, the Research and Special Projects Administration, the Federal Railroad Administration, and NIOSH, the National Institute for Occupational Safety and Health, have come together to fund this project, joined by rail and motor carriers that also lend their support.
    Additionally, I would like to commend my colleague from West Virginia, the ranking member of the Subcommittee on Surface Transportation, or Ground Transportation, as it is now known, Congressman Nick Joe Rahall, for all the work he has done with and on behalf of Operation Respond over the past few years. He is currently a member of their national steering committee and was a key person introducing the OREIS software system around the country.
    Aptly, OREIS is now installed following the accident at Scary. We were able to get Operation Respond to install OREIS software in my district, and we have now set up the first statewide toll-free Operation Respond access at the West Virginia Poison Control Center in Charleston. What this means is that any emergency responder anywhere in the State now has access to Operation Respond.
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    Mr. Chairman, I would like to put the rest of my statement into the record. I greatly appreciate this very timely hearing and look forward to working with you to develop this much needed legislation.
    Thank you.
    Mr. FRANKS. The submission of all Members' statements to the record is hereby ordered without objection.
    I would like to welcome Ms. Norton back to the subcommittee and ask if she has any opening remarks.
    Ms. NORTON. Thank you, Mr. Chairman. Just brief opening remarks.
    I would note that the committee has a new chairman and new jurisdiction, and I very much look forward to serving with you, Mr. Chairman. I have been on the subcommittee since I came to Congress in 1991, and this is the first time we have had hazmat jurisdiction, and I regard this hearing as very important for the way in which it will help us lay the groundwork for the reauthorization of the Hazardous Materials Transportation Program.
    Among the many issues that interest me is the definition of a hazmat employee so that we have to clear up why certain workers are covered and why, as some claim, they should be removed. It seems to me that the burden is on those who want to remove them.
    I am also interested in the shared jurisdiction of OSHA and DOT. I recognize that shared jurisdiction can cause bureaucratic problems, the bane of my existence; however, the two agencies are in the midst of joint rulemaking to clarify their respective jurisdictional authority.
    I would be interested in seeing the outcome of their effort before running forward to make changes, but I remain open to what we learn in this and future hearings.
    Thank you very much, Mr. Chairman.
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    Mr. FRANKS. Thank you.
    The purpose of today's hearing is to receive comments and review issues involved with reauthorizing the Hazardous Materials Transportation Program administered by the Research and Special Programs Administration, RSPA, of DOT. The oversight of hazardous materials transportation, whether by motor carrier, rail, or vessel, is a very serious issue that has serious national implications. Currently, there are approximately 3 billion tons of regulated hazardous materials transported annually, with approximately 1,200,000 movements of regulated hazardous materials every day.
    Considering this rather extraordinary volume, the safety record of hazardous materials transportation remains good. However, as the number of movements increases each year, we must remain vigilant to ensure that we are providing all necessary safeguards to decrease the risks inherent with transportation of this potentially dangerous material.
    The Office of Hazardous Material Safety within RSPA is the primary entity responsible for making sure that these movements occur in the safest and most efficient manner. The office, pursuant to the legislation establishing DOT's responsibilities, executes this responsibility by defining what is considered a hazardous material for transportation purposes, prescribing the proper packaging requirements for transport, and educating the industry, emergency responders, and the public on hazardous materials transportation safety. Additionally, RSPA administers a grant program for the training of emergency responders.
    The last reauthorization of this program was in 1994. In the 105th Congress, a hearing was held on reauthorization, and efforts were made to pass a measure as part of the TEA 21 bill, also as a free-standing measure. However, legislation was not completed prior to adjournment.
    Since the hearing in 1997, a number of issues have come to light from both the labor and industry perspective. This hearing has been designed to provide us an opportunity to hear about these issues, as well as review some of the issues that were of concern during the past efforts to reauthorize this important program.
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    We will also be hearing from representatives of the emergency responders who, I think very correctly Congressman Wise indicated, are an absolutely key feature in this discussion.
    It is now my pleasure to recognize a colleague from my home State, a distinguished former member of the General Assembly, mayor of the city of Paterson, now a Member of Congress from the 8th District, my friend, Bill Pascrell.
TESTIMONY OF HON. BILL PASCRELL, JR., A REPRESENTATIVE IN CONGRESS FROM NEW JERSEY

    Mr. PASCRELL. Mr. Chairman, I appreciate your affording me the opportunity to testify before this very, very important subcommittee on what I think is a very critical matter. Unfortunately, I found myself in the same position during the last Congress, testifying before the Surface Transportation Subcommittee about the dangers presented by the transportation of hazardous materials. It is my sincere hope that we will reauthorize this very important program this year and take the important step of ensuring that permits are only issued to those haulers who have met the highest standards of safety.
    I became intimately acquainted with the dangers of a lackadaisical hazardous materials transportation permitting process almost a year and a half ago. On October 20, 1997, a truck carrying hazardous materials caught fire while traveling on Interstate 80 in Paterson, New Jersey. It caused the evacuations of dozens of nearby residences and businesses and shut down Route 80 for 5 hours both ways. Picture that. Two members of the Paterson Police Department had to be hospitalized and treated for chemical inhalation.
    The police later determined that the fire was caused when two chemicals spilled in the truck and inadvertently mixed. Fortunately, thoughtful action by a passing motorist who forced the driver of the truck to pull over and the quick response of well-trained public safety personnel prevented this accident from becoming a disaster.
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    A detailed analysis of the carrier involved in this accident brings me to the core of the problem. This particular company has been involved in 46 spillage incidents since 1984, causing spills that have cost more than $100,000 to clean up. At the time of the spill, their safety record hadn't been reviewed in over 3 years.
    After some research, I was stunned to learn that the permits held by companies that haul hazardous waste are not subject to annual review. Under existing statutes, once a hauler obtains a permit, they can maintain it simply by reapplying yearly and paying a $300 application fee. It has almost gotten to the point where we could say that these things are held forever, if you look at the record.
    There is no automatic safety review. The Federal Highway Safety Administration maintains safety records and conducts safety reviews, but does not conduct annual reviews.
    I believe that the current policy is far too relaxed for a country that has about 500,000 shipments of hazardous waste traveling its roads every day, not just on the Route 80's of this country, but on our local streets and roads, through densely populated areas and not so densely populated areas.
    In 1997 alone, there were almost 12,000 incidents involving hazardous materials on America's highways, costing $26 million in damages.
    In my home State of New Jersey, and in your home State, Mr. Chairman, there were 283 incidents in 1997, causing almost $3.5 million in damages. Consequently, in the 105th Congress, I introduced H.R. 2806, a bill that would amend the United States Code to require an annual safety review. Specifically, a company will not be able to renew its permit to transport hazardous materials unless the United States Department of Transportation determines that the hauler has and will be able to meet certain safety standards.
    During the process of successfully reauthorizing the ISTEA bill last year, I worked with Senator Bob Torricelli, from New Jersey, to include this legislation in the large authorizing bill. The Senate version of BESTEA included a provision that would have instructed the United States Department of Transportation to initiate a study to determine the benefits of implementing a uniform permit program for high-risk and hazardous waste carriers. The study would have identified and evaluated alternative regulatory methods, including linking the yearly renewal of safety permits to favorable annual reviews. Unfortunately, this interesting first step was stripped from the TEA 21 in conference.
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    I believe that the legislation mandating an annual safety review, which I have recently reintroduced and hope this subcommittee will consider when drafting comprehensive legislation, is grounded in common sense. Critics argue that this initiative would inevitably lead to the creation of a new bureaucracy. I respond to that criticism by pointing out that the Department already reviews permits on a yearly basis, maintains safety and transportation data on haulers, and already conducts periodic reviews. This legislation simply makes these reviews more frequent and mandates that we no longer award permits unless safety standards are met. It is the right approach. It is the reasonable approach.
    I appreciate this opportunity to testify. I urge my colleagues to support this initiative, Mr. Chairman, and I ask you—these are our wives and children and our families at stake here. You have already pointed out in your introductory comments how we have increased the shipment of hazardous materials over the past 10 years. Who knows where it will be 5 years from now?
    If we cannot inspect those vehicles that move this material year by year and simply carte blanche give a permit simply because one pays $300 without reviewing the vehicle, I think that in this day and age is absurd. And I ask that this committee take full responsibility to move in terms of what we have suggested here.
    I appreciate your time. I am open for any questions.
    Mr. FRANKS. Mr. Pascrell, thank you very much for underscoring something that we can never lose sight of, and that is that safety needs to be paramount in any discussion concerning the transportation of hazardous materials. I thank you for directing the subcommittee's attention to an important element that would help to contribute to that focus on safety, and I can assure you we will be in discussions with you as we move forward with this bill.
    Are there any questions for Mr. Pascrell? Mr. Wise?
    Mr. WISE. Mr. Chairman, I would just like to join in thanking Mr. Pascrell for bringing this to the committee's attention. My hope is that with the advances in DOT's computer systems, in the near future an annual safety review should become a routine matter that can be accomplished in minutes. These reviews can identify carriers with a history of safety problems, and the carriers can then be reviewed in more depth to determine whether DOT should withhold a permit renewal. Your proposal, I think, improves public safety and keeps dangerous carriers off the road, and along with the chairman, I will look forward to working with you as this moves along. And my hope is we can move this thing along in a fairly quick fashion.
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    Mr. PASCRELL. Thank you.
    Mr. FRANKS. Seeing no other questions, Mr. Pascrell, thank you for joining us this morning.
    Mr. PASCRELL. Thank you, Mr. Chairman.
    Mr. FRANKS. I am particularly pleased now to welcome the Administrator of RSPA, Ms. Kelley Coyner. As she is taking her seat, I would like to read a letter from one of our colleagues, a member of this subcommittee who asked me to read this letter.
    ''Dear Mr. Chairman and Members of the Subcommittee: I want to apologize for not being with you today for the start of this hearing on the reauthorization of the Hazardous Materials Transportation Program. Unfortunately, the full House Agriculture Committee, of which I am subcommittee chairman, is marking up legislation that I have authored. This markup requires my presence, so I will not be able to join you this morning; however, this hearing on the reauthorization of HMTA is of great interest to me and my constituents, and I will attend this hearing as soon as possible.''
    ''Because of my absence this morning, I would ask the chairman, if there are no objections, that I may be able to submit written questions to the DOT within 5 legislative days of the conclusion of this hearing.''
    ''Thank you for your cooperation. Sincerely, Thomas W. Ewing, Member of Congress.''
    Seeing no objection, so ordered.
    Ms. Coyner, thank you very much for joining us this morning. We look forward to your testimony.
TESTIMONY OF KELLEY S. COYNER, ADMINISTRATOR, RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION, ACCOMPANIED BY ALAN I. ROBERTS, ASSOCIATE ADMINISTRATOR FOR HAZARDOUS MATERIALS SAFETY, U.S. DEPARTMENT OF TRANSPORTATION
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    Ms. COYNER. Thank you, Chairman Franks and Ranking Member Wise. It is a pleasure to appear before your committee, and I appreciate the invitation to discuss this important issue of hazardous materials safety today. I am joined today by the Associate Administrator of the Office of Hazardous Materials Safety, Alan Roberts.
    We have built a hazardous materials program that protects the public through strong safety standards, ensures that people know how to comply with these standards, and responds through strong enforcement to stop illegal shipments and activities. We believe that this approach works well.
    Strong, uniform, national, and international standards are essential for the safe transportation of hazardous materials. These standards must provide practical solutions and take advantage of current technology to improve safety.
    When we extended the Hazardous Materials Regulations to all intrastate highway shipments of hazardous materials, we gave regulatory flexibility to small businesses who transport hazardous materials in support of their trade and when farmers transported agricultural products short distances.
    Through a negotiated rulemaking, we have reached an agreement to take the next steps to improve the safety of propane and other liquified compressed gases through a practical approach using state-of-the-art technology. We expect to publish a Notice of Proposed Rulemaking in the next several weeks.
    In our efforts to continue to provide for the Nation's safety, we will address issues related to DOT's jurisdiction over hazardous materials workers in transportation. We believe it is important to do this through a rulemaking rather than through legislation because this is a complex area which will benefit from broad participation.
    Strong safety standards are critical, but alone they are not effective if shippers and carriers do not know how to comply with them. The vast majority of hazardous materials incidents are caused by human error, so we have increased our efforts to promote compliance by strengthening awareness of regulations through technical assistance and additional training resources. To that end, in the President's FY2000 budget we have requested six new positions to extend these efforts and better target compliance in high-risk areas.
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    We provide easy access to hazardous materials information in a variety of ways. The Hazardous Materials Information System now allows easy entry to vital hazardous materials data and information by industry and the public, and we have expanded our operating hours for our information center to give more information to users. We have upgraded our Internet site to expand the number of topics, which include training and regulatory information, and allow users to download training modules for their use.
    We have also included a description of computer problems which may occur in the year 2000 and provided a link to the Department's Y2K clearinghouse. We are expanding our participation in our successful Cooperative Hazardous Materials Enforcement Development Program, also known as COHMED, by reaching out to more of the hazardous materials community to provide cost-effective training.
    Although training and public education are valuable compliance tools, there will always be people who refuse or neglect to comply with our safety standards. We need to continue addressing that particular problem.
    We have filled 15 new hazardous materials inspector positions and established another hazardous materials safety regional office in Atlanta, a major hub of hazardous materials transportation activity. We also continue to conduct joint inspections with other Federal agencies and the States.
    We are exploring ways to issue emergency orders to stop unsafe practices that pose an immediate threat to life, property, and the environment. Currently, an inspector does not have explicit legal authority to quickly stop such hazardous materials shipments. A box of oxygen generators, for example, being loaded onto a passenger aircraft or a truck carrying drums that are leaking hazardous materials can continue to move some distances before legal action can be taken.
    In another area, one of the greatest risks posed by hazardous materials are shipments that do not indicate they are actually hazardous materials. These undeclared shipments are often in small unmarked packages. They can be dangerous because they are not properly packaged and do not meet our safety standards. We will be seeking clarification of DOT's authority to open and examine packages DOT inspectors believe contain hazardous materials.
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    In addition to safety improvements, we need to provide for rapid and appropriate response to hazardous materials incidents when they occur. In the President's fiscal year 2000 budget, we are seeking to raise the funding level of the hazardous materials grant program to $14.3 million to provide emergency response planning and training for States and Indian tribes.
    Moreover, consistent with the administration's policy to introduce user fee funding where appropriate, we are seeking to fully fund RSPA's entire hazardous materials program through user fees beginning in the 4th quarter of fiscal year 2000. Following enactment of this proposal, a rulemaking action would be initiated.
    Finally, the Department is always looking for ways to improve the way we do business and to increase our effectiveness. Together with the inspector general and our colleagues in the other modes, we are conducting a DOT-wide hazardous materials program evaluation to see how we might optimize hazardous materials safety. I look forward to these results later in the year and sharing them with you.
    I thank you for your time, and I would be pleased to answer any questions you may have.
    Mr. FRANKS. Ms. Coyner, we are delighted to have you with us today, but I have to express some measure of disappointment, and the disappointment flows from the fact that it was our understanding that at this hearing DOT would be addressing its specific proposal for the reauthorization of the hazardous materials program. Can you tell us why we are not hearing from you about the specifics of that proposal today?
    Ms. COYNER. The reason for that, sir, as I think you are probably aware, is we have to receive clearance from the Office of Management and Budget before we can release a proposal, and it has not fully cleared. We will and have continued to work with you and the members of the staff to talk about particular issues of concern and offer any technical assistance that we might on the drafting of the bill. We expect that we will have something in very short order, perhaps as early as the end of the week or early next week.
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    Mr. FRANKS. OK. In the absence of that measure to evaluate, there have been a number of issues that have been raised over the last several years concerning the definition of a hazmat employee, having not only to do with who is covered but also with the proper application of the definition. Could you briefly discuss some of those related issues?
    Ms. COYNER. I think you are referring in particular to the issue of the Department's jurisdiction as opposed to the jurisdiction of the Department of Labor through its Occupational Safety and Health Administration. That was an issue that was, of course, focused on in great detail in the last Congress and continues to be one that we devote a great deal of time to.
    After we reviewed this issue, it is our conclusion that the appropriate resolution of this really comes through a rulemaking process rather than a legislative approach. And the reason for that is it involves a very wide number of issues that are better subject to a broad participation if we do it through a rulemaking process.
    I would like to share what we consider the criteria for determining that sort of jurisdiction in broad terms.
    The first is that we believe we need to have a credible level of expertise on a particular issue in order to assert jurisdiction for the Department of Transportation. The second is that we also have to have a credible capability of enforcing the standards once they are applied.
    The rulemaking is underway. There has been preliminary notice about the issues involved in that, and we expect later in the year to issue a Notice of Proposed Rulemaking on those jurisdiction issues.
    Mr. FRANKS. I am going to recognize the fact that this hearing today has six panels that are being called before us, so I am going to limit my questions of any given witness. And as Mr. Wise and I have known over the last several years, I have been relatively lenient in allowing members to continue on with questions, but I am going to ask everybody if they can today to recognize that we have six panels to get through. So I am going to be limiting myself, and I will make everybody aware of when they have 1 minute left under our 5-minute subcommittee rule. I will not cut anybody off, but if people would be mindful of the clock, I would appreciate it. It would allow us to get out of here before midnight.
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    Mr. Wise?
    Mr. WISE. I appreciate that admonition. I was just coasting along listening until you said until midnight.
    [Laughter.]
    Mr. WISE. That has a way of grabbing people's attention.
    Ms. Coyner, I want to thank you and your staff for taking the time to brief my staff and me a week or so ago and bring us up to speed on some of the issues. I would like to follow up on the chairman's question, actually. As you know, there is a lot of discussion about what constitutes a hazmat employee, some groups believing that the current definition covers employees who may be exposed to hazardous materials through an accident.
    Does the Department at this point interpret the current definition of ''hazmat employee'' to include such individuals as rail maintenance of way workers, signalmen, and mechanical inspectors?
    Ms. COYNER. We do, sir, interpret it, our regulations, in that manner. But I think that it is important to know that there are really two parts to the question. One is whether or not they are covered by the definition of hazardous materials employee, and then, secondly, what sort of training they should receive.
    There has been a great deal of attention focused on the question of compliance with that regulation and what the appropriate compliance is. And we have taken steps to work with the interested parties, those employee organizations representing those categories of employees, as well as industry, to have that kind of discussion to figure out where they should fit in.
    There is a current structure at the Federal Rail Administration that allows for a discussion between labor and management. We think that is an appropriate venue for addressing that. But there clearly is a need to focus on the compliance efforts with this requirement.
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    Mr. WISE. As the Department has prepared its reauthorization legislation, is the hazmat employee definition in your proposal going to continue to cover maintenance of way workers and signalmen?
    Ms. COYNER. I think what you are referring to, sir, is we had a proposal last time that would have perhaps limited the Secretary's discretion in terms of a determination of who a hazardous materials employee is. We don't anticipate taking that approach in our upcoming legislation.
    We think it is important to focus on those employees who are involved in the safe transportation of hazardous materials transportation, determine who needs awareness training and who needs response training. And I think that what we will find is that the categories of employees that you refer to fall at a variety of places along the continuum. Some of them require awareness training, and some of them require response training.
    Mr. WISE. Are you going to cover this in the legislation you are proposing?
    Ms. COYNER. We don't believe it needs to be addressed in the legislation because we believe that they are covered under our current authorities. What we believe needs to be focused on is really a programmatic question of making sure that we have compliance with the requirements for training.
    Mr. WISE. I will then defer getting into another interesting topic, Mr. Chairman, that of the agricultural exemptions. Maybe Mr. Ewing will want to bring that up at another date, I suspect.
    Thank you.
    Mr. FRANKS. Thank you, Mr. Wise.
    Ms. Norton?
    Ms. NORTON. Thank you, Mr. Chairman.
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    I have just one question. I am interested in the user fee approach you appear to be undertaking where safety appears to be tied to the response from the industry. I would be interested in your analysis, I would be interested in what kinds of analysis you are using to assure that the necessary amount is collected in order to conduct the program in all of its facets and elements. And what would happen if insufficient revenues were collected? Is there any back-up plan with respect to carrying out the safety mission?
    Ms. COYNER. Congresswoman, I appreciate your questions, and I think you have hit on a really key issue about applying a user fee to this kind of program.
    We have another similar program in the pipeline safety area where we have successfully used user fees for a number of years and have determined the user fee amounts in order that we actually come up with amounts that meet those needs. So we are confident that we can do that, but I think the really critical issue here is that we are seeking authorization from this Congress before we proceed with a user fee proposal. That is the first point.
    The second point is that we would then enter in a rulemaking procedure that would involve the whole range of parties to ensure that we meet those safety needs.
    Ms. NORTON. Thank you, Mr. Chairman.
    Mr. FRANKS. Ms. Coyner, just one follow-up to Mr. Wise's question. You indicated that the Department's in discussion with constituencies of rail labor. I think that is appropriate. Are the railroads involved in those discussions as well?
    Ms. COYNER. I think what is important to note is that this has become an issue that has been a particular focus really in recent days. We have had a discussion about the coverage of the Department's regulations and then discussion about compliance, and we discussed with some of the members of the rail community and trade associations. We believe the appropriate way to address the compliance issues is through the labor-management structure of the Federal Rail Administration.
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    There have not been discussions to date about how to deal with that, but I am committed to making sure that the rail industry and the labor organizations are both involved in this discussion.
    Mr. FRANKS. Thank you very much.
    Dr. Cooksey, welcome. Any questions for Ms. Coyner?
    Mr. COOKSEY. No. I need to catch up. I have been at Ag. Thank you.
    Mr. FRANKS. Mr. Ewing, welcome.
    Mr. EWING. Nothing at this time.
    Mr. FRANKS. Ms. Coyner, thank you very much.
    Ms. COYNER. Thank you.
    Mr. FRANKS. We appreciate your attendance today. I would like to welcome the next panel: Mr. Rick Inclima from the Brotherhood of Maintenance of Way Employees on behalf of the Rail Labor Division of the Transportation Trades Department of the AFL-CIO; and Mr. Ed Wytkind, executive director of the Transportation Trades Department.
    Gentlemen, welcome. Mr. Inclima, welcome. Proceed.
TESTIMONY OF RICK INCLIMA, DIRECTOR OF EDUCATION AND SAFETY, BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, ON BEHALF OF THE RAIL LABOR DIVISION, TRANSPORTATION TRADES DEPARTMENT, AFL-CIO; AND EDWARD WYTKIND, EXECUTIVE DIRECTOR, TRANSPORTATION TRADES DEPARTMENT, AFL-CIO

    Mr. INCLIMA. Good morning, Mr. Chairman and members of the subcommittee. My name is Rick Inclima, director of education and safety for the Brotherhood of Maintenance of Way Employees. On behalf of the Rail Labor Division of the Transportation Trade Department, AFL-CIO, we appreciate this opportunity to provide testimony to the subcommittee. We have submitted a detailed written statement to the subcommittee, and I will try to summarize for you why we respectfully request your support in strengthening the Hazardous Materials Transportation Act.
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    There are four general areas of concern that we ask the subcommittee to consider.
    First, we seek your support in modifying the definition of ''hazmat employee'' under the act so as to clearly extend DOT training requirements to field personnel who build, inspect, and maintain the railroad infrastructure. Currently, the definition of ''hazmat employee'' excludes a large percentage of the railroad population, including BMWE, Brotherhood of Railroad Signalmen, and certain other non-operating crafts. There is no clear requirement or enforcement mechanism under the act to provide training to these employees, even though they are directly responsible for the safe movement of trains and are often the first to arrive at the scene of a derailment or to discover an unintended release in rail transportation.
    We respectfully submit that the safe transportation of hazardous materials by rail would be enhanced by providing these railroad employees with training addressing hazardous materials in rail transportation. Recognition, identification, and avoidance of hazardous materials in the workplace will be the result, and the only result, of this training. Quite simply, Mr. Chairman, all we are asking for is that certain crafts be trained to identify, recognize, and avoid hazardous materials. We will leave the actual hazmat response and the environmental remedial action to others.
    Frankly, Mr. Chairman, we are at a loss as to why the railroads seem to oppose DOT training for these employees. It can't be the cost. It is relatively inexpensive. It can't be the time. It is a matter of a few well-spent hours. And it can't be a detriment to safety. A trained employee is a safe employee. We simply don't understand the opposition to this very modest proposal which we view as a win-win for everyone.
    Rail labor has been doing its part. Eight rail unions, in cooperation with the AFL-CIO's George Meany Center for Labor Studies in Silver Spring, Maryland, have been conducting hazardous materials training for rail employees since 1991. This program has successfully trained approximately 6,000 rail workers in both DOT and OSHA requirements. For many of these rail employees, this is the only hazmat training they have received from any training source.
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    Rail labor has also developed a peer instructor training program involving the Transport Workers Union and the Brotherhood of Railway Carmen. And with your permission, Mr. Chairman, I would like to submit a copy of our student manual produced through the George Meany Center program. Approximately 60 union-trained peer instructors have delivered DOT-required hazmat training to an additional 6,000 TWU and TCU members at Conrail and Union Pacific Railroads over the past 3 years. These labor-management cooperative programs, the first two such cooperative hazmat efforts in the industry, have substantially enhanced the quality, availability, and cost-effectiveness of hazmat training which meets and exceeds DOT training requirements.
    Mr. Chairman, we remain ready, willing, and able to expand these partnerships and share our expertise and curriculum in other joint labor-management cooperative efforts with the rail industry. Funding for the peer instructor program is provided in part under Section 5107(e) of the Hazardous Materials Transportation Act. Our concern is the appropriation of funds under Section 5107(e).
    Rail labor would like to continue its highly successful training efforts and expand the peer instructor program to other railroads and to other crafts. However, without appropriations or other funding authorizations for Section 5107(e), funding for the peer instructor training program will be unavailable through DOT. This potential funding crisis comes at a time when rail labor is making meaningful progress in expanding the peer instructor program to other carriers. Therefore, we respectfully request the subcommittee to reauthorize funds for Section 5107(e) at or above the current $3 million per year.
    A third issue of importance to rail transportation safety is to ensure that each train dispatch center have an accurate train consist or manifest list for all trains carrying hazardous materials. The accuracy of this information at the dispatch center is imperative for initiating emergency response procedures. Therefore, we respectfully urge the subcommittee to ensure, through statutory enforcement requirements, the accuracy of train consist information provided to train crews and dispatching centers.
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    Finally, Mr. Chairman, the fourth issue of hazardous materials transportation safety relates to the Federal Railroad Administration. There were over 1.9 million carloads of hazardous materials transported by rail in 1996. This is approximately 30 percent more than was transported in 1990. There are also over 1,000 non-accident-related releases of hazardous materials in rail transportation each year. However, there has not been a corresponding increase in the number of FRA inspectors to oversee a railroad industry which has greatly increased traffic volume. Therefore, we respectfully request an increase in FRA funding to permit the agency to increase the number of FRA field inspectors and staff support personnel.
    In summary, Mr. Chairman, rail labor urges the subcommittee to: one, require DOT training for certain non-operating craft rail workers, including maintenance of way and signal employees; two, ensure, through statutory enforcement requirements, the accuracy of train consist information provided to train crews and dispatching centers; three, increase authorizations for Section 5107(e) training grants to train hazmat instructors; and, four, authorize additional funding for the Federal Railroad Administration in order for that agency to conduct increased compliance inspections, safety oversight reviews, and rulemaking initiatives.
    On behalf of the Rail Labor Division of the Transportation Trades Department, and in the interest of public and worker safety, I would like to thank you, Mr. Chairman and members of the subcommittee, for giving us the opportunity to appear here today.
    With your permission, Mr. Chairman, I would also like to submit for the record some additional documentation pertaining to rail labor's hazardous materials training program.
    Mr. FRANKS. Without objection, so ordered.

    Mr. INCLIMA. Thank you, Mr. Chairman. This concludes my statement, and I would be happy to answer any questions or provide further documentation to the subcommittee.
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    Mr. FRANKS. Mr. Wytkind, good morning. We are glad you could join us.
    Mr. WYTKIND. I am certainly happy to be here. I want to first thank you for the opportunity to appear. I guess I would say the Transportation Trades Department, AFL-CIO (TTD), and Bob Franks have a very strong relationship that goes back a number of years. We have worked with you on a lot of issues that affect safety and worker rights, and we look forward to working with you on hazardous materials safety issues in the same spirit that we have on other issues.
    Mr. Wise, of course, we have a long relationship with as well. His distinguished record on worker rights issues is unmatched, as are many other members of this subcommittee whom we have had the pleasure to work with.
    Thank you for inviting us. We, of course, as a department of the AFL-CIO not only represent our 30 unions here today, but we represent the interest of the 13-million-member AFL-CIO, which strongly endorses the views that we are presenting here today as they relate to the exposure that workers face in the workplace, and a very dangerous workplace should they come in contact with hazardous materials and toxic chemicals.
    I will summarize our concerns, and we will also be submitting a more comprehensive statement on many other issues that I won't touch on today.
    The first issue I would like to touch on is the DOT-DOL jurisdiction question that has been percolating now for a while. Let me just first state up front that we urge the subcommittee and the full committee to ensure that the Department of Labor's (DOL) Occupational Safety and Health Administration (OSHA) maintain its existing shared jurisdiction with the Department of Transportation (DOT) over hazmat employee protections. The DOL is the agency vested with the experience, the expertise, to make sure that workers in our economy work in a safe job site and enjoy the basic worker rights that the Government has long held should be applied to their workplace.
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    I am particularly dismayed that we are having to debate this issue again before the committee. I was given assurance by certain industry elements that we would not attempt to address this issue in the hazmat bill, but instead would try to do it outside of that process. But as evidenced today by what we will see later, which will essentially be a pile-on by the industry, that is not the case, and we are here to defend the interests and the rights of workers in the transportation industry.
    Under current law, the two agencies have shared responsibility. While the DOT issues regulations dealing with the actual transportation of hazardous materials, including container design, container placement on vehicles, labeling, placarding, and emergency response information, among other things, the DOL ensures that employees are adequately protected from the hazards they face on the job. Such standards would include personal protective equipment, monitoring, medical surveillance, evacuation, and hazard communication.
    But the industry groups will come before you to propose eliminating this shared jurisdiction and instead to allow DOT regulations to preempt OSHA standards. Why? Because they concluded that eliminating OSHA's role will save them compliance costs. This isn't rocket science. This is about money. This is about the economic costs that the industry thinks it faces when it adheres to Federal labor standards.
    We believe eliminating the role of OSHA has nothing to do with compliance costs. It has to do with saving lives, not only of workers but of the public that encounters hazardous materials transportation in what, as you know, Mr. Chairman, is a growing, in fact soaring volume of goods that are being transported via rail and truck and elsewhere in the system.
    Our position is that existing law should not be changed as we insisted during the last year's consideration of the ISTEA bill and the hazardous materials transportation bill, which, as you know, never went forward because of a lot of controversy not only on this issue but a lot of others. We believe the status quo isn't perfect, but we believe that the status quo as it relates to the shared jurisdiction is something that we should defend and keep intact because it would be, in our judgment, a horrible public policy decision to decide that the agency that is vested with the duty to oversee worker safety has no role in worker safety.
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    We also see no evidence to compel the subcommittee to move forward with any sort of change because no case has been made. The reality is that everyone knows that the DOT is the agency responsible for making sure our transportation system is safe, is economically viable, and is the best in the world. They are not vested exclusively with making sure that workers are protected by basic safeguards.
    On worker training, I won't restate what Mr. Inclima said, but will say that we have a long-held view that all workers who are in a hazardous workplace should be trained. It is a fairly simple message. But, clearly, as Mr. Inclima said, there is a gap in the training requirements that needs to be corrected.
    Before I get into that with a couple of comments, there are also some truck driver issues and firefighter issues, which you will hear about later in this hearing. I know that the International Brotherhood of Teamsters will be submitting their statement instead of appearing, but I want to just say on the record say that we strongly concur with the statements that they filed because they speak to a lot of very hard-core safety issues that affect their members, and hopefully their issues will be addressed by this subcommittee and the committee.
    We think the gap in training is a serious issue. The railroads have decided that the current definition somehow doesn't require them to train these workers. We believe that the type of work that these employees perform requires training. Instead of debating, you know, what the words mean and what the words say, these workers are encountering instances on the job where they are exposed to hazardous materials dangers. So let's train them. That is a real simple message. We don't need to have a debate about what the regulations say, what the statute says, because that is really what the industry would like you to do, is debate what these terms of art mean. They aren't terms of art. It is about workers. Are we going to train them or not? And if we are not going to train them, then you are going to have hazards on the railroads that aren't addressed because workers will be forced to deal with exposure to situations that they are not trained to deal with. And I am not going to get into detail. My colleague here can answer the questions that you want answered, both today and after this hearing. But it is important that you understand the significance of this issue.
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    I would underscore one other point on that issue, and that is, one-third, as we understand it, of Research and Special Programs Administration's (RSPA) enforcement tickets are issued because of non-compliance with training requirements. One-third of the tickets issued to the industry are because of non-compliance for training, which means that we are already having a problem getting workers trained, even under whatever the definition is that we and the industry agree with. So we now have a segment of rail workers that remain untrained, and they ought to be trained, and hopefully this committee will address that issue.
    Finally, I would just note that we want to make sure that no attempts are made to de-fund the federally supported worker training programs. They are highly acclaimed. Not only the rail union program that Mr. Inclima referred to, there is also the International Brotherhood of Teamsters that have trained almost 9,000 workers nationwide. The firefighters have a highly acclaimed program where 16,000 trainers have been trained since 1988. So I think we have a situation where, if you fund the program, these workers will be trained with the kind of adequate training and background that they deserve.
    With that, I would be happy to answer your questions. Again, I am happy to appear on behalf of our 30 unions, and I would be happy to answer any questions you have.
    Mr. FRANKS. Gentlemen, I thank you for your appearance this morning.
    Mr. Inclima, let me refer back to a comment made by Mr. Wytkind that he is expressing a disappointment that this matter is before this subcommittee at this moment as part of the reauthorization bill because his hope had been that between rail management and rail labor, this issue could have been fleshed out and perhaps an agreement could have been struck between the interested parties. Obviously, that has not happened.
    Could you tell me with some greater degree of specificity what has occurred, if anything, relative to getting these two parties at interest to sit down and talk about this issue of concern?
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    Mr. INCLIMA. Yes, thank you, Mr. Chairman. I think Mr. Wytkind's comments were towards the DOL and DOT jurisdictional issue, but I would be happy to answer your question, if you would like me to.
    Mr. FRANKS. Please do.
    Mr. INCLIMA. Your question went specifically to our overtures to the industry, and we have written to the industry, to every major Class 1 railroad in the country a few years back and asked them to join us in partnership and allow us to provide, with their oversight, an 8-hour or a day-long program on hazardous materials awareness, similar to the program that we have been conducting for our own members who, frankly, come to our program unpaid by the railroad. They come on their own without support of their carrier. And those overtures, Mr. Chairman, were rejected by every Class 1 in the country. They told us: Thank you for keeping us in mind, but we really don't need your help.
    I believe the reason for that answer is because we are not considered in their eyes, under the DOT regulations, hazmat employees because the same railroads have embraced this concept of joint cooperation with their carmen unions because the carmen are clearly covered under the definition.
    Mr. FRANKS. Mr. Wise?
    Mr. WISE. Mr. Inclima, are you suggesting that train crews and dispatching centers at times do not have accurate information as to which cars on a train contain hazardous materials?
    Mr. INCLIMA. Yes, Mr. Wise, that is exactly what I am suggesting. Just yesterday I spoke to a representative vice president of the train dispatchers union, and he confirmed for me that—he made some calls yesterday afternoon, and he came back and told me that there is a major problem with the dispatching centers having that information available to them. It is not readily available, and at times, what is available is not accurate.
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    Mr. WISE. If you will help a lay person, are you saying, then, that the dispatching center knows there is a train, knows the train and knows it carries hazardous materials, but cannot tell you whether it is car 13 or car 20?
    Mr. INCLIMA. Yes, that is the way I understand the problem.
    Mr. WISE. And would that not be critical to initiating hazardous emergency response, that information?
    Mr. INCLIMA. It is absolutely imperative, Mr. Wise. You know, generally in our railroad environment, the field personnel, whether it be the train crew, the maintenance of way guy, whoever might discover or be involved in an accident, our first line of communication is with that dispatch center, usually via radio. And it is usually the only way we have to communicate.
    If that dispatch center doesn't have the information it needs to convey the accident to emergency personnel, then there is a very significant communication problem.
    Mr. WISE. And often that dispatch center is hundreds of miles away, isn't it?
    Mr. INCLIMA. Correct. It could be many, many States away, yes.
    Mr. WISE. Mr. Wytkind, you have spoken about this. Perhaps I can get it summed up, I guess. Why is it that you believe OSHA does such a good job of protecting the safety of a hazardous materials employee?
    Mr. WYTKIND. Well, let me try to answer that briefly.
    The reality is that the Department of Labor (DOL) is vested with the responsibility to oversee safety in this country. The way the shared jurisdiction works is the DOL doesn't get involved in the transportation business of this country. That is the Department of Transportation's job. What it allows the DOL to do is deal with specific issues that are of particular importance to workers in the workplace, whether it be protective equipment, whatever the standard may be.
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    If they in the industry get what they want, you will virtually eliminate DOL's role in overseeing that area, with the exception, as they put it in all their testimony, of training. They are on message. Every testimony says virtually the same thing, and it is clear it is a very orchestrated effort. It has been going on for 2-plus years, and clearly, despite efforts on our part to deal with this issue, to refer back to what Mr. Franks said, when I made that comment, we were given assurances that we were going to deal with that issue outside of this committee and try to deal with it elsewhere.
    But on day one, the first hearing, the salvos are all out, and they are going after this jurisdictional issue. So it is clear that whatever good-faith effort we intended to show on this side has not been shown on the other side because there has been no dialogue except a single phone call. That is all we have had.
    Mr. FRANKS. Dr. Cooksey?
    Mr. COOKSEY. Let me try to get the overall picture. The debate here is about the transportation of hazardous materials across this Nation, by rail and by truck and presumably by ships, even, airplanes maybe. The issue is who has jurisdiction over training of the employees that might be involved in the transportation of these hazardous materials. Am I still on track there?
    Mr. WYTKIND. Well, that is one of the issues we brought before you, yes, but that is not the only issue. There are worker protection issues as well, beyond training.
    Mr. COOKSEY. OK. And you want OSHA to have jurisdiction over this. Is that correct?
    Mr. WYTKIND. We want OSHA to have shared authority, as they have for almost a decade, going back to 19——
    Mr. INCLIMA. I am not sure of the year, but it——
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    Mr. WYTKIND. 1990, I believe. It is a shared authority that has worked.
    Mr. COOKSEY. Shared.
    Mr. WYTKIND. Relatively well, shared authority between the two agencies.
    Mr. COOKSEY. With what other agency?
    Mr. WYTKIND. Between the DOL and the DOT.
    Mr. COOKSEY. OK. Why is it you do not think that DOL can handle this themselves without OSHA being involved?
    Mr. WYTKIND. Well, OSHA is an agency of the DOL. Excuse me, Mr. Cooksey. Do you mean DOT?
    Mr. COOKSEY. DOT, right.
    Mr. WYTKIND. If you would like, go ahead, Rick, but I would like to have Mr. Inclima deal with it as well because he has got a good perspective. But the Department of Labor offers an important expertise in overseeing worker safety. We want to make sure that their rightful place at the table in making sure workers are safe is adhered to without interfering with the DOT's mission of overseeing our Nation's transportation system.
    Mr. COOKSEY. Do you think that DOT actually lacks expertise in overseeing worker safety? Is there some reason to believe that?
    Mr. INCLIMA. Yes, sir. The DOT, basically their expertise is in transportation, the integrity of the container, if you want to boil it down. That is where their expertise is. That is what they know best.
    Once the cat gets out of the bag, once the spill occurs, the integrity of the container is breached, DOT has no regulation or expertise in actually how to protect those workers, how to initiate the emergency response, clean-up, protection of communities, et cetera. That is where OSHA's expertise lies. They have comprehensive standards dealing with personal protective equipment, you know, the whole gamut, hazardous communications, et cetera, et cetera. And this is a complementary jurisdiction. One complements the other. There is not an overlap and it is not a duplicity of regulation.
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    Mr. COOKSEY. It is my impression that OSHA has expanded into a lot of areas of oversight. Do you think that they have the adequate staff and adequate budget to do this oversight that they are doing?
    Mr. WYTKIND. Mr. Cooksey, it would depend what you are referring to when you say they have gotten——
    Mr. COOKSEY. Well, specifically—and I am a physician, and I was on this committee before you guys came into jurisdiction. And I will tell you this: There is a lot greater attendance now than before you were here, for better or for worse.
    [Laughter.]
    Mr. WYTKIND. I will take that as a compliment.
    Mr. COOKSEY. But I know that OSHA a few years ago decided they were going to move into the health care profession and do some oversight there, and there was a lot of confusion when they first came in about what they were going to do. And I know in my particular case, in my medical office, we started getting phone calls from former OSHA employees, and they said we will come in and for $2,000 we will inspect your medical office to see if you are in compliance with it. It kind of gave me a bad taste about having them coming and intrude into medicine, not that politicians and regulators and bureaucrats know more about health care than physicians do, but, anyway—and I hope that that same type of intrusion would not be going on here.
    You know, as a physician, we are involved with taking care of people's health care, and I am aware of the fact that people can get injured with some of these hazardous materials, and I really think—I support your position that we should look after employees, people that are involved in transporting these hazardous materials, and I think it should be an absolute top priority. The question is: Who does it? Who needs to do it? I just need to be convinced that OSHA can do a better job than——
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    Mr. WYTKIND. Well, I guess the way I would put it is the Department of Transportation runs a very large agency with a large jurisdiction to oversee our Nation's transportation system. The Department of Labor has expertise and has authority over virtually our entire economy. Do I believe they have enough resources? No. The labor movement is on record for a number of years now saying that the Labor Department's resources are not sufficient. We think they should be higher, and we also believe OSHA's resources should be higher. But that doesn't—that issue we would like to deal with and try to make the Appropriations Committee agree with us. We haven't quite gotten to that point, but hopefully we will.
    Meanwhile, understand that the role of OSHA and the DOL in this is a very small sliver of the overall DOT authority. This is simply having a regime in place that says let's complement the DOT's authority with certain vested expertise at the Labor Department. And we would be happy to share with you—and I don't have it chapter and verse—in detail what it is that they offer, and you will understand two things once we have this conversation: it is not a huge amount of authority that we are asking to retain; and, two, the cost of it—has it been absorbed by the Labor Department over the years? Again, that speaks to a resource issue, but that does not then conclude that you should simply hand the authority over to an agency that doesn't have the same expertise.
    Mr. COOKSEY. OK. In concluding, then, number one, it has been my impression that here in Washington there are a lot of people that are more interested in their own turf and their jurisdiction than they are taking care of the general public. We need to make sure the general public is not exposed to hazardous waste, particularly by untrained employees, and we need to make sure that these employees, our transportation workers, are properly trained. And I would certainly concur with that.
    But I hate to see us get into another turf battle or jurisdiction battle about a lot of these people that live within the Beltway who often have a jaundiced view of the system.
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    Mr. WYTKIND. Well, I understand the jurisdictional battle is being waged by one side of the debate. We are simply up here saying that the current system should be left alone. We are not asking for any change in the DOT-DOL area. All we are saying is don't go with the change that would eliminate the Labor Department. So I think you should talk to them about why they feel so strongly about it.
    Mr. COOKSEY. Thank you, Mr. Chairman. I think that line of questioning has distilled my thoughts, anyway.
    Mr. FRANKS. Thank you, Dr. Cooksey.
    Ms. Norton?
    Ms. NORTON. Thank you, Mr. Chairman. I would just like to first say for the record that if there is a jurisdictional battle, the source of it is not the parties but congressional legislation, which has conferred jurisdiction on both agencies and then left the industry and labor to kind of figure it out, even though it is clear the Congress intended, at least in my reading of the statute, for each agency to have jurisdiction.
    Now, I am also aware that polarization on this issue was, as much as anything else, the cause of the collapse of the negotiations which could have resulted in reauthorization last year. And I certainly hope that we are not in the midst of a redux of that. One would think that the agencies involved were trying to get out of that by moving toward some kind of compromise that would be acceptable all around, and I would like to ask, just to be sure, whether or not the current rulemaking to clarify jurisdictional authority of both agencies is satisfactory to you as a way of approaching this stalemate.
    Mr. WYTKIND. I would be happy to. We took the position in the last Congress—again, in an attempt to keep this issue out of the committee so that you can move forward with your legislation, we said that we were more than happy to see this issue dealt with outside of Congress and through the regulatory process. There were issues that needed to be addressed. We were on record. We said it more than once. We kept coming a little further toward the center, if you will, Ms. Norton, and the center never seemed to be enough for the other side.
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    So the answer is yes, we are more than willing and believe that that is the proper venue for this kind of discussion.
    Ms. NORTON. I would also note that in a complicated Government that agencies necessarily, and in the real world, will trespass on each other's jurisdiction, that it is not unusual at all for there to be joint jurisdiction, sometimes involving more than one agency, and I certainly would hope that the two agencies working together would help solve this problem for the Congress so that the Congress is not left with what might surely well be another stalemate to the risk and safety of employees.
    I would like to ask for some clarification on the hazmat employee issue. Apparently, it was 6,000—I think there was testimony that 6,000 employees are covered. Is that under the expanded definition that we heard in the last testimony or the prior definition?
    Mr. INCLIMA. Ms. Norton, there might be a little bit of confusion. What I discussed was that the rail workers hazmat program has trained approximately 12,000 workers in total. Half of those workers were trained in a cooperative effort with the Union Pacific and Conrail Railroads. The other 6,000 were primarily—probably about 40 percent of that 6,000 were BMWE, maintenance of way employees, who are not currently covered under the definition. Probably another 10 percent were signal employees. So 50 percent of the 6,000 people that we have trained independent of the railroads were not getting any training from any training source whatsoever.
    Ms. NORTON. Thank you. Thank you very much, and thank you, Mr. Chairman.
    Mr. FRANKS. Thank you, Ms. Norton.
    I am particularly delighted that we have been joined by the ranking member of the full Committee on Transportation and Infrastructure, the distinguished gentleman from Minnesota, Mr. Oberstar. Jim, welcome.
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    Mr. OBERSTAR. Thank you very much, Mr. Chairman. I appreciate your holding this hearing, and I salute your leadership on this committee. You have been one of the thoughtful and concerned and hard-working members on matters of public policy and transportation overall, and I am delighted you have taken the chairmanship of this subcommittee.
    I congratulate Ranking Member Wise for his long years of effort in this arena as well, particularly on issues that have landed not just on his public policy doorstep but on his physical doorstep in his own district and State due to crashes and incidents that involved hazardous materials.
    I have a statement which I would ask be included in the record at the appropriate time.
    Mr. FRANKS. Without objection, so ordered.
    Mr. OBERSTAR. One of the issues that recurs in matters of this kind—by ''this kind'' I mean the subject of this hearing—is training, education, and outreach to minimize the number of incidents and to assure effective enforcement and thorough emergency response planning and training. Time and again, I have throughout my years of service in the Congress had training and education downplayed, and pooh-poohed. But I know from personal experience having worked in the iron ore mines in northern Minnesota and at a ready-mix plant, a concrete block factory, and out in the dumps from the mines, how critical training is.
    A 70-year-old worker was just given a job one day to back up a 20-ton Euclid ore truck. Backing up a truck? You don't need training for that. Any damn fool can back up a truck. You just stand there and wave them on.
    Poor Natalia, an Italian immigrant, a dear friend of my father's, a dear friend of mine. He was 70 years old. He was backing up a truck, and I was standing about a hundred yards away. I could see that he had placed himself wrong. This truck backed right over him, and the driver didn't know it. It was as if he had rolled over a rock in the road, and Natalia's life was snuffed out just like that.
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    Years later, when it was my second term in the Congress, I crafted, along with the Steelworkers Union, the United Mine Workers Union, and others, legislation that merged the old Metal and Non-Metallic Mine Safety Act and the Coal Mine Safety Act together into what became the Mine Safety and Health Act, MSHA. I testified before the committee of jurisdiction, and this issue of training was just pooh-poohed by industry and by many of the members themselves. I told this story that I just related. A life is at stake. Training is critical. Outreach is important. Emergency response planning is vitally important.
    Lives are lost because people don't know to stand well away from a spinning wheel when they have loose-fitting garments. I have seen it happen, something is caught up and the body is pulled into a conveyor belt and an arm lost.
    Working men and women have only their backs and arms and legs as their tools of the trade. Those tools can be destroyed, maimed, or pulverized if they dodn't get proper training. That is society's fault. I think that is a vitally critical issue.
    In emergency response, we ought to have in the hands of law enforcement agencies and emergency response entities, like fire departments, computerized data on hazardous materials on trains and trucks so that when the fire department goes out to respond, they know what they are facing. We have demonstrated this can be done with a pilot project in Duluth, Minnesota, with the fire department. I must commend Burlington Northern for its active participation. In providing freight information on a confidential basis so it wouldn't be leaked to the public, Burlington Northern enabled the fire department to know what the critical material is, what kind of response is appropriate, whether there should be an evacuation, and what the health consequences are of benzene being spilled, as it was between Duluth and Superior when 35,000 people had to be evacuated.
    That wasn't a question but it was a statement, and I would like your response, Mr. Wytkind and Mr. Inclima.
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    Mr. WYTKIND. Well, Mr. Oberstar, as always, we have worked with you on these issues for a long time, and this really is about worker safety. Yes, I spent a lot of time inside the Beltway, and as Mr. Cooksey said, we should stop having debate in the Beltway and look at the real issue. The real issue really is: Are we or are we not going to train these workers? Are we going to blind ourselves into believing that certain workers, because someone in a law department declared them uncovered by some language in the law or regulation, that we are not going to train them? Forget about whether they are exposed. Forget about whether they might be exposed. And ignore the fact that the debate has forgotten that this doesn't even cost that much money. This has become a debate about a debate. It has nothing to do with the facts.
    As Mr. Inclima has said in his testimony—he is much more of an expert on this than me—they are not being trained. And I remember—and I just mentioned it anecdotally—when we went to the railroads a number of years ago and asked something fairly simple which has been done throughout the economy, which is let those workers mark off duty with pay, let them have good training. Their answer was no, and then they come and testify before this committee and say they want to de-fund those programs. Then they put out a letter that says that we think training of maintenance of way employees is a deterrent to safety. That is their answer to it.
    So, I mean, that is really what we are dealing with here, and I am attempting to have a discussion with the other side on these issues, but can't have one because it always seems to fall in the lap of Mr. Shuster, Mr. Oberstar, and whatever subcommittee has jurisdiction on the particular issue. And that is again where we find ourselves instead of trying to find a resolution that works.
    Mr. OBERSTAR. Well, if we are arguing about definitions and who is covered and who is not by reason of a legal definition, I think that is wrong. We have just got to understand real life on the firing line.
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    That firing line includes a rainy night on the ore dumps in northern Minnesota. I had to carry an 80-pound track jack out to the end of the track where the ore cars were dumping waste rock over the end. The track slipped and fell down and lives were at stake, so we had to go and jack the track up. I had no training in jacking a track. I had no idea how to operate this monstrous piece of equipment. I lugged it out there in the pouring rain, an 80-pound track jack. It was as if I was being punished for something. And a rock slipped and the track slipped. If I had had a couple of hours of training on how to do this properly, I could have done it in 5 minutes instead of an hour.
    I have no patience with people who nitpick about things like this. So employers ought to realize that proper training gives you a well-informed, more alert, more willing worker who can perform the job with greater ease and effectiveness, saving costs and avoiding accident and injury. And I will not have any patience with arguments about legal definitions. If we have to fix the law, then, by damn, let's fix the law.
    Thank you, Mr. Chairman.
    Mr. FRANKS. Thank you, Mr. Oberstar.
    There is a vote on the floor of the House at this moment. We will reconvene immediately after this vote, and I look forward to hearing from the next panel.
    Thank you.
    [Recess.]
    Mr. FRANKS. OK, folks. Could everybody find their seat, please?
    Our next panel of witnesses is composed of Mr. Randy Speight, manager of distribution for the Chemical Manufacturers Association; Mr. Clinton Crane, president of Reel-Strong Fuels, Inc., on behalf of the Petroleum Marketers Association of America; Ms. Cynthia Hilton, Executive Director of the Association of Waste Hazardous Materials Transporters; and Mr. Charles Dettmann, Executive Vice President, the Association of American Railroads.
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    Good morning, ladies and gentlemen. We apologize for that brief hiatus, but we got back as quickly as we could. We look forward to your testimony.
    Mr. Speight, would you lead off?
TESTIMONY OF RANDY SPEIGHT, MANAGING DIRECTOR, DISTRIBUTION, CHEMICAL MANUFACTURERS ASSOCIATION; CLINTON CRANE, PRESIDENT, REEL-STRONG FUEL CO., ON BEHALF OF THE PETROLEUM MARKETERS ASSOCIATION OF AMERICA; CYNTHIA HILTON, EXECUTIVE DIRECTOR, ASSOCIATION OF WASTE HAZARDOUS MATERIALS TRANSPORTERS, ALSO ON BEHALF OF THE AMERICAN TRUCKING ASSOCIATIONS AND THE NATIONAL TANK TRUCK CARRIERS, INC.; AND CHARLES E. DETTMANN, EXECUTIVE VICE PRESIDENT, ASSOCIATION OF AMERICAN RAILROADS

    Mr. SPEIGHT. Good morning, Mr. Chairman and Congressman Wise. Thank you for allowing me to speak to you today. My name is Randy Speight, and I am director of distribution programs for the Chemical Manufacturers Association.
    CMA members have a significant interest in reauthorization of HMTA. CMA is also an active participant in the Interested Parties for HMTA Reauthorization. The Interested Parties is a broad coalition of the hazardous materials transportation industry in the United States. With me are three other representatives of the coalition: Clinton Crane, Cynthia Hilton, and Chuck Dettmann. I will discuss DOT's jurisdiction and preemption authority, and my colleagues will discuss motor carrier permitting issues, user fees, and rail-specific issues. There are other important issues on which we have provided views in our written statement.
    We recognize that a lot of work was done in the 105th Congress to accomplish HMTA reauthorization, and we urge the subcommittee to build on those efforts. Confusion over agency jurisdiction is a problem. Without clarity of jurisdiction, we risk confounding shippers and carriers who attempt to comply with multiple or potentially conflicting requirements. It is therefore necessary to clarify the scope of DOT's authority.
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    To accomplish this, we propose amendments beginning with Section 5101 of HMTA. In 1990, Congress stated its intent for DOT to take the lead in assuring that adequate regulations are in place to protect public safety during hazmat transportation, including loading, unloading, and storage. This intent is evident in eight findings by Congress as a part of HMTUSA, which were omitted from the 1994 amendments.
    We seek the inclusion of these findings 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.
    We also propose the addition of two purposes to the statute. First, we suggest a statement clarifying 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 propose that an explicit statement be included that provides the Secretary of Transportation with the preemption authority necessary to ensure national uniformity. We believe these amendments make clear DOT's jurisdiction.
    Section 5103 of the act sets forth the general regulatory authority pertaining to hazmat transportation. We proposed that the phrase ''efficient transportation'' be included in Section 5103 to ensure consistency with the purposes of the law.
    Section 5107 of the act pertains to hazmat employee training requirements and grants. During the last Congress, the Senate passed a provision correcting a clerical error in 5107 which inadvertently extended the authority of OSHA to regulatory areas affecting hazmat transportation that were not contemplated by Congress when this provision was enacted in 1990. The Senate proposed to correct the error by striking the references to Sections 5106, 5108, and 5109. The Senate provision as it related to Section 5106 became a focal point for debate about the appropriate jurisdiction of DOT in OSHA.
    In an effort to move the legislation along, we have accepted the offer of DOT to work with DOT, OSHA, and Labor in a public forum—likely the public rulemaking process—to see if we can find common ground to resolve our differences. However, we ask the subcommittee to correct the error as it pertains to Section 5108 and 5109.
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    Section 5125 provides DOT with authority to preempt State, local, or Indian tribe requirements. Congress codified this preemptive authority in 1990 specifically because variance from the Federal Regulations create the potential for unreasonable hazards in other jurisdictions and confound shippers and carriers that attempt to comply with the multiple and conflicting requirements.
    Unfortunately, in 1996, the U.S. Court of Appeals for the District of Columbia Circuit concluded that one preemption provision, commonly referred to as ''the obstacle test,'' was only relevant to preempt State rules that otherwise pose an obstacle to fulfilling explicit provisions, not general policies of HMTA.
    We propose an amendment to Section 5125(a)(2) to make clear that the obstacle test is applicable when a non-Federal regulation provides an obstacles to the purposes of the act, regardless of whether or not the non-Federal regulation is an obstacle to explicit DOT regulation. This amendment is meant to legislatively reverse the D.C. Circuit's 1996 decision, thus preserving the preemptive authority of DOT as Congress intended it.
    We also seek amendments to Section 5125 to clarify that DOT has the authority to issue administrative preemption decisions on State and local fees and permits.
    In conclusion, we believe the proposed amendments will clarify DOT's jurisdiction and preemption authorities.
    Thank you for the opportunity to share this view.
    Mr. FRANKS. Thank you very much.
    Welcome, Mr. Crane. Thank you for joining us at today's hearing.
    Mr. CRANE. Thank you. Good morning, Chairman Franks and members of the committee.
    By way of background, my name is Clinton Crane. I am president of the Reel-Strong Fuel Company in Cranford, New Jersey, which is Union County. We are a small, family-owned business. We have 12 employees. We have been in business since 1925. We presently operate three or four tank trucks in the delivery of heating oil. This winter we may only need two delivery trucks. I can't predict the weather, but you all see how it is outside. Traditionally, we do deliver approximately 2 million gallons of retail fuel oil per year to our customers.
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    I am here today representing the Petroleum Marketers Association of America. PMAA, as I am sure you are aware, is a federation of 44 State and regional trade associations representing nearly 8,000 independent petroleum marketers, 300 of which are from my own State of New Jersey. These marketers are engaged in the distribution of not only heating oil, such as I am, but gasoline and diesel fuel. Because the transportation of hazardous materials is such an integral part of the petroleum marketing business, marketers such as myself take the safe transportation and handling of these products very seriously. As such, I feel strongly about quality safety programs being successfully offered and implemented by your committee, RSPA. Yet at the same time, I believe that user fees have no place in a program that so broadly affects the general health and safety of all citizens.
    As part of the President's budget, the administration has proposed that the Department of Transportation fund its hazardous materials transportation program through these user fees paid by the transporters of hazardous materials. I am opposed to this type of funding for several reasons. The administration's proposal is really contrary to the public interest. It is going to be a nightmare to administer, and I am not sure it is feasible at all. And I personally believe that this really constitutes—it is a new tax. It is disguised as a fee, but I believe it is a tax. I believe this program must be funded through general revenues.
    As Chairman Franks pointed out, and certainly echoed by Congressman Pascrell, public safety is the overriding goal of the hazardous materials program. This program exists to protect the public from the risks to their lives, their property, or environment inherent in the transportation of hazardous materials. To carry out this important mission, the Department of Transportation develops safety regulations, conducts research and compliance inspections, provides training, educational services, which we have heard about before, emergency response support, and provides emergency preparedness grants to the States.
    My fear is that user fees may deter companies from using these beneficial compliance services. These new taxes or fees, however you would like to refer to them, are likely to unfairly burden smaller businesses that do not have hazardous materials transportation expertise in-house by making the system just too expensive to use. Smaller companies such as my business—as I say, we only have 12 employees—are the ones that would benefit most from these outreach and compliance programs that are now being offered.
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    The administration's user fee initiative is, by our calculation, supposed to be designed to generate $19 million annually. Yet the administrative burden placed on your committee, RSPA, in order to bill, collect, and track payments would be enormous. This activity would detract significantly from the much more important responsibilities of this agency, namely, the safe transportation of hazardous materials. Additionally, we feel DOT's ability to provide adequate enforcement will certainly suffer if revenue targets are not met. This is one of the concerns I think of Ms. Norton on user fees.
    The hazardous materials program is, above all, as we have referred to it, a safety not an economic program. The welfare of the public cannot and must not be put at risk because DOT has the burden of meeting its hazardous materials enforcement budget.
    The hazardous materials program must be funded through general revenues. A careful examination of the hazardous materials program reveals the near impossibility of designing a feasible way of administering such a fee system as the administration requests. RSPA's jurisdiction over our industry—it is a huge industry—covers several thousand businesses and employees, over a million Americans. These businesses are carriers, shippers, packaging manufacturers, and reconditioners—you have heard from some of them today—handling all different types of hazardous materials in various modes of transportation. Such a vast array of regulated entities makes designing an equitable and manageable fee program, I would say, nearly impossible. In addition, fees are not likely to be collected from the Nation's largest shipper of hazmat materials, which is our own U.S. Government. Consequently, the cost of regulating these programs will then be unfairly shifted back to the private sector.
    The hazardous materials program is broad-based and affects numerous industries, as well as the general public and a wide range of Government agencies. Thus, the hazardous materials program cannot be compared to a program such as the Highway Trust Fund where those who pay receive directly the benefits of expenditures on such items as highway construction and maintenance. Indeed, other Government programs which do benefit the public, such as the Consumer Product Safety Program, are funded from general revenues, and I feel that this is how the hazardous materials program, general revenues.
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    I thank you. I know you have a long meeting and a long panel, and we will answer questions later or now, whatever your pleasure. Thank you very much.
    Mr. FRANKS. Thank you.
    Ms. Hilton.
    Ms. HILTON. Thank you. Mr. Chairman and members of the subcommittee, my name is Cynthia Hilton. I am testifying on behalf of the American Trucking Association, the Association of Waste Hazardous Materials Transporters, and the National Tank Truck Carriers, and my task today is to address issues related to motor carrier permitting and the hazmat grants program.
    In 1990, DOT was delegated responsibility for the implementation of three sections of the HMTA relating to motor carrier permitting. None of these delegations have been accomplished. The delegation at Section 5119 represents a compromise to address the compliance burden created by proliferating State hazmat registration and permitting requirements and at the same time preserve authority for States to act in this area. The so-called 'Uniform Program' is the State-developed, uniform, reciprocal permitting program contemplated by Congress to replace these forms and procedures with this.
    This program is currently governed by six participating States. However, the law requires DOT to issue a Federal rule to implement the program nationwide. Since DOT has not acted within the allowable deadlines provided in the 1990 act, the motor carrier industry remains subject today to these additional 64 permit programs imposed by 37 States.
    We are mystified why DOT has not embraced this program, with one notable exception. The conditions the carrier must meet to receive credentials are based on Federal requirements. Additionally, DOT's failure to implement the program has resulted in an unnecessary expenditure of time, energy, and other resources by DOT and concerned parties. Carriers faced with diverse permitting requirements that compromise safety and frustrate the efficient transportation of hazardous materials are left to remedy this situation by filing for preemption to DOT or the courts. Of the 23 petitions for preemption filed with DOT since 1990, 13 stem from non-Federal requirements and associated fees. In one case, the court cited DOT's failure to proceed with the Uniform Program rulemaking as a reason to overturn, for the very first time, DOT's preemption of a State permitting requirement. Had the Uniform Program been in place, none of these proceedings would have been necessary.
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    This haphazard approach to addressing the question of State and local permitting programs has exacerbated the very patchwork of non-Federal regulations that the HMTA and Section 5119 specifically were enacted to address. To the chagrin of many, DOT proposed during the last Congress to further delay action on its three congressional registration/permitting directives by requesting authority for yet another study. We contend that these matters have been studied enough, and we urge you to reject such a study and to reaffirm that it is appropriate and necessary to replace the myriad of State registration and permitting programs with a national uniform system. Most importantly, we recommend that DOT be required to finalize the rule to implement this program nationwide based on the program as it is currently being administered and interpreted by the States already in the compact.
    Another significant agreement reached with the States during the 1990 reauthorization was the commitment of industry to support, through fees, grants to States for emergency response planning and training. Concern about the administration of these grants prompts us to bring three issues to your attention.
    First, the public need to train and plan for hazmat emergencies still exists. Yet DOT has proposed to allow 25 percent of grant funds for small business compliance training. We oppose efforts to divert grant funds for purposes not originally intended by Congress.
    Second, Congress directed DOT to award training grants to States on the basis of need. Among the criteria to determine need, Congress mandated that DOT consider whether the grant applicant imposes fees on the transportation of hazardous materials and how those fees are used. DOT has not applied these requirements because the Department claims not to understand whether Congress intended that these criteria be used to increase or decrease grants. Industry pushed hard to have these criteria with the expectation that DOT would reduce grants to States that imposed fees because most States were already collecting millions of dollars directly from industry. Only Congress can bring closure to this matter. We recommend that the law be clarified to provide that DOT may discount the amount of a grant based on a State's imposition of hazmat transportation-related fees.
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    Third, the States annually collect approximately $20 million in fees directly from the hazmat industry. In 1994, Congress amended the HMTA to preclude States from imposing fees on the transportation of hazardous materials unless the fees were fair and used for a purpose related to hazardous materials transportation. We believe that States should certify that they are in compliance with these Federal requirements to qualify for a grant. They should not be rewarded with HMTA-authorized grants that are funded by industry fees if they are violating the HMTA's provisions that set limitations on State fees.
    Thank you for your consideration of these critical issues, and I would be happy to answer any questions.
    Mr. Dettmann?
    Mr. DETTMANN. Thank you, Mr. Chairman, Congressman Wise, members of the subcommittee. My name is Chuck Dettmann, and I am executive vice president of the Association of American Railroads. On behalf of its member railroads, AAR thanks you for the opportunity to testify on reauthorization of the Nation's hazardous material transportation program.
    With your permission, I will summarize my prepared statement and ask that the full statement be made part of the record.
    There is no better illustration of the railroad's total commitment to safe transportation than the industry's exemplary safety record. This decade has seen a 25 percent decrease in the train accident rate, and a 56 percent decrease in the employee casualty rate. In addition, 99.93 percent of all hazardous material shipments on rail are handled incident free. This safety record is a result of the railroads investing approximately $120 billion in their infrastructure since 1990, safer operating procedures and freight car design improvements.
    Today, I would like to highlight a few of our industry's safety initiatives. Railroads, tank car builders and chemical shippers are devoting particular attention to ensuring the integrity of tank cars. Initiatives include the development of new steels for tanks and a new inspection program for stub sill tank cars, which account for over 90 percent of the tank car fleet.
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    The railroads, the Chemical Manufacturers Association, and chemical shippers jointly support TRANSCAER, a national community outreach program in which industry endeavors to enhance community emergency planning and response capabilities.
    Also, our railroads strongly support Operation Respond, a nonprofit institute devoted to improving the communication of emergency response information to police and fire departments. As a matter of fact, all of the information that is displayed to the fire and police departments comes out of the railroads' own computers, including information on the car and what to do with the hazardous materials. We are furnishing computers to many, many locations in the country to allow that to happen. We are strong supporters of Operation Respond.
    In addition to devoting resources to reducing even further the extremely low rate of accidents in which hazardous materials are released, the railroads are making significant strides in reducing numbers of nonaccident releases. Nonaccident releases are generally attributable to leaks, splashes, and venting, and virtually all involve a small quantity.
    Railroads, chemical companies, tank car builders and government agencies joined together in 1995 to form the North American Nonaccident Release Program. The program gives special high-level attention to reducing releases at those railroad and shipper facilities that account for a disproportionate number of the hazardous material releases occurring in rail transportation. The success of our joint efforts to reduce the rate of unintentional, nonaccident releases is reflected in the 34 percent decrease in the number of incidents in the last two years.
    Turning to issues before this committee, AAR urges Congress to amend 49 USC section 5107 to make it clear that DOT regulations take precedence in areas addressed by both DOT and OSHA regulations, except in the area of training.
    When Congress adopted requirements for hazardous material training in 1990, it intended to provide for overlapping jurisdiction only with respect to training requirements. Unfortunately, due to a drafting error, if literally interpreted section 5107 provides that DOT and OSHA regulations exist side-by-side in all areas. Safety is not served by imposing on industry potentially conflicting Federal agency requirements.
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    Finally, in the last Congress, labor asked that the regulatory definition of hazmat employee be statutorily expanded to encompass nonoperating railroad employees. An expanded definition would send the wrong signal as to the proper response by nonoperating employees should a hazardous material emergency occur. AAR's freight railroad members give all nonoperating employees hazardous material awareness training. That is mandated by the FRA in its Safety Enforcement Bulletin of April of 1994.
    These employees are trained on who to contact should a hazardous material emergency occur, what to do next, and how to recognize it. What they are supposed to do is to move to a safe place and let the professional hazardous material emergency responders take appropriate action. Emergency response should be left to those specialized employees and contractors who are trained and equipped for this highly technical and dangerous work. The railroads do not permit nonoperating union employees to take remedial action in the event of hazardous material emergencies. Congress should not take any steps that are inconsistent with that successful policy.
    Mr. Chairman, thank you for the opportunity to testify. I would be pleased to answer any questions.
    Mr. FRANKS. Mr. Dettmann, thank you. I would like to first begin by turning our attention to an issue that was discussed during the course of the last panel because I want to clear up any confusion or questions that may continue to linger, in light of some of the exchanges.
    There is an overall issue of overlapping jurisdiction between DOT and OSHA on a host of areas. But there was some focus turned during the course of the last panel on the issue of training, and I need to ask all of you a simple yes or no.
    Do you folks support removing either party in the currently mutual jurisdiction for the purpose of training?
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    Mr. Dettmann, I'll start with you.
    Mr. DETTMANN. No.
    Ms. HILTON. No.
    Mr. CRANE. I would say not at this time, unless there was more clarification. No.
    Mr. SPEIGHT. No, Mr. Chairman.
    Mr. FRANKS. Specifically, Mr. Speight, let me start with you, the area that you would want this committee to turn its attention to concerning overlapping concurrent jurisdiction is what?
    Mr. SPEIGHT. Mr. Chairman, the major concern we have, and I will speak now on behalf of the chemical industry——
    Mr. FRANKS. I just need you to be brief, Mr. Speight, because I don't have much time here.
    [Laughter.]
    Mr. SPEIGHT. I understand, Mr. Chairman, and I will keep it brief.
    National uniformity of hazmat regulations, that's our key issue. And in order to do that, DOT needs the jurisdiction and DOT needs preemption authority.
    Mr. FRANKS. Ms. Hilton?
    Ms. HILTON. If I could just add to that. What we call a drafting error at 5107 included reference to three sections of the law; 5106, 5108, and 5109. What we are asking for at this time is that 5108, which has to do with hazmat registration and 5109, motor carrier permits, be stricken from 5107.
    We do not understand, and it has never been explained as to why OSHA would have jurisdictional interest in those areas. In fact, in the last Congress, when we were trying to negotiate this whole issue with labor representatives, they were willing to immediately remove the 5107 references to 5108 and 5109 in the offers that we saw.
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    So that is all that we are seeking right at this moment to correct.
    Mr. FRANKS. Mr. Dettmann, do you want to comment briefly, please?
    Mr. DETTMANN. One brief comment. An example, OSHA standards for tank car tanks are ASME standards. Whereas, DOT uses Tank Car Committee standards. Two different operations, two different vessels and two different type of environments. And what we are looking for is uniformity in transportation for safety.
    Mr. FRANKS. Thank you.
    Mr. Crane, you suggest that the imposition of a more extensive user fee Federal program would diminish the amount of interaction between the industry and DOT. Could you give us some examples of what types of interactions occur currently and how they would be curtailed?
    Mr. CRANE. I believe, Mr. Chairman, my whole concern with user fees is I think they are going to discourage this interaction that we have had. We have had a good relationship with DOT through our association with PMAA and our own Fuel Merchants Association. We have had no problems with that sense of the interaction. They have provided training, they have provided the compliance, there is videotapes, there is training, any number of things that we can get, that I can get right now.
    Mr. FRANKS. Why would those be eliminated if there was an imposed user fee?
    Mr. DETTMANN. I am not sure they would be eliminated, but if you are going to put a user fee on every contact, well, am I going to be charged a fee to go to the DOT? to go to your committee? We think for an issue this broad, it just cannot be done with user fees.
    Mr. FRANKS. Mr. Wise?
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    Mr. WISE. Thank you, Mr. Chairman.
    A question for the panel. Over the last several years, industry has pushed for national standards and Federal preemption of State and local laws with respect to hazardous material safety. Now it appears that some regions and some industries are requesting exemptions from the uniform standards.
    Does the industry believe that statutory exemptions undermine the goal of uniformity?
    Ms. HILTON. You mean in the section of the law that provides for exemptions?
    Mr. WISE. Yes.
    Ms. HILTON. No. They originally were called special permits, if I remember my history correctly, and the name got changed to exemption. The term 'exemption' carries a connotation that it means a lesser level of safety. DOT provides exemptions only when the applicant demonstrates an equivalent or higher level of safety. In recognition of this fact one of DOT's recommendations contained in last year's Senate bill was to change the name back to 'special permits.'The purpose of exemptions is to recognize new technology or new ideas about how to move things. These innovations assist DOT in introducing new things into the regulatory process.
    Mr. WISE. Maybe I am misled because you are talking, at this point, about administrative exemptions, which actually gets me to my next question. Do you feel that that process generally works well?
    Ms. HILTON. I am going to let Randy answer this.
    Mr. SPEIGHT. Congressman Wise, yes, generally we do feel it works well, and we think it is a necessary component of DOT regulation.
    Mr. WISE. Let us go back to statutory exemptions, whether you are talking about the ag exemption sought for or whatever. How do people feel? And I am not asking you to take a position on that particular one, but I am just do we want Federal preemption or don't we?
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    Ms. HILTON. Let me say as one of the co-facilitators for the Interested Parties for HMTA Reauthorization on whose behalf we are speaking, that we have not taken a position on the ag issue as a group.
    With regard to federal preemption I think you have heard from the people here that uniformity is critical to what we do, and you get that by preemption. DOT is unique in that the HMTA clearly provides for this. This committee, with jurisdiction over transportation, understands the necessity of national standards so that commerce is not impeded more than any other.
    Mr. WISE. Well, we are learning to understand it. Put it that way.
    [Laughter.]
    Ms. HILTON. You are learning to understand it.
    Mr. WISE. This committee is on an learning curve.
    Ms. HILTON.Speaking just for my industry, I would say we would rather take a higher standard to have uniformity than risk the possibility of being legal in one jurisdiction and because you cross an arbitrary political boundary, all of a sudden you are in a noncompliant situation.
    I will tell you, going back to the hazmat motor carrier situation, I addressed earlier this is a compliance nightmare. These permits come due at different times of the year, some are tied to vehicles, others to companies; some to VIN numbers, some to license plates; some to whatever. As hard as you might try to comply with this, you are going to fail at some point. The issue is not whether or not we are willing to comply with standards to meet some level of safety, environmental protection or whatever. The issue is how can we do that in a way that we all understand so that compliance is enhanced and enforcement does not vary jurisdiction to jurisdiction.
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    Mr. WISE. Let me turn to Mr. Dettmann. RSPA has testified that the BMWE and the BRS are ''hazmat employees.'' Do the railroads presently provide hazmat training for these employees?
    Mr. DETTMANN. Yes, we do, Congressman Wise. All nonoperating employees get hazardous material awareness training. That is different from your train and engine employees, who are your hazmat employees that get more in-depth training. But all of our nonoperating employees get hazardous material awareness training, such as: ''Here is how to recognize when a hazardous material situation is, here is whom you notify, and here is what to do, which is basically get to a safe place and notify authorities.''
    Mr. WISE. Regulations require employers, presently, to keep records on employee training and to make the records available to DOT. My question is do the members of AAR keep these records for the nonoperating employees?
    Mr. DETTMANN. We keep records for all employees that we train, the training records. Now, I don't know. I will respond to that on the nonoperating employees' hazardous material training. I would respond to you. I don't have that information currently.
    Mr. WISE. Actually, if I could just take this time, Mr. Chairman, to make a unanimous consent request that all members have five days to submit questions to the witnesses, and I would just make a statement that our staffs might work together to eliminate duplication of questions.
    Mr. FRANKS. Without objection, it is ordered.
    Mr. WISE. Thanks.
    Mr. Dettmann, I am trying to frame this. I think I am getting this issue. But as I understand it, the railroad's position is that, in regard to the OSHA DOT dispute, that you don't mind OSHA participating in the training, but in terms of on-site, you don't want OSHA in there. Is that the issue?
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    Mr. DETTMANN. On training, both of them, DOT and OSHA, is fine.
    On the other issues, we feel jurisdiction belongs with DOT, where there is preemption. Just like in this area, the FRA has issued its regs on what is to be in the HM training. We feel there needs to be uniformity, and jurisdiction needs to be with DOT, and right now there is a conflict between OSHA and DOT as to who has authority.
    Mr. WISE. Let me ask you, your testimony illustrates the gains that have been made in safety in the past number of years and some impressive gains. So I guess I am trying to figure out where the problem is. It seems like things are working right. Why now, after we have been in this process I think for eight years, or 1990, why seek a change at this point, if it is quite clear, according to your testimony, safety is improving, incidents are declining?
    Mr. DETTMANN. Congressman, we have a very impressive safety record. We want to continue on that. One of the issues that is coming before us is the conflict between OSHA regs and DOT regs. As we begin to move and try to further improve safety with the low-hanging fruits gone, now we are having to reach up in the top of the tree and get the tough ones, and we want to make sure that we have consistent hazardous material regulations so we can keep the safety record improving.
    Mr. WISE. I have got a feeling it is going to take a giraffe to get at this fruit.
    [Laughter.]
    Mr. WISE. Mr. Dettmann, thank you.
    Mr. FRANKS. Ladies and gentlemen, thank you very much for your participation today.
    On our next panel, we will be hearing from Chief Jim Fife, the chairman of the West Virginia State Fire Commission; Mr. Chuck Blake, director of Emergency Services and director of 911, Mason County, West Virginia; Mr. Frederick Nesbitt, director of Governmental Affairs for the International Association of Fire Fighters; and Mr. Dale Everitt, vice president of the Operation Respond Institute, Incorporated.
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    I welcome them all to today's hearing.
    Gentlemen, welcome. We are delighted to have you participating in today's hearing.
    Chief Fife, would you like to begin with your testimony?
TESTIMONY OF JIM FIFE, CHAIRMAN OF THE WEST VIRGINIA STATE FIRE COMMISSION; CHUCK BLAKE, DIRECTOR OF EMERGENCY SERVICES, MASON COUNTY, WEST VIRGINIA; FREDERICK H. NESBITT, DIRECTOR OF GOVERNMENTAL AFFAIRS, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS; AND R. DALE EVERITT, VICE PRESIDENT, OPERATION RESPOND INSTITUTE, INC.

    Mr. FIFE. All right, sir. My name is James Fife. I am from White Sulphur Springs, West Virginia. I have served in the fire and EMS services for over 39 years. I have served as chief of White Sulphur Springs, our volunteer fire department for over 25 years. I have been secretary-treasurer of the State Fire Chiefs Association for over 15 years.
    I was very instrumental in helping to get the West Virginia State Fire Commission started. I have been a member of that Fire Commission since 1976 and now serve as Chairman of the Fire Commission.
    I am here representing the West Virginia State Fire Commission. We appreciate the opportunity to address the subcommittee. We feel consideration of Federal hazardous material regulations are among the most important Federal safety standards that assist fire fighters and emergency service personnel to do their dangerous job more safely.
    When a hazardous material and dangerous products move on our highways, they must be placarded, with no exceptions. When many of these shipments overturn or catch on fire, the first responders, fire fighters, must know the hazardous nature of the product in order to take appropriate action.
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    Accidents involving the release of hazardous materials are a serious threat to public health and safety. Because of the potential risk to life, property and the environment posed by the unintentional release of hazardous materials, consistency in the laws and regulations governing the transportation of hazardous materials is necessary. In order to achieve greater uniformity and to promote public health, welfare and safety at all levels, Federal standards regarding the transportation of hazardous material and interstate or intrastate and foreign commerce is very necessary.
    Mr. FRANKS. Thank you, Chief, very much.
    Mr. Blake?
    Mr. BLAKE. Thank you, Chairman Franks, and distinguished committee members. I am here today to testify on behalf of all of the local front-line responders across the United States who face daily the responsibility of responding to the hazardous material incidents. And I might add that I wish that some of the first responders and the citizens of the United States would be here and here some of the jargon and verbiage that I have heard this morning. It is quite interesting, and sometimes it is quite difficult to explain to them why things happen to them and why they must suffer. So I think that they would enjoy some of this today, as I have.
    My name is Chuck Blake, director of——
    Mr. FRANKS. Mr. Blake, just out of curiosity, would their suffering increase or decrease?
    [Laughter.]
    Mr. BLAKE. Probably their suffering would probably increase.
    [Laughter.]
    Mr. BLAKE. My name is Chuck Blake, director of the Mason County Office of Emergency Services. We are located in the Ohio Valley region of West Virginia.
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    My office is responsible for the management response, mitigation and recovery of all natural and manmade incidences that impact the citizens of our county. We have a staff of two full-time employees, myself and my deputy director, who oversees six volunteer fire companies, as well as five emergency medical services, four of which are volunteer and one paid service. Also, we oversee the Communication Division, made up of two full-time staffed, 24-hour positions.
    The Office of Emergency Services of Mason County serves an area of 440 square miles that host two Federal two-lane highways, the Ohio and the Kanawha River. In addition to accommodating high way and river transportation, Mason County is also home to the CSX Rail Line which runs north and south and the former Conrail Line, which runs east and west.
    Annually, these transportation routes are used to move millions of tons of hazardous materials of varying classes through our county. These transportation routes are also neighbors to some 25,000 residents of Mason County.
    At any given time, the potential exists for loss of life, property and commerce. The impact of a transportation accident is real to our county, in that Mason County has experienced several train derailments, along with nonaccident rail car releases in the past few years.
    On a daily basis, we face the potential for a highway chemical release due to the heavy semi-tanker traffic on U.S. Route 35, which leads to and from Central West Virginia Chemical Valley located in Charleston.
    A recent study by the National Institute of Chemical Studies revealed that some 34,000 shipments of hazardous material travels this two-lane highway yearly carrying an estimated 500,000 tons of hazardous material. Taking these rail and highway factions into consideration, along with the potential of a river transportation release, rural Mason County, like all other small rural areas across the United States, are faced with the monumental responsibility of hazardous material response duties.
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    These responses overwhelm even the best-prepared rural system. There are many areas affected by this hazardous material response, including financial aid, pre-incident technical training, available labor, specialized technical equipment and other logistical needs. The problems are real and the events are happening on a daily basis across the United States.
    No one local agency has the dedicated resources available to ensure the safety of their citizens. In order to ensure proficient hazardous material response, we need legislation that would provide the vehicle for training and funding, as well as development of numerous properly equipped regional response teams in each state.
    At no time were these needs more magnified and the inadequacies so revealing that on November 5, 1998, at approximately 5 a.m. in Henderson, located in Mason County, West Virginia, a CSX train moving through the area derailed sending several cars crashing onto West Virginia Route 2 and the surrounding areas adjacent to the Ohio River.
    That particular morning, a heavy fog blanketed the Ohio River with a visibility of some 100 to 200 feet. The initial responding units were forced to set up their command post about one-half mile from the derailment, as it was impossible to distinguish between the fog and any developing plume.
    At approximately 9 a.m. that morning, the fog finally lifted enough to reveal several rail cars lying on their sides leaking, at that time, unknown substances which later were identified as hydrochloric acid. An immediate evacuation, as well as shelter in place was ordered in the areas as needed. All of Route 2 was diverted, the traffic on that particular highway, for up to three days, along with the Ohio River barge traffic. Later, a no-fly zone was requested from and granted by the Federal Aviation Administration.
    This incident also impacted our neighbors in Ohio. The Gallia County Ohio officials were notified our train derailment and of the impending release, and they, too, had to take actions to ensure for their public safety.
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    During the emergency operations, some 150 responders representing 35 local, State and Federal agencies descended upon Mason County to deal with the train derailment and resulting hazardous material release. However, you must keep in mind a response delay of many hours occurred due to the travel distances of key personnel called in to respond for their technical knowledge. This barrage of responders complicated the management of the incident due to their logistical demands and needs.
    It became evident early on that providing for the basic human needs alone would be a challenge, both logistically and financially. In addition, the issues of control and administration became problematic as each individual agency had their own agenda in mind when suggesting possible solutions to the problems.
    As Emergency Services director, I found that, as a county and local jurisdiction, we were ill-prepared to successfully handle such an incident. The needed technical training, financial and logistical support was not available in Mason County.
    With regard to the issue of training, the difficulty faced by the volunteer communities is monumental. Most volunteers have only one choice in receiving the needed technical training, which is to take time off from work and sacrifice their families' paychecks in order to receive hazardous material training which is insufficient, at best, for a front-line responder.
    It is equally unreasonable to ask them to respond to such a highly dangerous incident which is out of their normal scope of operation. Fire fighting has changed in the United States. We no longer put out fires, but we respond to incidents which are, at best, many, many days in duration and above our scope of operation.
    Mr. BLAKE. In closing, I would like to emphasize how great are the needs of rural America and its volunteer responders for ongoing technical training in the field of hazardous material response and the proper equipment needed to ensure safety of the responders.
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    Also, all manufacturers and shippers of these hazardous materials must accept their responsibility and do their part in providing training and financial support for these local, front-line, first responders located throughout the United States.
    As long as society demands new products and chemists continue to discover new chemicals and compounds, the local volunteer agencies will be required to respond to these problematic incidences on a regular basis undertrained and underequipped.
    Thank you for allowing me to speak, and I would ask you for your comments and questions.
    Mr. FRANKS. Thank you.
    Mr. Nesbitt, welcome.
    Mr. NESBITT. Thank you, Mr. Chairman. My name is Frederick Nesbitt. I am the director of Governmental Affairs for the International Association of Fire Fighters, and we represent more than 225,000 fire fighters and emergency responders across the United Stated and Canada.
    In less than a decade, our Nation's approach to hazardous material transportation has been removed from the dark ages and put on a course prepared for the 21st Century. Much of the credit for this extraordinary turnaround rests with the very members of this Committee, but much remains to be done.
    We can no longer deny the real possibility a terrorist will target hazardous cargo being shipped through densely populated areas. And add to this the reality that high levels of radioactive waste may soon begin its trek from every corner of this Nation to Yucca Mountain, and you have the potential for a disaster.
    My point this morning is not to cause alarm. The strides we have taken in recent years are indeed impressive, but they are only the first steps. There are four issues pertaining to the Hazardous Material Transportation Act that the Nation's fire fighters wish to address.
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    The first is training funding. Adequate training of emergency response personnel is essential to protecting the public safety. Current law authorizes two separate programs to train fire fighters to respond to transportation incidents involving hazardous materials. The first is funding provided directly to states for training, and the second is a train-the-trainer program run by a national, nonprofit organization. I am pleased to say that my organization won the bid to provide this training, and I would like to take a moment to share our experiences with you.
    Under the 1994 law, $250,000 was allocated from the Trust Fund and $1 million authorized in appropriations for the train-the-trainer program. We asked the committee to consider raising the allocated money from the Trust Fund for this training program because $250,000 does not even begin to address the needs in training fire fighters.
    In fiscal year 1996, the $250,000 that we received from the Trust Fund was used to train 191 trainers—30 more than we had proposed in our grant application—which translated into full operations-level training for nearly 1,000 fire fighters. We train the trainers, they go out into the fire departments and, in turn, train fire fighters.
    We believe that increasing the allocation from the Trust Fund would be the single most effective way this committee can assure that the Nation's first responders are adequately trained to respond to hazmat incidents.
    Number two deals with training standards. There is a growing concern among the Nation's fire fighters that the hazardous materials transportation funding that is provided to the States for emergency responder training is not being well spent. This is not the first time I have raised this issue with the subcommittee. The level of training that is currently being provided in many States is simply inadequate. We believe the deficiency can be addressed by simply closing what we view as an unintentional loophole in the existing law.
    Although the Department of Labor regulations clearly indicate that emergency response personnel should be trained at what we call the ''operations'' level, too many States are training fire fighters at what is called the ''awareness'' level, which does not provide them with adequate training to perform their duties at a hazmat incident.
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    I am sure you will agree that operations level training is the only appropriate training level for fire fighters. We ask the committee to close the loophole which allows States to train fire fighters at the awareness level by specifying in the law the training provided under the act must train fire fighters ''to protect nearby persons, property or the environment from the effects of a release.''
    Number three deals with the identification of hazardous cargo. Fire fighters often say that the most important tool they have responding to an alarm is not a hose or an axe, it is information—accurate, timely information. Without this information, we are not able to respond accordingly, and our members' lives are placed in jeopardy.
    We have been part of an organization called Operation Respond, helping develop a system called the Operation Respond Emergency Information System. You are going to hear more about that, and so I will not dwell on it, but what I will tell you is it is a good system, it works, fire fighters trust it, it has reliability, and we support and urge the committee to provide additional funding until this program can be expanded to other fire departments and police departments across the Nation. And not only does it go into dispatch centers, but we envision it in every police car and on every fire vehicle, so when emergency responders respond to a hazmat incident, they know what they are dealing with, they know what safety precautions to take, they know how to respond and, most importantly, how to protect their own lives.
    The fourth issue is exemption from safety regulations. If the Nation's fire fighters receive adequate training and can access reliable information at the scene of an incident involving hazardous materials, we believe we can protect the public and we can protect ourselves.
    The statement presumes, however, that the regulated community is abiding by hazmat regulations and has not been granted unwarranted waivers from safety requirements.
    There was a proposal in the last Congress that was defeated I think four different times to exempt certain agricultural commodities from the hazmat safety regulations. Two arguments were offered in support of the proposed exemption. The first is that complying with the law would create an undue financial burden on a struggling industry. In fact, the cost of compliance with the regulations is minimal.
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    The second argument offered by the agricultural retailers is that the volunteer fire fighters in farming communities are already aware of what chemicals are delivered to the different farms in the different seasons and actually are trained by the agricultural retailers. This quaint vision of small-town America is at odds with reality. All you need to do is look in Montgomery County, Maryland, Rockville, which is hardly a farm area, but there is an ag retailer in that area that delivers agricultural products such as these to farms in the area and, to my knowledge, the fire fighters in this area have not been trained by anyone other than the fire department and through our kind of training program.
    The ag retailers failed to make a compelling case why an exemption which places emergency response personnel at risk should be granted. The entire fire service is united in its strong opposition to this unwarranted proposal.
    At this time, Mr. Chairman, I ask to have inserted in the hearing record a statement from the International Association of Fire Chiefs expressing their strong objections to this exemption.
    Mr. FRANKS. Without objection, so ordered.
    Mr. NESBITT. Another unwarranted exemption request deals with chlorine gas for which normal protective gear and equipment worn by fire fighters does not provide protection against chlorine gas vapors. Chlorine gas will become even more lethal when mixed with many other hazardous substances.
    Mr. Chairman, we are opposed to all exemptions that place fire fighters' lives in jeopardy. I do not wish to be dramatic, but I would be remiss if I did not say these exemptions could really be called ''kill a fire fighter'' exemptions. Because as sure as I am sitting here, Mr. Chairman, I guarantee you, with exemptions such as these, fire fighters will die. And maybe none have died that we know about, we also know that the reporting requirements are very loose and not very accurate, but we want to create perfect conditions. We want to create conditions where fire fighters are not placed in jeopardy. And we do not want to come back to you two or three years from now and bring the spouses and children of deceased fire fighters and say they died because an exemption was put into the law, and now we are asking you to change the exemption and deny this exemption.
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    America's fire services are united. We oppose the two exemptions. We strongly support uniform standards and compliance.
    Mr. Chairman, today you have the opportunity to build upon the solid foundation you and your predecessors have laid to create the finest system of transporting hazardous materials the world has ever known. America's fire fighters stand ready to work with you to complete the goal and prepare America for the challenges of the 21st Century.
    I thank you for this opportunity to present our views, and we would be happy to answer any questions you may have.
    Mr. FRANKS. Thank you, Mr. Nesbitt.
    Mr. Everitt, let me just recognize the fact that we now have ten minutes to get to the floor to cast a vote. If you can take your requisite five minutes and no more, we can get to the floor and conclude the panel's testimony, but we want you to stay because we have some questions.
    Mr. EVERITT. Thank you, Mr. Chairman, and Ranking Member Wise. My name is Dale Everitt, and I am vice president of Operation Respond Institute. It is a privilege for me to be here today to participate in this hearing, and I am here today on behalf of the national associations, labor organizations, carriers and emergency responders that strongly support the activities of Operation Respond.
    I respectfully request that these summary remarks and my full testimony be included in the record.
    Mr. FRANKS. Without objection, so ordered.
    Mr. EVERITT. Operation Respond has produced a technology that works and is in over 650 emergency response centers in 37 States and is rapidly spreading to Canada and Mexico.
    Mr. Chairman, in order for Operation Respond to reach complete self-sufficiency, we need continued help. An authorization and continued strong support from the Department of Transportation and the private sector will assure that we reach that goal.
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    The Department of Transportation's ITS program has played a major role in supporting our efforts, and I cannot overemphasize the importance of the DOT commitment and the private sector commitment, a classic public-private partnership which assures the public a substantial return on investments for funds devoted to the program.
    As a former fire fighter and a departmental officer, I know the value of accurate and responsive information. Our software connects fire and police departments with the databases of railroads and motor carriers so that in the event of a hazardous material incident, the first responder obtains quick, accurate information. And once the responder knows what the contents are, they can respond quickly and appropriately.
    The men and women from the fire and emergency medical services have embraced this program because they are trained to always have a multiple source of content information. They favor Operation Respond because it provides the critical information so quickly. Now we find law-enforcement officials are enthusiastic about the role of Operation Respond in protecting their safety. That is because, in many cases, a patrol officer, deputy sheriff or state trooper is first often the one on the scene.
    I am not here to tell this committee that Operation Respond is the ultimate and only answer to improving hazardous material emergency response. Our position, and that of all of the organizations supporting us, is that our system is another valuable tool for the arriving first responders. Our goal is to make this the sharpest tool in their emergency response tool box. And to accomplish this, we have linked the emergency response software with CHEMTREC Center and with the National Safety Council's CAMEO software system and fully integrated the North American Emergency Response Guide.
    Mr. Chairman, our success is due to the cooperation that we facilitate between the emergency response community and the carriers, and we are proud that the Class One railroads of the United States and Canada are all participants in this program. This includes Amtrak and other commuter railroads. The passenger train schematics identifying emergency windows, on-board safety equipment and electrical systems are an important component of Operation Respond. Working with Amtrak, I am pleased to report that every fire department between Washington, D.C. and Boston, Massachusetts that would respond to a passenger train incident now has our software. We are also working with Amtrak to incorporate schematics of the new high-speed train sets into the software and to conduct over 500 training sessions for the Northeast Corridor.
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    With the renewed authorization, we will take steps to integrate our software in multiple-user network environments, where it can continue to enhance the safety of hazardous material incidents. I am proud that Houston's Transtar Emergency Management Center has enthusiastically agreed to test our software in their regional center. Our long-term goal will be to integrate Operation Respond with all regional transportation management centers.
    The chemical industry is recognizing the value of Operation Respond, and we are particularly pleased that many carriers recognize participating in our program is their commitment to the industry's responsible carrier program.
    To conclude, I respectfully submit that the initiative to apply ITS technologies to enhancing safety in hazardous materials has, in fact, worked.
    Thank you, sir.
    Mr. FRANKS. Mr. Everitt, I am sorry we rushed you there. I apologize for that. We are going to move. The floor will be in recess for a few minutes, and we shall return.
    Mr. WISE. We shall respond, and then be right back.
    Mr. FRANKS. Indeed.
    [Recess.]
    
    Mr. FRANKS. Ladies and gentlemen, thank you for reconvening. Now we're at full complement.
    Let me first make an observation, after having heard the testimony of this particular panel. I suspect I shouldn't interject myself in such a way, but I want to make an observation, and that is that I know, from working my local responders, that this panel is of extraordinary importance to them. And I want all of you to know that all of our constituents, and I say that in a bipartisan, collective way, rely truly, in terms of protecting their lives and safety, on the services that all of you are so intimately connected with.
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    So I want to tip my hat to all of you and give you a heartfelt thanks because all of this process of trying to reauthorize this important legislation is, candidly, somewhat less meaningful unless we attend to the issues that many of you have raised during the course of your testimony.
    Let me, if I can, begin with some quick questions, and turn it over to our other members.
    Mr. Nesbitt, you talked about, in your testimony, in your written testimony, the importance of upgrading the training level from one of awareness to operations. What would that mean? What kinds of skills would firemen then possess and what do you speculate might be involved? Would we need more instructors? Would we need longer classes? Fred, tell me how that would work, how that would come about.
    Mr. NESBITT. The primary difference, Mr. Chairman, is certainly a longer hour course in terms of the number of hours they must take, first of all, in order to be certified as operations level, number one; and, number two, it is a whole different course. The awareness course is simply to teach them, when they're dealing with a hazardous material, that it is a hazardous material and to take precautions.
    The operations, actually, allows them then to go in and begin to operate in a dangerous environment in terms of personal protective gear and equipment, how to respond, whether to use water, whether to use foam, whether they need to do evacuation and a whole bunch of other elements. So it is a much more comprehensive.
    The awareness just allows them to say, well, yeah, we have a hazmat problem here, but we cannot do anything about it. Operational level allows them then to fully respond to a hazardous material incident. So the big difference is the number of hours of training. Awareness is about eight hours. Operations level is somewhere probably around 24 or 30 hours, somewhere in that area.
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    Mr. FRANKS. That is what I was looking for. Thank you very much.
    Mr. Everitt, you talked about the fact that Operation Respond secures funding from two sources; from the FRA, as well as from ITS funding. Could you break that out; what percentage of your funding is from ITS and what percentage of your funding is from FRA.
    Mr. EVERITT. Yes, sir. Last year we received $1 million from the Federal Highway Administration, the ITS program, and $103,000 from FRA.
    Mr. FRANKS. Thank you, Mr. Everitt.
    [Laughter.]
    Mr. FRANKS. Mr. Wise?
    Mr. WISE. I want to thank each of the panel, each of whom I am very grateful that you are here.
    Mr. Everitt, I want to thank you for what you and Operation Respond have done for West Virginia and particularly your quick response once there was, following the Scary disaster, in which you responded and worked with the railroads, and we have now implemented Operation Respond on a statewide basis, of course, as well as by many counties as well. So I just want to thank you for that.
    Mr. Nesbitt, we have been together a long time, and I appreciate the opportunity to work with you.
    Chief Fife, thank you for coming and making this trip. And I also want to thank you and our fire marshal, Walter Smittle, for all you have done in making West Virginia a lot better place to be and a lot safer place to be.
    Mr. Blake, you and I have gotten to know each other through fire and water, through flooding and through hazardous materials' situations. I was telling the Chairman a little bit earlier how you seem to be in the middle of most of it in that small Mason County not only had, of course, the Henderson derailment, but then had the one in Guyandotte that was fairly close by and then, of course, in Putnam County, the Scary tragedy as well.
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    And so hazardous materials are very much, regrettably, a part of your life, and you illustrate well, and you testified well about the challenges facing a rural county to deal with this. I appreciate the professionalism that you brought to it and also your testimony today.
    Part of why we are here, and why I appreciate your testimony is that out of West Virginia, Chief Fife and Mr. Blake, particularly, I have developed some legislation that I want to try and move in this hazardous materials bill, and that is dealing in setting up regional response teams that would be trained and equipped to help coordinate hazardous materials accident responses.
    One of the main concerns that you have told me and others have told me of local responders at hazmat accidents in rural areas is the need for more coordinated communication, which is a primary objective for regional response teams.
    While there are currently a few regional response teams set up and operating with the assistance of the State Emergency Response Commission, this program would establish a Federal commitment to enhance emergency response at the local level. It would establish a competitive grant selection process in four different regions of the country, as determined by the Secretary of Transportation. I want to emphasize this would be a pilot program, and I would be seeking $400,000 for each of the four grantees per year.
The Secretary would consider the grantees' ability to obtain financial resources from non-Federal sources as a way of also paying for it. Each grantee would assist the area communities in planning for and responding to hazardous material emergencies.
    Because rural areas like West Virginia are often so geographically spread out and isolated by the mountains, the response teams would be provided with superior training and resources. And in the event of an accident, they would be dispatched to the scene to assist local volunteers who are often the first responders to arrive on that accident scene. The regional response teams would be made up of emergency responders from various local communities' fire, rescue, law-enforcement and industry representatives, and they would be sharing their increased knowledge of response techniques within their local communities.
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    So I urge your support on this. And, incidently, this would be done, Mr. Everitt, in conjunction with Operation Respond. So we have got Operation Respond providing the technical ability, the software, the knowledge. We have got the regional response teams providing expertise, training and resources, and so that, even in the most rural communities, such as the gentleman in front of me serves so well, and even the most rural communities, we can guarantee that there can be that immediate, and professional and competent response that we have come to know in West Virginia, but I think sometimes we are stretching our resources way too thin and challenging our people way too much.
    Mr. Chairman, I have a number of questions for the panel, but what I would like to do is just submit them, and I greatly appreciate your willingness to bring this panel before the subcommittee today.
    Mr. FRANKS. It is my pleasure. And all members shall have five legislative days, following the conclusion of this hearing, to submit questions to the witnesses in writing. We would ask your cooperation in helping us get those answers.
    Mr. Ewing?
    Mr. EWING. Thank you, Mr. Chairman, and thank you to the panel. I know at least one of you represent fire fighters and people who stand up for us every day of the year and protect us against harm.
    I have been an advocate for reasonable and responsible control of the transportation of hazardous materials. I also think I am pragmatic and practical. In our State of Illinois, for the last 17 years, we have had an exemption for agricultural purposes. If you stay and listen to the final panel, you are going to hear the fact that we have had no incidents in 17 years. And this is a matter that is very important to the rural community in an agricultural state.
    The University of Illinois has said that, if the provisions of the law were applied to every farmer, it would cost him $2,000 a year in Illinois. When we have the threat of losing ten percent of our farmers through economic conditions, a $2,000 bill to put a placard on your car, to have an 800 number, to man things that have never been used in 17 years appears to be overkill.
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    I would just wonder what your comment might be for reasonable exceptions, particularly based on a history of 17 years where it has not been a problem. And these exceptions were left to the States. If a State or a local unit of government did not want those exceptions, they did not have to have them.
    Mr. Nesbitt?
    Mr. NESBITT. Well, first of all, as you know, we oppose any exemption. We support uniform standards, and regulations and conformity when it comes to hazardous materials, and we also oppose the agricultural exemption that you support.
    We have not seen the report about the costs of compliance. I would find it difficult to believe——
    Mr. EWING. I will provide it to you.
    Mr. NESBITT. I would be happy to look at it. I have problems believing that the cost of compliance would be that.
    The other problem we have is, when you do not have uniformity, and you do not have standards, and fire fighters are dealing with products they do not know whether they     are marked, whether they are not marked. We do not know what we are dealing with. And then I think what you are doing is placing fire fighters' lives in jeopardy.
    You say there have been no incidents in 17 years. Our experience is, and I am not necessarily disputing your facts, but our experience is that the reporting requirements, there are no reporting requirements, and we can have hazmat incidents every day, and there is no record made of them. Usually, the only reporting is if it's a serious incident, someone has been killed, there has been major destruction there reported. But every day we have incidents dealing with hazmat that the fire department responds, they respond carefully, the issue is resolved, no one is hurt, no one is injured, there is no property damage, and it may be resolved in two or three minutes.
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    So we have great concern about exempting some of the products that you would want to exempt under the agricultural exemption.
    Mr. EWING. We have, over the years, done the uniform one-size-fits-all. I think that that is a little bit of swimming upstream now. We have realized that that is not practical. It does not necessarily work. This is a very big, a very broad country.
    Now, when you go to moving hazardous wastes across this country, I think it is responsible and reasonable, but there are times and places where those types of expenses put on the local citizenry caused a great deal of disrespect for their government and even actual disregard of the laws when they do not make sense.
    I understand what you are saying, and I know that you certainly must be well-intentioned in this. I cannot believe you would be out to take $2,000 away from every farmer in Illinois. I would hope not. But I would hope that you would also be responsible and reasonable as you examine that some others have different ideas of what maybe is best for us.
    And I will provide you with that, and you do not need to respond.
    Thank you.
    Mr. NESBITT. Thank you.
    Mr. FRANKS. Any other questions?
    Mr. EWING. No, I am through.
    Mr. FRANKS. Thank you.
    Mr. Wise has one follow-up question he would like to ask.
    Mr. WISE. Just a quick question. One of the problems that I often hear about is the emergency response is one thing. It is what happens afterwards and who pays for the response. Because I assume that that can be very costly, particularly when you have to get your crews out, and you have got a lot of expensive equipment, and phones, and lost wages and a lot of things that that can be costly, particularly to our smaller counties.
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    Mr. Blake, I am curious, what was the cost to Mason County of the Henderson derailment?
    Mr. BLAKE. The final figure, Congressman Wise, I believe was $56,000 in overtime, extra expenses and logistical support that we had to either purchase, rent or bring in. At this time—that was November 5—we have not received reimbursement from CSX or the manufacturer of the hydrochloric acid. We diligently are waiting and patiently waiting hoping that we can resupply the coffers. Mason County is rural and is not a rich county. So, therefore, it put a definite strain on the county budget, as well as the——
    Mr. WISE. What is the population now of Mason County?
    Mr. BLAKE. Twenty-five thousand.
    Mr. WISE. $56,000 here and $56,000 there hits you pretty hard in the emergency response, and I assume, Chief, particularly when most of our responders are volunteers; is that correct?
    Mr. BLAKE. That is correct. I had one incident that happened four years ago. We spent out of our budget $9,000.
    Mr. WISE. This is Greenbriar County?
    Mr. BLAKE. Greenbriar County, out of the City of White Sulfur's budget, $9,000, and we have not got a cent.
    Mr. WISE. Thank you very much.
    Mr. FRANKS. Gentlemen, thank you very much for your participation in today's hearings. It has been very helpful. Thank you.
    Our final panel today consists of Mr. Larry Wort, chief of the Bureau of Safety Programs of the Division of Traffic Safety of the Illinois Department of Transportation; Ms. Jean Trobec of the Illinois Fertilizer & Chemical Association; and Mr. Jerry Wallace, general manager of Swim Chem, on behalf of the National Association of Gas Chlorinators.
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    Welcome, folks. Would you like to begin?
TESTIMONY OF LARRY WORT, CHIEF, BUREAU OF SAFETY PROGRAMS, DIVISION OF TRAFFIC SAFETY, ILLINOIS DEPARTMENT OF TRANSPORTATION; JEAN TROBEC, GOVERNMENT RELATIONS DIRECTOR, ILLINOIS FERTILIZER AND CHEMICAL ASSOCIATION; AND JERRY WALLACE, GENERAL MANAGER, SWIM CHEM, ON BEHALF OF THE NATIONAL ASSOCIATION OF GAS CHLORINATORS

    Mr. WORT. Thank you, Mr. Chairman.
    Chairman Franks, Ranking Member Wise, and members of the subcommittee, we appreciate the opportunity to submit testimony concerning hazardous material transportation reauthorization issues on behalf of the Illinois Department of Transportation to this subcommittee. We thank the subcommittee and its members for your past support for a strong Federal hazardous material transportation program and for taking into consideration Illinois' concerns and recommendations as you develop reauthorization this year.
    IDOT understands that careful regulation of the transportation of hazardous materials is essential for public safety. We appreciate, from our own experience, the difficulties in balancing the reduction of risk, on the one hand, and the costs of compliance on the other in traffic safety regulation and enforcement.
    However, we believe that provisions in the HM–200 regulations adopted in 1997 by the U.S. Department of Research and Special Programs Administration that preempts States from granting certain exceptions to hazardous materials used by farmers in their fields are unnecessarily restrictive.
    We recommend that States continue to be allowed the make certain exceptions, as they did prior to the HM–200 preemption provisions taking effect. We do not make this recommendation on a theoretical ''States' rights'' ground, but rather on the empirical evidence of the safety record in Illinois for the past 17 years.
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    IDOT's concern and the focus of this testimony is the need for States to have flexibility to grant relief from national regulations designed for interstate highway transport of hazardous materials to intrastate transport of certain agricultural production materials, which I will call APMs from here on out.
    APMs include fuels, pesticides and fertilizers transported to and from the end agricultural user by farmers and private carriers in support of agricultural production activities. The following comments address these issues concerning HM–200's effect on intrastate transportation of these APMs.
    Illinois has provided relief for the intrastate movement of certain hazardous APMs since 1981. RSPA officials often referred to the Illinois hazardous material regulatory and enforcement programs as models for others to follow. However, in HM–200, RSPA commented that agricultural exceptions, such as Illinois', are, and I quote, ''not in the public interest and are contrary to the congressional intent that there be a uniform system of regulations for the safe transportation of hazardous materials. Of particular concern is the potential lack of uniform communication and miscommunication to emergency responders in any location where they may encounter hazardous material incidents.''
    We feel that RSPA may not have had a proper understanding of Illinois' experience with exceptions in making this assessment. IDOT created its agricultural exception to comply with the legislative intent expressed in the Illinois Hazardous Materials Transportation Act.
    The Illinois legislature mandated that IDOT not impede through unnecessary regulations the movement of fuels, fertilizers and pesticides used in routine farming operations. IDOT, working with representatives of the agricultural community and emergency response agencies, developed the exceptions. They are listed in Attachment A of my remarks, and I will not go through that, but they will be included in the record.
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    While the Illinois exception provided relief from some regulations, it retained the most important aspect, that of containment, by ensuring that all hazardous agricultural product movements were transported in approved packaging.
IDOT also limited the classes and quantity of material covered by this exception.
    The majority of APMs moved from the retailer to the farm and from farm to farm in the original manufacturer's packaging. Packaging may include bags, boxes, drums or jerricans. These nonbulk packages are limited to a water capacity of 119 gallons for liquids and 1,000 pounds for solids. These packages meet the applicable specifications found in 49 CFR and are marked and labeled by the manufacturer to communicate their hazards. The protection provided by both the specification packaging and the communication provided by the required marking and labeling provide reasonable safeguards without unduly burdening the individual farmer or retailer making the deliveries to the farm.
    Many APMs are transported in bulk packages, those with a water capacity greater than 119 gallons and more than 1,000 pounds of a solid. These may include cargo tanks for fuels like gasoline, diesel fuel and propane. Fertilizers such as anhydrous ammonia move in nurse tanks. Ammonium nitrate fertilizer may be transported in a bulk spreader truck or a field buggy. Many herbicides, pesticides and soil amendments are diluted and custom mixed for custom field application in special sprayer trucks with capacities of 3,500 gallons. These diluted and custom mixes may also require approved packaging. An approved package is one that is specified in the hazardous materials transportation regulations for that material unless there is a specific exemption from specification packaging. Generally, most bulk packages will require placards and identification marking.
    Illinois granted an exception for ammonium nitrate fertilizer because some forms of ammonium nitrate fertilizers transported on highways are regulated, while others are already exempted from the regulations including placarding. Generally, this type of fertilizer, as an APM, is moved in sift-proof, bulk hopper-type containers designed for direct application of the fertilizer onto the field. These field buggies are readily identifiable as farm implements and not transport vehicles. The period of time for applying ammonium nitrate fertilizer is relatively short, so these implements are only on the roads for a short time during the year. The safety hazard in allowing these implements to move short distances over roadways for short periods of the year without placards was deemed to be minimal.
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    Since 1981, IDOT has continually monitored its agricultural exception, modifying it when necessary to meet the ever-changing demands of the regulatory process and the needs of the agricultural community. We want to emphasize that no reported incidents have occurred where the provisions of the Illinois Agricultural Exception have caused or aggravated a hazardous materials transportation incident.
    The farm chemical retailers and the farmers themselves, while not thoroughly cognizant of the Illinois hazardous materials transportation regulations or 49 CFR, are keenly aware of the hazardous materials that they work with as their tools of the trade. They know the products' potential for harm to themselves, their communities and to the environment. Their vigilance and product knowledge far surpass most motor carriers' knowledge of the hazardous materials that they transport over the highways.
    The safety record of Illinois' farm and retail APM transportation system is proof that agricultural exceptions to the hazardous material transportation regulations are not contrary to the public interest. In IDOT's comments to RSPA on proposed changes to HM–200 in 1993, we suggested that RSPA develop reasonable guidelines and create an APMs exception similar to the Illinois exception or as an APMs addition to the materials of trade exception. Once uniform guidelines were established, individual States would then have the discretionary authority to provide intrastate exceptions for the transportation of APMs.
    Illinois' agricultural-related industries' comments on the HM–200 rulemaking detailed its effect on the agricultural production industry. The comments expressed a significant economic impact that the loss of intrastate regulatory relief similar to IDOT's agricultural exception would create for the agricultural community. The cost of $2,000 per year per farmer would equate to roughly $154 million in Illinois based on the 77,000 farm operations that we have in the State. The Illinois Farm Bureau did their own analysis and estimated $3,000 per year, and that is attached to my comments here as Attachment B.
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    IDOT, after numerous meetings with the Illinois agricultural industry representatives developed and proposed language to be considered as the basis for revisions to 49 CFR, Section 173.5 as an agricultural exception within the framework of the Federal hazardous material transportation regulations. And that proposal is Attachment C to my comments.
    RSPA did incorporate some of the suggestions made by Illinois in their final revisions to HM–200. APMs were defined and quantity provisions were established based upon the Illinois comments. RSPA allowed States to grant total exceptions to farmers moving APMs from field to field of the same farm if the State so desired. RSP also allowed the States to provide limited relief to the transportation of APMs to and from the farm. These allowances only excepted the farmer from maintaining emergency response information during transportation and from the full scope of training requirements. Relief from specification packaging was also an allowable exception.
    Illinois incorporated all of these tolerances, except for the relief from specification packaging for the transportation of APMs by the farmer, and we have shown that current exception as Attachment D.
    Maintaining the approved packaging continues the prior requirements Illinois had in place as a means to ensure the safe transportation of APMs. Nothing, however, addressed the problem faced by both the farmer and the retailer, transporting dilute-strength, custom field-mixed chemicals. Generally, they are transported in bulk portable containers or field spray trucks of 3,500 gallons or less water capacity. These mixes may include both hazardous materials and hazardous substances, and their content and concentration will vary from application to application.
    Determining if the resultant mix continues to meet the definition of a specific hazard class or a hazardous substance is something that even the chemical manufacturers have problems determining. Yet a farmer or retailer is expected to properly classify, describe, mark, label and placard these various mixtures on a day-to-day or even a field-to-field basis. This does pose an impossible task. If these requirements were followed to the letter of the law, the agricultural industry would be spending its entire time analyzing their field mixtures for compliance.
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    The Illinois Department of Transportation Hazardous Materials Enforcement Program has focused its resources on those areas of hazardous material transportation that present an unreasonable risk to the public. Illinois took a cautious approach when it developed the materials or tools of the trade and the agricultural exceptions it provided in the Illinois hazardous material regulations. Regulatory relief was provided, but not without ensuring a reasonable level of protection to the public.
    RSPA should recognize the State's experience in this area and allow for Illinois' exceptions. By their very nature, hazardous material transportation regulations are difficult to understand and do not account for the myriad of small movements of hazardous materials that take place incidental to business or trade, particularly in farming.
    IDOT recommends that the States be given that flexibility to grant exceptions to intrastate transportation of hazardous materials where the risk to public safety is very small. In particular, we believe that our experience with exceptions to the Federal regulations for APMs demonstrates that selected relief for low-risk transport works. It has provided hundreds of millions of dollars of savings to farmers over the years, while still ensuring public safety.
    Thank you for this opportunity, and my comments with the attachments will be submitted for the record.
    Mr. FRANKS. Thank you.
    Ms. Trobec?
    Ms. TROBEC. You will have to excuse me. I am a little hoarse today. There is a bad bug going around Central Illinois. You might not want to go home for a couple of days, Tom.
    I am the Government Relations director for the Illinois Fertilizer and Chemical Association, and we represent the ag dealers in Illinois who, in turn, provide fertilizers, and chemicals and fuel to the farmers. So I will speak on behalf of ag dealers, but also for our good friends at Illinois Farm Bureau.
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    I have submitted written testimony, but really I would like to take this time to kind of address some of the concerns that I have heard people in this room express. I want you to understand, first of all, that the exemption in Illinois is only from placards and shipping papers, and it is only for essentially what can fit in the back of a pickup truck—about 500 gallons or 5,000 pounds of insecticide.
    We are not exempt from packaging. When a farmer comes to the retail site and picks up a pallet of Lorisban for his root-worm control, it is in a marked package, it has a poison label on it, it has a name that says organophosphorus pesticide and it has an ID number on it, and you can see it in the back of his pickup truck as plain as day. He takes it directly to the field for application usually within like a 20-mile radius of the retail source of supply which would be our ag chem facilities.
    When RSPA provided some relief to farmers, they did so in such a limited aspect that it truly provides no relief at all because it is only field to field, meaning that when they come to the retail site, and about 70 percent of what is applied in Illinois goes out in the farmers' pickup truck.
    So in those 45 days in late April and early May, when the farmers have got about a two-week window to get planted, they are coming into the retail site, they are putting a pallet of insecticide, maybe a mini-bulk of herbicide in the back of their pickup truck, we still have to offer them shipping papers, we have to tell them if they have over 1,000 pounds, which a pallet would be 2,500 pounds, that we have to placard all four sides of their truck. And let me tell you, farmers, God bless them, are very independent people, and some of them have some pretty nice pickup trucks.
     And for us to go and say, ''Listen, you have to comply with the law. We, as a dealer, have to offer you these placards. We have to tape these placards on all four sides of your pickup truck,'' there's going to be a lot of resistance in the farm community to that, especially when they know that they are going five miles down the road to their farm over a local road. They are not going through downtown Chicago. They are not going through downtown Springfield. They are not going through the U of I campus. They are going through rural Danvers, rural Cooksville, Cropsey, Illinois, to get to their farm.
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    So I just want you to understand that when DOT said they provided relief, in essence, the relief they provided is minimal. And if the farmer at the end of the season has an extra case of herbicide he wants to bring back to the retailer, he is not exempt. He has to provide shipping papers. If he has over 1,000 pounds, he has got to provide his own placards. He has to provide an emergency response phone number.
    And I am telling you, this is 49 CFR, for those of you who have never had the pleasure of reading it. It is not an easy document to understand. And for a two-month period in the year, for a farmer to have to try to understand the complexities of shipping papers, placarding, everything that goes along with this, it is just an impossible task.
    We have worked within the entire Government process to try to explain to people why we support our Illinois ag exceptions. And I am not going to say that there have not been any accidents. There are accidents. It is just that none of those accidents were aggravated because the farmer did not have a shipping paper or the ag retailer did not have a shipping paper or the truck was not placarded.
    Let me just give you a scenario here. You have a pickup truck going down Township Road 150 to the farm, and it hits a bump in the road, it hits a ditch, the pallet of Lorisban is ejected from the back of the pickup truck. It is still in its packaging. It is still marked. It is still labeled. It still has an ID number. The farmer, usually the first thing he does is he calls up his ag retailer and he says, ''Gosh dang-it, John. I just dumped my load of Lorisban over. Can you come out help me?''
    And even if for some reason the local emergency volunteer fire departments get involved, those guys live in rural communities, they know what a pesticide is. They can look at that package and see. It is Lorisban. It is a pesticide. What good does a shipping paper in the truck really provide them? They are not even going to look in the cab of that truck to see what that pesticide is. They are going to look in the ditch and plainly see it right there.
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    And the placarding, in and of itself, you know, there is already a poison label on the package. Why do they have to look at the side of the truck to see a poison placard? It does not make any sense, and that is why the farmers and retailers in Illinois are so frustrated. Because if we understood a real need for this thing, if we really thought that somebody's life would be saved because of that shipping paper or placard, we would not be here fighting for this exemption. But we truly believe that those two elements, and just shipping papers and placards provide no additional relief or no additional information to fire fighters.
    I have heard lots of horror stories today about tanker truck incidents on I–35 and the Route 2 explosions, but those are not retail ag incidents. There are no retail ag incidents to sit here in dismay about because they just have not happened because they are small quantities, less than 5,000 pounds, less than 500 gallons.
    When I went back and looked at some of the comments—and I just want to touch real quickly on ammonium nitrate. I know ammonium nitrate has a terrible connotation any more. We do not even really use that much ammonium nitrate in Illinois. It is very limited. It used to be used a lot more. It is not so much any more. And we are not especially interested in preserving exceptions for ammonium nitrate. I think most of us would happily slap a placard on our field buggies if this whole nightmare would go away.
    The only other thing that I would really like to say is that, in 1990, when Congress made the statement that variance from the Federal regulations can create the potential for unreasonable hazards—they use the word ''unreasonable hazards.'' We do not think what we are asking for is unreasonable, especially when we have 17 years of proof that the loss of a shipping paper or lack of a shipping paper has hurt someone or lack of a placard has hurt someone. And that is why we feel so strongly about this.
    I will just share with you, too, that the costs involved, OK, yeah, you can probably buy a placard for a buck or two. But up to $1,500 ticket if you are written up by IDOT for not having a placard. So when you have got two-and-a-quarter corn, and you are a farmer who does not want placards taped to the side of your new Dodge 150 pickup truck—sorry, Ford F150—you are not going to be able to sit real well with a $1,500 fine because it is going to happen, and IDOT does not want to do it, but they are being forced to do it. And this spring, when all of those placards start getting taped on those trucks, I am going to schedule myself out of the office, and I think Larry is probably going to have to hire some additional staff because it is just going to be—people in the country, when they realize the impact, are really going to come unglued on this.
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    I think, just in closing real quick, if exceptions are reasonable and proven to be safe, like that of Illinois, shouldn't there be some kind of mechanism to recognize this reality and this individual need of the States? I really think that there ought to be some type of mechanism. If West Virginia doesn't want to do it, they don't have to do it. If New Jersey doesn't want it, they don't have to do it. If Iowa decides they don't want to do it, they don't have to. But there should be some mechanism for the States that can prove it, and have it be reasonable, and have it be enforced and have it be monitored. There ought to be some avenue for us to go and provide relief for the ag community.
    Mr. FRANKS. Thank you.
    Mr. Wallace?
    Mr. WALLACE. Thank you, Mr. Chairman, Congressman Wise, for affording me the opportunity to appear here today to testify on behalf of the members 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 ten employees and operates nine vehicles. Many of our members have been operating in this industry for 30 years or more. I, myself, am a second-generation member of this industry.
    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 vehicles carrying any amount of gas chlorine to be placarded. These regulations fail to recognize any difference between our small service trucks, which usually carry approximately 150 pounds and never more than 300 pounds of chlorine, and those of our suppliers who carry as much as 40,000 pounds of gas chlorine packaged in 2,000-pound containers.
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    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.
    Such vehicles, under our proposal, would display signage marked ''chlorine gas'' on all four sides of the vehicle. Our industry is somewhat seasonal in nature. It is for our busy summer season that we must hire new employees. As you know, placarded vehicles may only be driven by those with a commercial driver's license, a CDL, and in our case, a hazardous materials endorsement.
    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're the flip side of that coin. Members of our industry universally drive standard-size or smaller pickup trucks. Yet we are now forced to pass a written test designed for tractor-trailer operators. We then must pass a general hazardous materials test that is written for commercial haulers of various cargos which contains little, if any, information that is pertinent to our extremely narrow hazmat transportation. After this, we must pass an actual behind-the-wheel driving test in a vehicle that we are already licensed to drive, a standard passenger vehicle.
    It can take, in some cases, as long as four to six weeks, and often longer, for an individual to complete this process to receive a CDL. During this time, our new employee is unable to engage in the work for which he was hired because he doesn't have the proper driver's license to go out on the road. So as much as 33 percent of the labor costs associated with the hiring of additional employees pays for nonproductive time mandated by Federal requirements. These requirements are extremely general in nature and add nothing to the safe transportation of gas chlorine by our industry.
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    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 sensible Federal regulations that our industry has operated so safely over the past 40-plus years; such as training of our employees that are required, packaging of the material, the labeling and markings on the cylinders themselves. Our proposal does nothing to restrict the continued implementation of these requirements.
    Mr. Chairman, we have sought relief from RSPA. Their 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 Science's Transportation Research Board to conduct a risk analysis of our transportation of gas chlorine. This firm, coincidentally, lists the U.S. 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.
    When confronted with this authoritative analysis in 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 risk to the public, due to the release of chlorine gas 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.''
    Mr. Chairman, the fact remains that there has not been a single reportable transportation incident in our industry during the last 13 years for which DOT data is available. Over that 13-year period, our industry has made well over 100 million safe transports to our customers. We now must 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 has been swept up.
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    This regulation has no actual benefit to the public and certainly has no benefits in light of the costs with which it is associated. This regulation can cost our small businesses up to approximately $4,000 for every new employee, and this employee may be only employed for four to six months.
    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 previous requirements for this industry. This is supported by our flawless safety record both before and after these new regulations took effect.
    In closing, we again ask that you include legislation to waive the Federal placarding requirement for vehicles of 10,000 pounds or less gross vehicle weight carrying 15 or fewer 20-pound capacity cylinders of gas chlorine in intrastate commerce for the purpose of residential swimming pool maintenance.
    And one last comment. I understand the buzzers. In response to a previous statement made by another panelist, our industry has operated safely for a lot more years prior to these regulations coming into effect than after them. We are not proposing anything that would put anybody's lives in jeopardy. Our alternative signage that we put on there was something that was actually required by the Phoenix City Fire Department prior to these regulations coming into effect. So they recognized that that was a signage that was conveying the information they needed to safely respond to any accidents that they never had to respond to. But if they did, they were confident that that signage met their needs.
    I thank you for the time, and I would respond to any questions when you get back.
    Mr. FRANKS. I would like to thank the panel very much, and I would like to yield my time, and I understand Mr. Wise would like to yield his time to our friend, Tom Ewing.
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    Mr. EWING. Mr. Chairman, do you want to try and complete before the vote?
    Mr. FRANKS. It is entirely up to you, sir. I would be happy to come back. I would be happy to come back.
    Mr. EWING. I will, too, but I think the question or the comment I have, Mr. Chairman, is that we have had three excellent witnesses that have laid out the reason for reasonable exceptions to the hazmat regulation.
    I just would like to reiterate with Mr. Wort the fact that the exceptions in Illinois really are very limited, the deal with placards, the deal with signage, I mean, shipping papers.
    Mr. WORT. Yes, sir. Yes.
    Mr. EWING. And that has been the exception over the years.
    Mr. WORT. Yes, sir. Yes.
    Mr. EWING. The requirement for the chemicals or the hazardous material to be in a package, they had to meet all of the packaging requirements of the current law.
    Mr. WORT. Yes, sir.
    Mr. EWING. And so it was all really out in the open for anybody to see what was in those packages.
    Mr. WORT. That is correct.
    Mr. EWING. Would the requirements which Illinois has used as an exception before, would they have any impact in an accident scene, as far as identifying for those who might come out, then—we all have concern for fire fighters and emergency people that have to deal with these accidents—is there anything that you have excepted that, in your opinion, you believe might cause a hazard to those people coming to address the problem?
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    Mr. WORT. No, sir.
    Mr. EWING. I ask the same question to you, Ms. Trobec.
    Ms. TROBEC. You know, it is interesting, Tom, because when RSPA exempted farmers from field to field, they exempted them from everything. They exempted them from this entire book. So, theoretically, when that farmer got to the field, he could take his Lorisban out of the pallet and put it in a garbage container if he wanted to, and he could not get a ticket for that.
    When Illinois adopted the farmer exemption just recently, we had to put in our State rules that the farmer had to keep the stuff in a DOT package. I mean, that is the basic lack of understanding among the Federal Government of what the ag situation is really like, and that is why we feel so strongly is because those packages are so visible. They are pesticides and herbicides. They are not a myriad of solvents and chemicals from a factory. They are pesticides, and herbicides and fertilizers, and I cannot think of any instance, and I know our volunteer fire departments would agree with us, where they have been inhibited or hindered by not knowing what was in the back of the pickup truck if there was an accident.
    Mr. EWING. Under the Federal law and as it is applied in Illinois, if I got a five-gallon can of gasoline and put it in my car, in the trunk of my car to go home and mow my two-acre lawn, what requirements do I have to meet?
    Mr. WORT. Well, as far as the hazardous material transportation regulations go, you would not have to meet any regulations for the five-gallon can of gas because of the quantity.
    Mr. EWING. And neither would a farmer or anybody else. That is under the——
    Ms. TROBEC. Under the materials of trade exception, farmers are allowed some relief for small packaging. Ag retailers are not because they consider that transportation for us, where a farmer is considered use of the product. So if an ag retailer takes a ten-gallon container of bucktrill [ph.] out to the field, we have to have a shipping paper. If the farmer takes it, he doesn't because he is under the materials of trade exception, but that is an extremely, extremely limited exception.
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    I, also, one thing I would like to touch on quick for my friends at Farm Bureau. In Illinois in the back of a pickup truck of a farmer you will see a gas container that is bolted to the truck that farmers carry gasoline and diesel in to provide added fuel for their tractor, so they don't have to bring the tanker-truck out to the field to load up their tractor. We were able to keep that specification packaging under some Federal allowances.     However, the farmer has to carry a shipping paper for that gas can. He has to label the gas container now. Although he is exempt from the emergency response phone number, that is only between fields of the same farm. And this thing is bolted in the back of his pickup truck. If he takes his pickup truck to the hardware store or to church with gasoline in the back, he has got to have a 24-hour emergency phone number, and that is the kind of incredible things that are going on out there with respect to the lack of understanding of how the farming activities are in Illinois.
    I guess those specification packagings we can only have until the Year 2000, in which the U.S. DLT will say that those gas tanks in the back of the farmers' pickup trucks will no longer be allowed.
    Mr. EWING. Well, as a final question to all of you, just to wrap this up, is there anything that you would like to add from sitting through the prior testimony that you have heard here today that you think would be important for us to know about the actual operation and the exception that we had in Illinois that would be meaningful to our deliberations?
    Mr. WORT. Well, the one thing is—and we have already testified to—Illinois required the continuation of the required packaging. We think that is the key to this exception because RSPA has determined what an approved package for every product is. So we figure if it is good enough to transport it coast to coast, then let us keep it when it gets right to the very use on the field.
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    The marking and labeling which is on those approved packages we feel communicates the proper messages to any responder, whether it be the patrolman that might be first on the scene, as somebody attested to, or whether it be the fireman, a volunteer or municipal-hired fireman. So we feel those two things are extremely important. We think maybe that has been lost sight of by some other folks that have testified here today.
    Ms. TROBEC. I will just say, Tom, that understand, please, it is retail-to-farm, farm-to-farm movements. We do not park trucks of chemicals behind Dairy Queen and not placard them. And I understand the concerns of the fire fighters. I truly do. But, unfortunately, none of the incidents that they really talk about are retail ag incidents. The Kansas City incident, with the unplacarded ammonium nitrate, was not retail ag transportation. What Timothy McVeigh did in Oklahoma City was not retail ag transportation. ValuJet was not retail ag transportation.     There has been so much emotionalism about what we are asking for, and it really is a very unemotional issue. It is very cut and dried. It is very easy to explain, and that is why we really struggle with why it has gotten so blown out of proportion. And, again, if a State doesn't want to do it, a State does not have to ask for exceptions.
    Mr. EWING. Thank you.
    Mr. Wallace, did you——
    Mr. WALLACE. Yes. The one thing that we want to make clear in our proposal, and hopefully you all understand, is the same thing. We are not looking to put people in danger. We have got a safe history for over 30 years in this industry. We are providing alternate signage. Our problem is with the placards that were required. There is a long chain of events that follows along with the placard. We feel our alternate signage is sufficient to convey the message.
    And, more importantly, or as importantly, the first responders on the site are not going to be the fire department. They may be the first ones working on it, but they are usually not the ones reporting the accident. Somebody else has to respond to the accident and report it. They don't know what they are reporting in that accident based on what the placard says. Our alternate signage tells everybody exactly what is on the truck, and the emergency responders in their emergency response guidebooks can cross-reference those chemicals in numerous different ways. So if we had our UN–1017 number on the placard, they can access it that way. They can access it by the product name that would be on the side of the trucks as well. So we are providing that as an additional step.
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    Mr. FRANKS. I hate to interrupt. I am going to recess the hearing. I am going to come back to close the hearing and take any further questions.
    [Recess.]
    Mr. FRANKS. Well, we reconvened, but what you see is what you are going to get. We are it.
    [Laughter.]
    Mr. FRANKS. Mr. Ewing, do you have any further questions? I have got a couple.
    Mr. EWING. Why don't you go ahead.
    Mr. FRANKS. Mr. Wort, if I may, understanding people's sentiments on this subcommittee, there is a diversity of opinion that exists on this issue, as you can probably conclude. I am wondering if there is any way to address the legitimate concerns of the agricultural community in this discussion without a full-scale exemption. Have you talked to the DOT? Is there any other opportunity to work this out rather than dropping it on the subcommittee to try to come to our conclusion?
    Mr. WORT. Well, in all honesty, sir, I don't know.     As you know, we submitted comments to the docket for HM–200. Some of those were accepted and some weren't. We haven't petitioned for a reconsideration nor have we had, I guess, informal talks with RSPA to see if they are willing to relook at this issue on a limited-quantity basis.
    Ms. TROBEC. On behalf of the ag retailers, we have submitted an application for exemption through the Exemption Approvals Branch. I have not heard word back on it. I am not extremely hopeful, but we have petitioned for reconsideration. We have done just about everything that we can do, and maybe by some grace of God, it will be granted.     But most exemptions are for a specific company, a specific product. And when you are looking at the ag industry, farmers, retailers, it is hard to petition for an exemption through that branch when you are looking at that broad of a scope.
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    Mr. FRANKS. Ms. Trobec, for clarification, are you requesting exemption from the entire hazmat regulatory scheme or just specific regulations?
    Ms. TROBEC. Shipping papers, I believe, which is Subpart C—I can look it up—and placarding, which I believe is Subpart F.
    Mr. FRANKS. If this subcommittee granted an exemption for you in those two regards, what would the industry do to replace those safeguards with your own industry activities or concerns for public safety that folks may still harbor?
    Ms. TROBEC. Most of the volunteer fire departments, and even some organized fire departments, you know, really rely on the ag community for their training. I was discouraged to hear about an example where that was not provided. In my opinion, that ag retailer has not done his job in that State.
    That is definitely not the case in Illinois, and I think you could ask a lot of volunteer fire fighters, who are farmers, who are employees of ag retail sites, what would they do without ag retail people to explain these things? We have training classes on Saturdays throughout the year. That is not something we ever intend to let up on. We probably would even, if we had some kind of new language, we would redouble our efforts in that aspect and work with Illinois DOT and work with the state police like we have always done. It is a cooperative effort not just on behalf of us, but also on the enforcement agencies.
    Mr. FRANKS. Are the safety programs, these training programs that you offer——
    Ms. TROBEC. Yes.
    Mr. FRANKS. —certified by any outside agency? I don't mean in terms of allowing you to do it or not, but is the content of the safety instructions that are a part of the courses you currently offer certified by any outside safety group?
    Ms. TROBEC. Well, our employees are subject to the training requirements in 49 CFR. But as far as the fire department is concerned, most of them are certified or at least recognized by the chemical manufacturers, the fertilizer manufacturers. Some of the programs actually come from the manufacturers on safe storage handling and transportation of ag chemicals. They don't have any Government stamp of approval on them, just because we have always found it is more efficient to do our own programs.
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    Mr. FRANKS. Is this industry protocol that you refer to in writing? Has it, in turn, been developed by scientific experts?
    Ms. TROBEC. Well——
    Mr. FRANKS. Here is my concern, Ms. Trobec, candidly: If we grant a full-scale exemption, we have to tell the people who live near your farmer clients that all reasonable precautions are being taken. Now, you could argue that we don't need any activity on the part of the Federal Government to give them such an assurance. But just humor me for a moment.
    Ms. TROBEC. OK.
    Mr. FRANKS. What more could we tell them?
    Ms. TROBEC. We do a lot of right-to-know communication. I mean, we are required to do right-to-know communication. As far as that is concerned, I think most of the efforts would probably, Mr. Franks, still be voluntary, still be because you are a good citizen, still be because you are a legitimate business who has got a key interest in that community.
    If it would be the will of the committee, we could create a certified training program for fire departments. I don't think there would be any reluctance in our industry to do that. People would be happy to do it. In fact, a lot of ag retailers who are extremely small and maybe don't have the resources as the larger ones would love
to have a program that they can pull off the shelf and go sit down with their local fire chief about. I mean, we are more than willing to do that.
    Mr. FRANKS. Let me merely conclude by observing to my friend, Tom Ewing, that I would be happy to work with you to see if we can conjure something that will, perhaps, limit opposition, might buy-in more folks on this subcommittee, as well as the full committee, as well as the floor.
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    I want to be clear. I don't have a dog in this fight. I have five farmers—five in my entire district. I am not part of a major agricultural community. So whatever you guys want to do is fine with me. But I am talking about what will pass here and what, in turn, more importantly, will protect the public's health, safety and their confidence that the institutions of the Government have taken reasonable precautions to protect their safety. So I would make myself available for that.
    On that, I will turn it over to Mr. Ewing.
    Mr. EWING. Thank you, again, Mr. Chairman.
    I am talking about the placarding right now. Are there any contents that a farmer would be taking to the field or you would be delivering to the farmer that would not be observable by looking at the container?
    Ms. TROBEC. Well, in a field-mix situation where you essentially have a 3,000-gallon stainless steel nurse truck that is going out to nurse the applicational equipment, it could have a mix of Round-Up fertilizer, ferritin [ph.], bisep [ph.], bucktrill. I mean, there is an infinite number of concoctions that could be in that tank and, no, you can't tell what is in there. But for the most part, it is diluted with either water or 28 percent nitrogen fertilizer and, in our opinion, would not meet any of the criteria of a hazardous material. However, we are still required by this to make a judgment whether that is true or not and, Tom, that is the only container that I could envision that it wouldn't be clearly marked. However, it is a very diluted-strength mixture.
    Mr. EWING. The requirements of placarding require you to put what is in that or that it is just hazardous material?
    Ms. TROBEC. It would be whether if it was classified—for example, Lorisban is a poison, a poison placard would be required. If it was a combustible liquid like bucktrill, combustible liquid placard. There's keep- away-from-food placards, flammable placards, Class 9 placards. On the shipping papers, it pretty much says what class it is, so you would have to determine each class of that mixture and then apply for the appropriate package because it is a bulk package.
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    Mr. EWING. And your placards you can't have a general placard on that tank.
    Ms. TROBEC. In some instances, a dangerous placard can be used, but not in that instance.
    Mr. EWING. So that might be one exception that would be helpful if it could just have a dangerous——
    Ms. TROBEC. Or maybe just say ''pesticides'' or something novel like that. And, again, I want to reiterate, placarding kicks in at a thousand pounds, so there will be things that go to the farm that will not be placarded that are still DOT-regulated chemicals. It is just when you hit the thousand-pound threshold is when it kicks in.
    Mr. EWING. What I was kind of trying to think with you here is that, in some ways, the placarding is redundant when it is already on the package.
    Ms. TROBEC. Yes, and when the packages are clearly visible.
    Mr. EWING. Right. And the shipping papers I am not sure why do they—maybe Mr. Wort can tell me—what is the benefit from the shipping papers, as far as the safety?
    Mr. WORT. Well, from an emergency response standpoint, I think the benefit there is that, again, you have to realize what they were developed for. They were developed for the interstate transportation of large loads, where you may have four or five or six different products in varying amounts on this particular tractor-trailer that is going on across the country. So the benefit of the shipping paper is to let that emergency responder look down and say, ''OK. We have got a flammable, we have got an oxidizer, we have got this, we have got this, we have got this,'' and here is how much we have got on there. So that is the prime benefit of the shipping paper.
    Mr. EWING. Do they have to keep the shipping paper in a safe and secure place, so that if there is an accident, they can be sure and retrieve it and look at it? I mean, I understand, but if you have got a shipping paper in a tanker that is ablaze, I don't know if anybody is going in there to look for it.
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    Mr. WORT. Well, you are probably right about that.
    But, basically, the requirement is to keep the shipping paper in a pocket on the driver's door. So that way responders know where to look for it, which might require some of the farmers to put pockets on their driver's doors.
    Mr. EWING. Just one final question, and I think the Chairman has alluded to it, an opportunity that we might have to work with him and the committee to specifically see what ways we could address this to meet the needs of the greatest number of people and also provide the least intrusion and maybe unproductive regulatory enforcement.
    Ms. TROBEC. Tom, if I may. One of the things that we offered as a possible alternative is that when a farmer picks up a load, he gets a load-out ticket essentially saying you just picked up Lorisban, bucktrill and bisep, and he gets that to take home for his recordkeeping. So right there he has already got something that has the common name of the product in the cab of his truck. Everybody in the farm community knows they are pesticides or herbicides. And we have offered to provide that information to the farmer, as well as a copy of the emergency response guidebook that has the look-up tables for the ID numbers that are already marked on the packages in the back of the pickup truck, and I think those are things that we would be more than happy to do, and I think will contribute to information for emergency responders without unduly burdening farming and ag retailers.
    Mr. EWING. Thank you. And thank you for coming.
    Mr. FRANKS. Let me, if I might, reiterate my offer to try to be of any assistance that I might be able to. But I need to hear from all of you on one count because it underlies a concern that I think is legitimate and permeates the committee.
    Understanding that we don't have any reportable accidents, understanding that if you look at your history of management of this element of the program or you are released from certain requirements and you say there are no reportable incidents, do you agree that the improper handling and transport of these materials can lead to serious injury and/or death?
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    Mr. WORT. Sure.
    Ms. TROBEC. Anybody who willfully does not comply with regulations goes over the limitations of the Illinois ag exception, says he is taking it to the farm, but instead takes it to the hardware store in town, is in violation and should be prosecuted for that violation.
    Mr. WALLACE. If I might answer that, too. In our particular case with specifically dealing with essentially one product that we have to placard for and the major concern of everybody is the chlorine gas, the way that our product is packaged in the 20-pound DOT cylinders is very, very safe. To have a tremendous exposure, if we had a one-time release out of one cylinder, you have a 20-pound release, and in the study that is being submitted for the record, it addresses that worst-case scenario, a spontaneous, one-time, 20-pound release, which is the most reasonable worst-case scenario. It is unreasonable to suspect that in one accident you are going to have four or five or six of those cylinders all have a rupture.
    But the circumstances to result in a death from this product, because it is susceptible to air motion and dissipates in that manner, it would be very difficult for me to envision from one 20-pound release that that could happen. I am not going to say that it is not possible; you know, if the driver was trapped in the vehicle and totally worst-case, it is possible, but you almost have to be in a closed environment to sustain the parts per million of chlorine exposure for a long enough period of time for that to occur. So it would be very difficult.
    Mr. FRANKS. I am just curious, Mr. Wallace, do any of your vehicles ever carry more than this one 20-pound canister?
    Mr. WALLACE. Yes. The trucks usually carry approximately 150 pounds of product in six cylinders.
    Mr. FRANKS. But under your worst-case scenario only one canister?
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    Mr. WALLACE. Well, according to the study that was done by the National Academy of Sciences' former Chairman, he determined that that was the most realistic worst-case scenario for a one-cylinder spontaneous release. If you had six of them spontaneously release at the same time, your parts per million would be a little bit great, obviously, but your dissipation rate would be along the same lines, just on a graduated descending scale.
    But we were down, on a 20-pound release, to like five minutes at a thousand feet, I believe, is what it was—but it is all very detailed in there—to be back down there to a zero part per million atmospheric concentration of chlorine, and the IDLH for chlorine is, I believe, 30 parts per million for 30 minutes. So it is out there.
    Mr. FRANKS. Just for the record, one other point, and, Ms. Trobec, maybe you can help me with this. If a retailer, one of your members, conducts any interstate business activity, they currently must comply with all loads that emanate from their business?
    Ms. TROBEC. That is correct. The big difference is that when we conduct ag retail shipments across State lines or to another one of our facilities, we have time to sit down and evaluate that load, and get our book and make sure that we are in compliance. When it is May 1st, and it is warm and it is sunny, and you have got 150 farmers coming to your location who want everything five minutes ago, it is extremely, extremely difficult to make sure that you give them the proper shipping paper, you have placarded their truck properly, you have identified that that is——
    Mr. FRANKS. For the intrastate portion of your business.
    Ms. TROBEC. Yes, for the intrastate. But interstate movements are subject to all of the regulations.
    Mr. FRANKS. Mr. Ewing?
    Mr. EWING. No questions.
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    Mr. FRANKS. Ladies and gentlemen, thank you. Very helpful. Thanks. The hearing is adjourned.
    [Whereupon, at 2:27 p.m., the subcommittee was adjourned.]

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