RECEIVED 

JUN 2 3 2015 

u.s. DEPARTMENT OF TRANSPORTATIONHEARING DOCKET 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

v. } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Goodwin 

MEMORANDUM IN SUPPORT OF 

MOTIONS TO DISMISS COMPLAINT 

FOR INSUFFICIENCY AND FOR 

COMPLAINANT'S VIOLATION OF RULE 208 

Respondent Fisher Scientific Company, LLC, a subsidiary of Thermo Fisher Scientific, Inc., 

(hereinafter referred to as "Fisher") moves to dismiss the Complaint in the above-captioned civil 

penalty proceeding on the following two independent grounds. First, the Complaint fails to state 

a "knowing" violation for which a civil penalty may be imposed. Second, by including 

allegations that were fust made more than three years after the alleged incident, the Complaint 

violates Rule 208(d) of the Federal Aviation Administration's (hereinafter "FAA's" or "the 

Agency's") Rules of Practice ("Rules"). 

FAA's Southern Regional Counsel ("Regional Counsel," "the Government" or "Complainant") 

makes, among others, two allegations concerning acts Fisher allegedly committed almost four 

years ago, on July 20, 2011, when Fisher shipped a single liter of a corrosive liquid commonly 

known as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a 

shipment ... containing hazardous materials for transportation by air." Compl. ~ 1. Second, 

Regional Counsel claims Respondent "violated the ... hazardous materials regulations" 

("HMRs") because it "failed to ensure that [the bottle of lye was] ... packaged with absorbent 

materials .... " Compl. ~ lO.c. 
Memorandum in Support of Respondent's Motions to Dismiss 

Memorandum in Support ofMo_tiQn to Dismiss for Insufficiency 

A provision in the Hazardous Materials Transportation Act ("HMTA"), Pub. Law No. 93-633, 

88 Stat. 2156,2160 (Jan. 3, 1975), codified as amended at49 U.S.C. § 5123(a)(1) (2011), allows 

the Government to impose a civil penalty upon a "person who knowingly committed an act which 

is a violation of" the HMRs (emphasis supplied). A later recodification made a non-substantive, 

editorial change. It reworded the sentence to say the Government may impose a civil penalty on 

a "person that knowingly violates" the HMRs. Nowhere in the Complaint does Regional 

Counsel allege that Fisher "knowingly" committed any act which is a violation of any HMR. It 

merely states that Respondent "knowingly offered" a declared shipment of hazardous materials. 

There are other, more specific allegations in the Complaint, but none of them allege a "knowing" 

violation. In the example referenced above, Regional Counsel claims Respondent "violated" 49 

C.P.R. § 173.27(e), but there is no allegation that Fisher "knowingly" committed any act which 

violates it. This particular HMR applies certain packaging requirements to some hazardous 

materials shipments but not to others. In this case, the bottle of lye was a "limited quantity" 

shipment that was exempt from the specification packaging requirements and otherwise fully 

complied with all applicable HMRs. However, even if one were to assume that§ 173.27(e) did 

apply to the shipment when Fisher offered it in 2011 and that Fisher failed in some respect to 

comply with it or any other HMR, the civil penalty statute, as amended by the Hazardous 

Materials Transportation Uniform Safety Act of1990 ("HMTUSA"), Pub. L. No., 101-615, 104 

Stat. 3244, 3259 (Nov. 16, 1990), codified at 49 U.S.C. § 5123(a)(1)(A) and (B) (2011), 

unquestionably requires the Agency to allege and prove that Fisher "knowingly committed an act 

which is a violation of' that or some other HMR. 

During two Informal Conferences, Respondent noted Regional Counsel's failure to make any 

allegation that would justifY imposition of a civil penalty and objected in writing almost a year 

before Regional Counsel filed the Complaint. (Letter from J.W. Cox to W.P. Vines, Aug. 18, 

2014) (Exhibit 2). Regional Counsel replied three months later with a letter that cites an 

inapplicable statutory provision, 49 U.S.C. § 5123(c), and relies on an Initial Decision that is 

inapposite, was reversed and that did not involve the issues presented in the instant case. (Letter 

from W.P. Vines to J.W. Cox, Nov. 20, 2014) (Exhibit 3) 

Regional Counsel grossly misinterprets the key provisions of both the HMTA and the HMTUSA. 

More specifically, Regional Counsel expresses the mistaken conclusion that "FAA need only 

prove ... that an offeror knowingly offered ... a hazardous material- not that the offeror 

knowingly offered ... [a shipment] that was in violation of the hazardous materials regulations." 

Regional Counsel argues, essentially, that hazardous materials shippers are strictly liable for any 

departure from even the most indecipherably technical and poorly worded requirement that may 

appear in the 1,100-plus pages ofHMRs, 49 C.F.R Parts 171-185. To the contrary, the HMTA 

2 
Memorandum in Support of Respondent's Motions to Dismiss 

unambiguously provides that only a "person who knowingly committed an act which is a 

violation of ... a regulation is liable ... for a civil penalty." 88 Stat. 2160. Contrary to Regional 

Counsel's interpretation, the laws do not impose liability on any person who "knowingly offered 

... a hazardous material." Moreover, there is no strict liability for violating the HMRs ~i.e., that 

the Government must allege and prove the degree of legal scienter Congress established in the 

law. In order to show that a "person acted knowingly," the Government must prove the person 

had "actual knowledge of the facts giving rise to the violation," 49 U.S.C. § 5123(a)(l)(A) or 

that "a reasonable person ... exercising reasonable care" would have "such [actual] knowledge 

[of the facts giving rise to the violation.]" !d. § 5123(a)(1)(B). 

Regional Counsel's letter seems barely to acknowledge the presence of the term "knowingly" by 

interpreting the scienter requirement to mean that a person is liable if he had or should have had 

knowledge of any fact on which FAA bases part of its argument that he violated the HMRs. To 

the contrary, the civil penalty provision can be read only to require the Government to show that 

Respondent knew or should have known whatever facts would be essential for the actor to 

determine whether his act was compliant. 

The correct way to interpret Congress' use of the term "knowingly" in a civil or criminal penalty 

statute is well-established. According to the U.S. Supreme Court, the question is a matter of 

ordinary English grammar. "Knowingly" is naturally read as applying to all the listed elements 

of an offense, even if to do so may pose some practical enforcement problems. Flores-Figueroa 

v. US., 556 U.S. 646, 650 (May 4, 2009). What the Government must do in this case, therefore, 

is clear. The Agency must show Respondent either knew it committed an act which is a 

violation the HMRs or that it would have known that act violated the HMRs had it exercised 

reasonable care in following the regulations governing how the subject shipment of lye was to be 

packaged. 

Even if the civil penalty provision could not, by applying the normal rules of English grammar, 

be read to require FAA to allege and prove that Respondent committed some negligent act, 

Congress went out if its way, in both the HMTA in 1974 and the HMTUSA in 1990, to leave no 

doubt that its intent was to establish and maintain a scienter requirement. Congress required the 

Government, at a minimum, to prove some act of at least simple negligence before it could 

impose a civil penalty for violating the HMRs. 

The scienter requirement has existed from the day§ llO(a)(l) of the HMTA became law. It 

provided~ and continues to provide today, despite a non-substantive editorial change during recodification ~that "[a]ny person ... who ... knowingly committed an act which is a violation of 

a provision of [the HMRs] ... shall be liable ... for a civil penalty." 88 Stat. at 2160. From the 

beginning, U.S. Department of Transportation enforcement agencies, including FAA, 

"interpreted the term 'knowingly' to mean that a person knew or in the exercise of reasonable 

3 
Memorandum in Support of Respondent's Motions to Dismiss 

care, should have known, of the facts constituting a violation." However, in 1986, a federal 

judge ruled that the term required the Govermnent to prove that a respondent acted with at least 

"reckless disregard" for the HMRs. Hazardous Materials Transportation, Hearing Before the 

Subcommittee on Surface Transportation of the Committee on Commerce, Science and 

Transportation, S. Hrg. No. 101-955 (July 25, 1990), Statement by Sen. Danforth, referring to 

Southern Railway Company v. Riley, No. 84-1990A (N.D. Ga., Oct. 10, 1986), aff'd, 835 F.2d 

1439 (11th Cir., 1987) (Exhibit 4), at 5-6. 

Soon after the Southern Railway decision was summarily affirmed, Congress began to consider 

amendments to reduce the level of culpability the Govermnent was required to establish in order 

to impose a civil penalty for a hazardous materials violation. One approach, championed in the 

U.S. Senate by Sen. John C. Danforth (R-MO), was to eliminate the scienter requirement 

altogether by deleting the word "knowingly" from§ 110(a)(1) of the HMTA. The Danforth 

Amendment would have made a person strictly liable for a civil penalty if he "committed an act 

which is a violation of a provision" of the HMRs. The Senate Commerce Committee and the full 

Senate approved the Danforth amendment as part of a bill called the Hazardous Materials Safety 

Improvement Act of 1990 ("HMSIA"). See Report of the Senate Committee on Commerce, 

Science and Transportation on S. 2936, S. Rep. No. 101-449 (Aug. 30, 1990) (Exhibit 5) at 38 

and Senate consideration and passage of the HMSIA, 136 Cong. Rec. 33328, 33330, 33335-36 

(Oct. 23, 1990) (Exhibit 6). 

When the U.S. House of Representatives took up its own legislation, the HMTUSA, two House 

committees unanimously rejected the Danforth Amendment. The House was aware of the 

controversy over the Southern Railway decision and Sen. Danforth's effort to establish strict 

liability for committing an act that violated the HMRs. After hearing testimony that the 

"imposition of penalties ... for unknowing and unavoidable violations of the law is contrary to 

our concepts of law and equity ... [and that it is J inconsistent with out basic legal and equitable 

concepts and standards ... [to impose] civil penalties for offenses ... [people] may be powerless 

to avoid," Hearing on Transportation of Hazardous Materials Before the House Committee on 

Pubic Works and Transportation, H. R. Hrg. No. 101-52 (July 13, 1989) at 1661-62, House 

sponsors made clear their detennination to reject the Senate's strict liability approach and 

maintain a scienter requirement. 

The HMTUSA was reported out of committee with the following, crucial explanation of its new 

definition of "knowingly." "[T]he Committee intends to cover violations that are committed 

negligently (as well as violations which are committed by persons who have actual knowledge). 

The definition of 'knowingly' is intended to negate any inference that the term only encompasses 

actions based on actual knowledge or reckless actions ... [contrary to the holding in Southern 

Railway]. Under [H.R. 3520's] ... definition of 'knowingly,' [DOT] ... will be able to seek civil 

penalties for actions or omissions that are committed negligently as well as those which are 

4 
Memorandum in Support of Respondent's Motions to Dismiss 

committed with actual knowledge ... in violation of the [hazardous materials] ... regulations .... " 

H.R. Rep. No. 101-444, Part 1 (Apr. 3, 1990) at 46-47. (Exhibit 1) 

The full House passed the Committee-approved legislation. Rather than imposing strict liability 

when a person "committed an act which is a violation," the House retained the term "knowingly" 

and the scienter requirement established in§ llO(a)(l) of the HMTA. The House also approved 

the new language to defme "knowingly" not to mean what the court declared in Southern 

Railway ("reckless disregard") but to mean "actual knowledge" that a person either had or- by 

"exercising due care"- would have had. House consideration and passage of the HMTUSA, 136 

Cong. Rec. 34168,34181 (Oct. 25, 1990) (Exhibit 7) 

Ultimately, the Senate did not pass HMSIA with the Danforth strict liability amendment; instead, 

it passed the House bill, the HMTUSA, with its tweak on the scienter requirement. Senate 

consideration and passage of the HMTUSA, 136 Cong. Rec. 35772, 35776 (Oct. 26, 1990) 

(Exhibit 8). The President promptly signed the House bill- and the modified defmition of 

"knowingly"- into law, 104 Stat. 3244, 3259 (Nov. 16, 1990). 

Accordingly, because the Complaint fails to allege, at a minimum, that Respondent committed 

some act of negligence, it does not state a violation of the federal hazardous materials 

transportation statute or regulations and must be dismissed for insufficiency pursuant to Rule 

218, 14 C.P.R.§ 13.218(£)(1). 

Memorandum in Support ofMoti()!ltoDislllissJOJ:Ass~rtinga__{;;l[liipAbout Which the 

Govermnent Failed to Give Timely Notice 

As noted above, Regional Counsel claims Respondent "violated the ... hazardous materials 

regulations" in part because it "failed to ensure that [the bottle of lye was] ... packaged with 

absorbent materials .... " The HMRs imposed no such requirement on the shipment at issue in 

this case, but even if one were to assume that there was a requirement for packaging a limited 

quantity oflye with absorbent materials, Regional Counsel was obligated to give timely notice 

that the Govermnent plarmed to base its Complaint on that claim. Instead, Regional Counsel 

withheld this allegation and gave Respondent no notice that it intended to raise it until FAA 

served an Amended Notice of Proposed Civil Penalty ("the Amended Notice") dated July 24, 

2014. Amended Notice-,[ f. This was the first Notice asserting this claim, and it was served not 

within two years, as required, but more than three years after the alleged incident occurred. 

Rule 208( d)(2) ofF AA' s Rules provides, in pertinent part, that the judge "may dismiss the 

complaint or that part of the complaint alleging a violation that occurred more than two years 

before an agency attorney issued the notice of proposed civil penalty" to the respondent "[i]fthe 

agency fails to show good cause for any delay .... " (Emphasis supplied.) 

5 
Memorandum in Support of Respondent's Motions to Dismiss 

Certain basic facts surrounding the alleged July 20, 2011, incident and how Fisher packaged the 

shipment were established within days. The agency delayed almost two full years- until after 

July 3, 2013- to serve a Notice of Proposed Civil Penalty ("the Notice"). During an Informal 

Conference, counsel for Respondent pointed out to Regional Counsel that the Notice was ex post 

facto, based almost entirely on HMRs that were not in effect in July, 2011. The Notice contained 

no allegation whatsoever that Respondent was obligated to include "absorbent materials" or that 

Fisher failed to do so when it packaged the lye. In fact, the 2013 Notice did not even mention 

"absorbent materials." 

The Complaint nevertheless includes allegations that first appeared in the Agency's July 24, 

2014, Amended Notice. When Respondent promptly objected to Regional Counsel "springing" 

this completely new allegation in the Amended Notice and FAA's necessary reliance on it to 

support other claims against Respondent (Exhibit 2), Regional Counsel offered not one word 

explanation or excuse in response to Respondent's objection that the allegation was out-of-time 

(Exhibit 3). 

There is, in fact, no conceivable excuse or other good cause for Regional Counsel to keep 

Respondent in the dark about the Agency's intended allegations for more than three years. To 

reward Regional Counsel's failure to give timely notice by allowing this case to proceed would 

defeat the purpose of Rule 208, grossly prejudice Respondent's opportunity to defend itself and 

constitute a denial of Respondent's due process rights under the U.S. Constitution. 

WHEREFORE, Respondent respectfully moves to dismiss the Complaint on the following two 

independent grounds: first, for insufficiency pursuantto Rule 218, 14 C.F.R. § 13.218(f)(1); 

and, second, to dismiss the Complaint for violating Rule 208 pursuant to 14 C.F.R. § 13.208(d). 

Even if the Complaint is not dismissed outright on either of the above grounds, that portion of 

the Complaint alleging a failure by Respondent to include "absorbent materials" in the packaging 

for the subject materials (i.e., all of Complaint '1[10.c.) should be stricken, as alternatively 

provided in Rule 208( d). 

Dated: June 23, 2015 

,Esq. 

ws Rd., Suite 401 

Vienna, VA 22180 

(email) jcox(a]potomacstrategyass,ocJ<ltcs 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

6 
CERTIFICATE OF SERVICE 

On June 23,2015, the undersigned sent by air courier one copy of the foregoing Memorandum in 

Support of Motions to Dismiss Complaint for Insufficiency and for Claimant's Violation of Rule 

208 to each of the persons listed below. 

[One Copy] 

William Vines, Esq. 

Regional Counsel, ASO-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

1701 Columbia Ave. 

College Park, GA 30337 

[One Copy] 

The Ron. Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (Ell-310) 

Washington, DC 20590 

[Original and One Copy] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2W1000 

600 Independence Ave., S.W. 

Washington, DC 20591 
Exhibit 1 
101ST CoNGRESS } { REPT. 101-444 2d Session HOUSE OF REPRESENTATIVES . Part 1 

HAZARDOUS MATERIALS TRANSPORTATION ACT 

UNIFORM SAFETY AMENDMENTS ACT OF 1990 

APRIL 3, 1990.-Drdered to be printed 

Mr. DINGELL, from the Committee on Energy and Commerce, 

submitted the following 

REPORT 

[To accompany H.R. 3520 which on October 25, 1989, was referred jointly to the 

Committee on Energy and Commerce and the Committee on Public Works and 

Transportation] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 3520) to amend the Hazardous Materials Transportation Act to authorize appropriations for fiscal years 1990 and 1991, 

to provide for greater consistency in laws and regulations governing the transportation of hazardous materials in intrastate, interstate, and foreign commerce, and for other purposes, having considered the same, reports favorably thereon with an amendment and 

recommends that the bill as amended do pass. 

CONTENTS 

The Amendment .............................................................................................................. . Purpm;e and Summary .................................................................................................. .. Background and Need for the Legislation ................................................................. . The Hazardous Materials Transportation Act ................................................. .. Federal Framework ............................................................................................... .. Selected Major Issues ........................................................ , ................................... .. A. Relationship of Federal and Non-Federal Laws .................................. .. B. The GAO Report ......................................................................................... . C. Emergency Response .................................................................................. . Hearings ........................................................................................................................... . Committee Consideration .............................................................................................. . Committee Oversight Findings .................................................................................... .. Committee on Government Operations ...................................................................... . Committee Cost Estimate .............................................................................................. . Congressional Budget Office Estimate ........................................................................ . Inflationary Impact Statement .................................................................................... . Section-by-Section Analysis .......................................................................................... .. 

39-006 

Page 

1 

17 

18 

18 

19 

20 

20 

22 

23 

26 

27 

28 

28 

28 

28 

30 

30 
46 

SECTION 11. EXEMPTIONS 

Section 107(a) of the HMTA currently authorizes the Secretary to 

issue or renew exemptions from the provisions of the HMTA and 

from regulations issued thereunder. This section clarifies that the 

Secretary's authority to issue such .. exemptions will e~tend to provisions of the HMTA, as well as any rule, regulatiOn, order, or 

standard issued" under the HMTA. This amendment is designed to 

cover the full range of potential statutory, regulatory, and administrative actions the Secretary may take and from which exemptions 

may be issued or renewed. 

SECTION 12. SECRETARY'S POWERS 

Section 109(d)(l)(C) of the HMTA currently provides that the Secretary shall conduct a continuing review of all aspects of hazardous 

materials transportation in order to determine "and to be able to 

recommend appropriate steps to assure the safe transportation of 

hazardous materials." Section 12 of the bill deletes the term "recommend" and replaces it with the term "take". This provision is 

intended to provide consistency with the broad powers granted to 

the Secretary under the HMT A by placing an affrrmative duty on 

the Secretary to review all aspects of hazardous materials transportation and "to take appropriate steps" to ensure safety. The 

amendment also removes the current uncertainty as to whom the 

Secretary is to "recommend" appropriate steps. 

SECTION 13. PENALTIES 

Currently, under section 110 of the HMTA, the Secretary may 

impose civil penalties against persons who "knowingly" commit 

acts in violation of the HMTA or regulations issued thereunder. 

Section 13 of the bill enhances and clarifies the Secretary's authority to impose civil penalties by amending section 110 of the HMTA 

to provide that knowing violations of the HMTA, or of an order of 

or regulations issued by the secretary, will constitute the basis for 

imposition of civil penalties. While the Secretary is authorized, 

under section 109 of the HMTA, to issue orders directing compliance with the HMTA or regulations issued thereunder, the Secretary's only available avenue to enforce such orders is to commence 

a lawsuit. The Committee believes that enforcement via time-consuming and costly judicial action is burdensome and contrary to 

the purposes of the HMTA. The amendment to section 110 thus 

will allow the Secretary to assess civil penalties against persons 

who knowingly violate the provisions of the HMTA, or orders or 

regulations issued thereunder, while preserving the Secretary's 

ability to enforce such violations through the courts. This change is 

consistent with provisions of both the Natural Gas Pipeline Safety 

Act of 1968 and the Hazardous Liquid Pipeline Safety Act of 1979. 

Section llO(b) of the HMTA, as amended by the bill, makes a 

parallel change with respect to criminal penalties. Currently only 

persons who willfully violate a provision of the HMTA or r~gula­ tions issued thereunder are subject to criminal penalties. The bill 

expands the applicability of criminal penalties to include willful 

violations of orders issued by the Secretary under the HMTA. 
47 

Currently, civil penalties of not more than $10,000 for each violation may be assessed for violations. For continuing offenses, each 

day of violation constitutes a separate offense. This maximum has 

not been amended since the HMTA's original enactment 15 years 

ago. Additionally, no minimum civil penalties are currently set 

forth in the statute. Section 13 amends section 110 of the HMTA by 

providing for a minimum civil penalty of $250 per violation and by 

increasing the maximum civil penalty from $10,000 to $25,000 per 

violation. 

Section 13 also defmes the work "knowingly" to mean that (1) a 

person has actual knowledge of the factS gJ.vmg nse tO the VIolation; or (2) a reasonable person acting in the circumstances, exercising due care, woUld have such kiiowJ.ed~ Currently, the term is 

not defmed in the HMTA. By including t provision, the Committee intends to cover violations that are committed ne~it;[ently (as 

well as violations which are committed by persons who ave actual 

knowledge). 

The definition of "knowingly'' is intended to negate any inference that the term onl~ encompasses actions based on actual _]mowfu4ge~ or"rec!des~ aP.~!~~ For example, m a deciSIOn rendered 

bYthe Umtea States -nlStrict Court for the Northern District of 

Georgia in Southern Railway Company v. Riley, No. C84-1990A 

(N.D. Ga. Oct. 10, 1986), the court held that the Secretary must 

prove "willful negligence" rather than mere negligence in proving 

that a person knowingly violated the HMTA. The court described 

"willful negligence" as a "reckless disregard for the probable consequences of a voluntary act or omission." The Committee believes 

this decision is contrary to the intent of the HMTA and blurs the 

distinction between knowing violations (for which civil penalties 

lie) and willful violations (for which criminal penalties lie). Under · ' · · "knowin 1 " the Secretar will be able tO 

§eek civil penalties for actions or omissions t at are comm1 'E--

negli~ently, as well as those which are committed with actual 

know edge, in violation of the HMTA, or orders or regulations 

issued thereunder. The Committee believes this will enhance the 

Secretary's ability to enforce unsafe practices while providing the 

necessary incentive to persons involved in hazardous materials 

transportation to comply with applicable regulations and orders. 

Finally, this section provides that willful violations of the 

HMTA, or orders or regulations issued thereunder, shall be punishable by fines as provided under title 18 of the United States Code, 

or imprisonment for not more than 5 years, or both. Thus, under 

18 U .S.C. 3571, the maximum fine that may be imposed hereunder 

is not more than $250,000 for an individual and not more than 

$500,000 for an organization. Currently, section 110 of the HMTA 

provides for fines of not more than $25,000, imprisonment for a 

term not to exceed 5 years, or both. The bill thus conforms the 

HMTA's criminal penalties to those applicable under most other 

criminal penalty statutes. 

SECTION 14. RELATIONSHIP TO OTHER LAWS 

Section 112 of the HMTA currently provides that any require· 

ment of a State or political subdivision thereof that is "not consist-
Exhibit 2 
2729 Gallows Rd., Suite 401 

Vienna, VA 22108 

William P. Vines, Esq. 

Office of the Regional Counsel 

Federal Aviation Administration 

Southern Region 

P 0. Box 20636 

Atlanta, GA 30320 

August 18, 2014 

(voice) 703-n?-5866 

jtox@potomac.rtrategyas so&iates. tom 

by electronic mail 

Re: Thermo Fisher Scientific- Case No. 2011S0700457- Amended Notice of Proposed 

Civil Penaltv ("ANOPCP") (7-24-14)- Informal Conference 

Dear Will: 

Thank you again for convening the Informal Conference ("IC") on this matter on July 16, 2014. 

When it ended, I was hopeful that we had cleared at least some of the underbrush. I am sorry to 

see all of it is still there. 

During the IC, we reviewed in detail the following three specific allegations FAA made in an 

earlier Notice of Proposed Civil Penalty ("NOPCP"). I explained why each is based on nonexistent facts or non-applicable regulatory requirements. No one on the call from FAA offered a 

single word to dispute our conclusions. Rather than either dropping these allegations or offering 

some justification for them, FAA chose to serve an Amended Notice of Proposed Civil Penalty 

("ANOPCP"), dated July 24,2014. It repeats, nearly word-for-word, each of these indisputably 

baseless allegations. 

First, FAA alleged in 4!4! "6" and "e" of the NO PCP that Thermo Fisher Scientific, Inc. ("TFSI"), 

"failed to ensure friction type closures were ... held in place by positive means," but no friction 

type closures were used or required to be used in the subject shipment. I thought you agreed and 

withdrew any allegations of violations specifically related to such closures. I had the further 

impression that you recognized that the subject bottle was closed with a screw cap and there was 

no requirement to use "positive means" to secure screw caps at the time the subject shipment 

occurred. Nevertheless, you made exactly the same allegations in 4!4! "7" and "e" of the 

ANOPCP. If some justification for these statements has occurred to you since our conversation, 

it will be appropriate to re-address those subjects during the upcoming I C. 
Second, FAA alleged in~ "a" of the NOPCP that TFSI did not "properly class[ or] describeD" the 

hazardous material contained in the subject package. In fact, the package was properly declared 

and labeled as a "limited quantity" in full compliance with federal regulations applicable at the 

time of shipment. I understood you to say FAA never intended to allege any violation 

concerning the shipper's declaration for the subject package, yet you repeated the allegation in~ 

"a" of the ANOPCP . 

Third, FAA alleged in~~ "7" and "f' of the NO PCP that TFSI "failed to use a leakproof liner" 

There was no independent requirement to use a leakproof liner with the subject shipment. I 

thought you agreed with that, as well. 

FAA revealed during the July 16 IC that it had not produced investigative files to TFSI. You 

asserted that certain documents provide a factual basis for FAA's fourth allegation, in 'If "e," that 

it was the screw cap on the subject bottle that leaked and that the cause of such leakage was 

"loosening due to vibration or substantial change in temperature." While I am grateful to you for 

sending some portion of the investigative file, nothing in it remotely supports any conclusion 

about either the location or the cause of the reported leakage. During the upcoming IC, it would 

be helpful if you can explain what you see in there that we do not see. Would you also please 

identify what other portions of the file you have not yet provided and FAA's legal basis for 

continuing to withhold those materials? 

In any case, it likely will be impossible to reach definitive conclusions on several important facts 

without examining the bottle and other physical evidence of the events alleged in the Notice. 

TFSI therefore requests FAA to make those items available to us to inspect in advance of our 

upcoming IC. 

It was also disappointing to see FAA raise a completely new allegation in the ANOPCP -more 

than three years after the events described in the Notice. FAA now claims, in 'If "f' of the 

ANOPCP, that TFSI was required to include "absorbent material" in the subject packaging. It is 

grossly unfair for FAA to make up new claims after so much time has passed. In any case, there 

is no substantive merit to this belated allegation. We will explain why that is true during the 

upcoming IC. 

As was true with the earlier NO PCP, there are no specific allegations to support FAA's general 

statements, in 'lf'lf "a," "b," "c" and "d," that TFSI "failed to ensure" that the subject bottle was 

"packed ... closed ... or designed" to prevent leakage. To the contrary, TFSI exercised due care 

- in fact, went to extraordinary efforts -to ensure that the bottle was packed, closed and 

otherwise packaged and shipped in full compliance with all applicable federal regulations. There 

is no basis whatever to claim that TFSI "knowingly" violated any such regulations or owes FAA 

a civil penalty. The agency seems to recognize this, as it has never alleged- not even in the 

Amended Notice- that the company "knowingly" violated any requirements. 

JZ&ST 
In light of the above, and to maximize our chances of resolving this case quickly, it would help if 

FAA would please do the following to help focus our upcoming discussion: 

(1) Identify whatever documentary materials FAA continues to withhold. 

(2) Produce for inspection the referenced bottle, box and other physical evidence related to 

this case. 

(3) Issue a Second Amended Notice that accurately describes the NOPC it amends and 

deletes allegations you do not intend to pursue or that are time-barred. 

The completed IC response/request form is attached. I look forward to hearing from you . 

. Cox, sq 

{.r/ 

nsel for 'J?hermo Fisher Scientific, Inc. 

/wg;J->1 lit 21_i_i+ 

P:~,'l'" :, 
Exhibit 3 
U.S. Department 

of Transportation 

Federal Aviation 

Administration 

·_ c 

CERTIFIED MAIL 

Jerry W. Cox 

Potomac Strategy Associates 

2729 Gallows Rd., Suite 401 

Vienna, VA 221 08 

Southern Region 

Office of the Regional Counsel 

Re: Fisher Scientific Company, Inc. 

EIR# 2011 S0700457 

Mr. Cox, 

P.O. Box 20636 

Atlanta, Georgia 30320 

( 404) 30S-5200 

(404) 305-5223 FAX 

This letter is in response to your letter dated August 18, 2014. In your letter, you ask the 

Administrator for additional information or explanation relevant to the allegations and violations 

contained in the Notice of Proposed Civil Penalty ("NOPCP") and/or Amended Notice of 

Proposed Civil Penalty ("ANOPCP"). 

First, the above-described matter is at the informal conference stage of matter processing. 

Pursuant to 14 C.F.R. §13.16(f)(l)(iii) this option allows a party responding to a notice to 

"discuss the matter with the agency attorney and to submit relevant information or documents." 

However, because it is an "informal" process, it is not intended to be a full hearing of the matter. 

Second, I would like to clarifY the format of the NO PCP and ANOPCP. First, the numbered 

paragraphs are allegations that the Administrator, based on the "Enforcement Investigative 

Report," asserts are events or facts that occurred as a result of Thermo Fisher Scientific, Inc. 

("TFSI") offering a package to United Parcel Service ("UPS") on July 20, 2011. Second, the 

lettered paragraphs are summaries of the specific regulations that the Administrator asserts have 

been violated by TFSI as a result of the allegations, if proven true by a preponderance of the 

evidence. 

Third, the factual allegations in this matter allege a knowing offer of a hazardous material which 

was released into the environment because it was not properly packaged for air transportation. A 

person acts "knowingly" in cases arising under the Federal Hazardous Material Transportation 

Act ("FHTMA") under the following circumstances prescribed in 49 U.S. C. § 5123 (c): 

" ... A person acts knowingly when-

(A) the person has actual knowledge of the facts giving rise to the violation; or 

(B) a reasonable person acting in the circumstances and exercising reasonable 

care would have that knowledge." 
The FAA need only prove by a preponderance of the evidence that an offeror knowingly offered 

for transportation a hazardous material- not that the offeror knowingly offered for transportation 

a hazardous material that was in violation of the hazardous materials regulations. See FAA v. 

Gamache-Wortman, FAA Docket No. CP10AL0005, FN3 (October 1, 2012) (Knowingly means 

that respondent knew that she had performed the act under review - that is, that she knew she 

had tendered aerial flares and shotgun shells for air transportation. See 49 U.S.C. § 5123. It does 

not mean that she knew that these acts violated the law.) The shipment in this matter was 

marked and labeled as a hazardous material and offered via UPS Next Day Air. Therefore, the 

offeror had actual or constructive knowledge that it was offering a hazmat for air transportation. 

Fourth, the proposed sanction alleged in this matter is based on the release of a hazmat into the 

environment and a packaging failure. The sanction is derived with the use of the FAA Sanction 

Guidance in FAA Order 2150.3B, Appendix C. In a typical case, such as this one, when a 

declared shipment is offered, the FAA groups the categories of violations present (shipping 

papers, marking, labeling, packaging, etc.) into categories. It would have been sufficient-to 

generally allege that the package was not properly prepared for air transportation. However, 

responding parties, especially regular shippers of hazmat, have found it informative to have most 

or all of the applicable packaging regulations cited in the Notice so they can avoid future 

violations. Although there are several different packaging violations alleged in the Notice, the 

proof any one of the packaging regulations and the proof of a release into the environment 

support the amount attached to each category ($3250) and the proposed sanction of $6,500. 

Fifth, you make a request to inspect the bottle and "other physical evidence" of the events 

alleged in the NOPCP I ANOPCP. Please be aware that the air carrier maintains the shipment 

and disposes of the shipment as appropriate. The Agency neither seizes nor stores hazardous 

material shipments that are inspected by the Agency at air carrier facilities. 

Finally, though you are, of course, free to disagree and appeal this matter, the preponderance of 

the evidence in this case supports the allegation that your client had actual or constructive 

knowledge that it was offering a hazardous material for transportation by air. The package was 

not properly packaged for air transportation and released hazardous material. Throughout this 

discourse, these basic allegations have not changed. The sanction is supported by statute, 

regulation, and agency policy. 

Please contact me to discuss a mutually agreeable date to conduct the second informal 

conference. Yqu may reach me at the above number or by email, William.Vines@faa.gov. 

Sinc~rely,\ \ i \ -<y,~''\; ~-

WILLif\M \~"' VINES 

Attorney 

Office of the Regional Counsel 
Exhibit 4 
S. HRO. 101-955 

HAZARDOUS MATERIALS 

TRANSPORTATION 

HEARING 

BI!.I'ORJ! Tl!E 

SUBCOMMITTEE ON SURFACE TRANSPORTATION 

oP rna 

COMMITIEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED FIRST CONGRESS 

SECOND SESSION 

ON 

THE TRANSPORTATION OF HAZARDOUS MATERIAlS 

JULY 25. 1990 

Printed for the usc of the 

Committee on Commerce. Science, and Transportation 

U.S. OOWB.NMEIITP!INliNO OI'FICI! 

W ASHINO!pN: 1990 

...... 1\.•"\.11 
3 

when he returns to Washington. If so, I would appreciate the witnesses who are at the table now and any others who may come 

before the committee today to respond to those questions as quickly 

as they can. 

I also have a statement from Senator Danforth for the record. 

[The statements follow:] 

July 2!l. npg 

I welcome today•e hearing on reauthorization of tho Hazardous Matariala Tran•portation Act. Miaaouri liea at the transportation oroaaroada of the nation. Kanaae City ia the second buaieat railroad hub in the nation, tollowad by St. Louie. No tawar than five intaratata highway• oroa1 the State ot Miaeouri. 

Mieaourlana cannot eacape the tact that major transportation activity meane major hazardoua materials activity. Two-thirda ot all hacardoua mat.riala ahippad in the United Btatea are transported by rail or b¥ trucks. Bargas, travelling on rivera llka the M1aaiaaipp1 and th• Mieeour1, carry the third large•t amount of hezardoue 90ode. 

In April of 1989, Senatore Bond, Kaaae~aum and I introduced s. 728, the H&l&rdoua Material• Transportation Amendments of 1989. Thie aimpla, etraightforward bill reeponds directly to serious safety concern• raised by our conetituanta in xaneae and Miaeouri. 

It &lao addreeaee leeeone learned from our axp&riencae with the rail lhipmant of radioactive waetaa from the damaged Three Mila leland nuclear power plant in Pennsylvania to the Department of Energy'& research center !n Idaho Falla, Idaho. 

Specifically, s. 728 would require the following• 

1 ~ llltndotorv Vag of P9d.J,smtad, Trninm. 

Currently, ehippers cnn Qecid& to transport railcars carrying high-level radioactive mcter!a!e en ~mixed" trains, transporting everythinq from dangaroua chemicala to grain. The choice to ahip Three Mile Island nuclear waetee from Panneylv~nia to Idaho by dedicated trains hal been a matter ot policy. tt naeda 

to ba a matter of lAK· Thia bill direct& the Secretary ot Traneportation to require that aingleMpurpoae trains be used for all rail shipments of high-level radioactive waeta1 or epant nuclear fuel. 
s. 

6. 

7. 

5 

ehipmante of high-level radioactive waste and apent I' nuclear fuel are tranaported annually. Thousands of low-level radioactive shipments, many of them for medical o~ research purpoeae, also ere baing shipped each year. 

Now, we don't know bow many of these shipments re inepected. Tranaportation eafety genaraliuta at the federal level inspect some of them, state and local inepector• inspect others. 'l'hia provision, which ia •!Milar to legislation first introducag by Senator Ka11ebaum during the lOOth Congreaa, would ensure th t Ill high-laval radioactive shipments are inspected a point of origin, and that lower-l•v•l radioactive ahipmanta are checked regularly. 

Jfondotorv Pamitthq gg llnt:pr corr!en to Tr•n•PPrt Cart;o!n Haprdwa Jla1itri iij. 

DOT doaa not have a complete liat of motor ca:rirr• who ~raneport variouu hazardcu• materials, ncr can it tell whlah onea operate safely. Thia provi1ion would require motor carriere to obtain a federal permit to transport certain highly dangeroua oargoea1 Claae A or B exploaivaa, materials tbat are extremaly toxic by I inhalation, or certain radioactive materials. carriere who fail to comply with the law would lose their j permits. Shipper• could use permit~ad carrier• only. 

:Jf'ft!!2;.gfi,PQ:~!¥: e:v:-g:;:•;~toinaro l&tll 

On November 29, 1988, eix Kansas City firemen wet• kill•d when the ar•on-cauled fire they ware fightinq cau1ed tha violant exploaion of an unmarkad truck trailer parked at a highway con1truct!on alta. Bacau!e the trailer• a haaardoul materials warninq placardl ha been removed, the firemen were unaware that it contai ed over 25,000 pounde of explosives. This provision wou d require packages, containara or vahiclae contalninq hacardous materiala to remain placarded until their dangerous contantl are gone. ' 

pglAtipn of •lnqwinqly• frpp tb• Ciyil Penoltien Bftqt!oo ot th• Ha•prdpua Kotu1o11 TronnoortoUon Apt.. I 

The Hasardous Materials Traneportation Act makes liable for a civil penalty anyone who "knowingly commite" a violation of the Act or ita ragulatione. ~he DOT alwaya haa inJ:,erprated the term "knowingly" to main 

-3-
a. 

6 

. ~~. . -·- that a person knew1 or in the exercise ot reaaonable care mhould have known, of the faote constituting a violation. 

However, a u.s. district court xecently ruled that 

DOT could not levy penalti•a unless it could_prove that 

the actione of a parson or company involved •willful negligence,• or a •rackleea diareqard for the probable 

con•aquancea.• If th!a standard prevails, DOf will be 

powerlaal to protect the public trom ca~alase 

tran1portere of hazardous goode, unleas their violations are especially egregioue. 

It !o o~vious that the court' I decision goeo too 

far, eeriouely undermininq DOT's existing enforcement 

eftorta. Thia proviBion would cllow DOT to continua to enforc• the law. 

DOT ie authorized to iaaue compliance orders, but onlr the Diatrict cou=t• of the United Statea, upon pat tion by the u.s. Atto=nay G.neral, can enforce auch o=dera. 1bia proviaion would authorize DOT to enforce compliance ordera. 

9. P;phib!tLgn oqolne~ T•ppprinq yith Bp•o;dput lpt9rltlt lhilwnt;e. 

10. 

During 1988, an improperly placarded ca= waa hooked 

up to one of the Three Mile Ialand apent nuclear fuel 

trains aa it was about to enter Miaaouri. During the 

invaativaticn of thi1 incident, wa learned that no provision in the exiating Hacardoua Material• 

Tranaportation Act explicitly prohibit• tampering with 

euch ahipmente, 

Thia provision provides for civil penaltiea for any 

peraon, without lawful authorication, who tampers with markinga, placards or documents requir•d on a hazardous 

material• shipment, or with anr packa;e, container, motor vehicle, railroad car, a rcra!t, or veaael uaed 

for transporting bazardoua materials. 

DOT auGite motor carriara and aaeivna them ratinge of baatiefactory," "conditional," or "unaatiafactory." 
Exhibit 5 
101ST CONGRESS ) 

2d Session SENATE 

Calendar No. 803 

REPORT 

101-449 

HAZARDOUS MATERIALS TRANSPORTATION 

SAFETY IMPROVEMENT ACT OF 1990 

Mr. HoLLINGS, from the Committee. on Commerce, Science, 

and Transportation, submitted the following 

REPORT 

OF THE 

SENATE COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

ON 

s. 2936 

AUGUST 30, 1990.-0rdered to be printed 

Filed under authority of the order of the Senate of August 2 Gegislative 

day, July 10), 1990 

39-010 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON ; 1990 
3 

LEGISLATIVE HisTORY 

Senator Exon introduced S. 2936 on July 30, 1990. Additional 

proposals before the Senate and referred to the Committee include: 

S. 581, the Hazardous Materials Rail Transportation Act; S. 728, 

the Hazardous Materials Transportation Amendments of 1989; S. 

729, the Radioactive Materials Transportation Act of 1989; and S. 

2318, the Hazardous Materials Safe Transportation Act of 1990. 

House proposals include: H.R. 3520, the Hazardous Materials 

Transportation Act Uniform Safety Amendments Act of 1990, as 

approved by the House Committee on Energy and Commerce and 

the House Public Works Subcommittee on Surface Transportation; 

H.R. 3229, legislation submitted at the request of the Bush Administration; and H.R. 2584, legislation requiring registration and 

tracking of hazardous materials shipments. 

During the lOOth Congress, the Committee held three days of 

hearings on the issue of hazardous materials transportation. 

During these hearings, the Cominittee received testimony from several Senators, as well as an overview of HMTA from OTA, the Congressional Research Service, DOT, and panels representing local officials, industry, shippers, and carriers. The third of the three hearings focused primarily on the transportation of nuclear materials. 

During that hearing, testimony was received from DOT, DOE, 

NRC, and panels representing States, industry, and public interest 

groups. No consensus was reached on hazardous materials trans· 

portation safety legislation last Congress. 

This Congress, at the hearing on July 25, 1990, the Committee 

heard testimony from Senators Howard Metzenbaum and Arlen 

Specter, Representative Douglas Applegate, RSPA and panels representing shippers, carriers, States, labor, fire fighters, and fire 

safety administrators. 

On July 31, 1990, in open executive session, the Committee considered S. 2936 and, after adopting an amendment offered by Senator Kasten to direct a DOT study of shared shipper-carrier liability, 

ordered the bill reported as amended without objection. 

SuMMARY oF MAJoR PRoVIsioNs 

The bill, as reported, includes provisions in the following areas. 

Regulations.-Mandates that the Secretary issue regulations for 

the safe transportation of hazardous materials in intrastate, interstate, and foreign commerce. Regulations would be applicable to 

shippers, carriers and container manufacturers. 

Highway Routing.-Requires DOT to issue standards for States 

to use in the designation of highway routes for the safe transportation of hazardous materials. Highway routing standards would be 

required to enhance overall public safety, include consultation with 

affected jurisdictions, provide an opportunity for public comment, 

and not unreasonably burden commerce. In establishing routes, 

specific factors would be considered including: population density, 

type of highways, type and quantities of hazardous materials, 

emergency response capabilities, consultation with affected parties, 

exposure and other risk factors, terrain considerations, continuity 

of routes, alternative routes, effects on commerce, and such other 

factors as the Secretary considers appropriate. The bill also estab-
5 

materials the Secretary determines should be subject to such regulations of their high degree of risk when transported. 

'current $10,000 to a 

VIE>~atl?:r:. per day. A minimum civil 

penalty of $250 is establiis~E~~ by the bill. The bill also amends the 

criminal penalty section of the HMT A to provide that in addition 

to a five-year maximum criminal sentence for persons who knowingly violate the Act, such persons also may be fined up to a maximum of $250,000 for individuals and $500,000 for corporations. 

Transportation of Highly Radioactive Materials.-Requires the 

Secretary to issue regulations requiring the use of single-purpose dedicated trains for the transportation by rail of high-level radioactive waste and spent nuclear fuel by any party, including shipments under the direction or supervision of DOE or the Department of Defense (DOD). The bill also requires that the Secretary 

issue standards for the selection of shipping modes and routes used 

for the transportation of high-level radioactive waste or nuclear 

spent fueL Such materials may not be transported except in packages or containers that have been certified by the NRC after being 

subject to performance testing on a sample full-scale package or 

container, in addition to any simulated testing, testing on scale 

models, or engineering analysis. 

Emergency Response Planning and Training Grants.-Allows the 

Secretary to make grants to States and Indian tribes to enhance 

planning and public sector employee training for responding to 

hazardous materials. The bill would require States to pass at least 

75 percent of their grant monies to political subdivisions of the 

State. This provision requires grant use plans to be submitted to 

the Secretary which foster and promote regional response teams, 

eliminate duplication of existing efforts, and provide for coordination of activities. 

The bill allows grants to be used for: (1) surveying routes; (2) analyzing hazards; (3) defining specific response functions and roles; ( 4) 

developing a long-term governmental resource and training strategy; (5) improving and exercising hazmat emergency response plans; 

(6) developing notification, evacuation, and shelter procedures; (7) 

paying for training and costs associated with training courses and 

materials; and (8) increasing capability of the grantee to train, plan 

for, and respond to hazmat emergencies. In order to receive a 

grant, the bill requires that a Stete, political subdivision of a State, 

or Indian tribe certify to the Secretary that the grant will be used 

to train a wide variety of emergency response personnel, utilizing: 

(1) training requirements of the Emergency Planning and Community Right-to-Know Act of 1986; and (2) occupational safety andhealth standards issued by the Administrator of EPA and the Secretary of Labor, or other training standards or courses issued, approved, or recommended by the Secretary, the Administrator of 

EPA, the Director of FEMA, the Chairman of NRC, the Secretary 

of Labor, the Secretary of Energy, the Secretary of Health and 

Human Services (HHS), the Federal Radiological Preparedness Coordinating Committee, or the National Response Team. 
18 

all commodities, even those which they may not wish to haul, i.e. 

spent nuclear fuels m~;d high~level radioactive wastes: lmpositio~ of 

requirements that rrul earners must hold a perrmt for haulmg 

such materials could enable reluctant carriers to escape their 

"common carrier" obligation by simply failing to apply for or maintain a permit. Special regulations, vigilant enforcement by the 

FRA, emergency action authority pursuant to the FRSA, and stiff 

penalties under the HMTA should serve as an effective substitute 

for actual permit requirements for rail carriers.) 

New section 106(dX6) provides that the Secretary shall conduct a 

rulemaking proceeding and, within 12 months after the date of enactment of this subsection, issue regulations requiring the safe operation by persons who transport or cause to be transported by 

rail, air, or water in commerce any class A or B explosives, any 

hazardous material which has been designated by the Secretary as 

extremely toxic by inhalation, or radioactive materials in such 

quantities as detennined by the Secretary or other hazardous ma· 

terials the Secretary detennines should be subject to such regulations because of their high degree of risk when transported or significant concern to the public. This list would include materials 

that may be added to the list of materials for which motor carrier 

permits are required pursuant to the rulemaking under paragraph 

(5). Such proceeding shall take into consideration factors including, 

but not limited to, toxicity, inhalation hazard, and evacuation distances required, as well as the potential for multiple deaths or iojuries or significant environmental hazards, in the event of an accident. 

SECTION 5.-ELIMINATION OF PUBLICATION REQUIREMENT FOR 

RENEWAL OF EXEMPTIONS 

Section 5 amends section 107(a) of HMTA to eliminate publicafum requirements for renewal of exemptions where such renewal 

involves only an extension of the time during which the exemption 

is in effect. 

SECTION 6.-DEFINITION OF RADIOACTIVE MATERIALS 

Section 6 amends section 108(b) of HMTA to provide that the 

term "radioactive materials," as used within the Act, does not in· 

elude any material which the Secretary determines is of such a low o~der of radioactivity that, when transported, does not pose a sigmficant hazard to health or safety. 

SECTION 7.-PURPOSE OF REVIEW OF HAZARDOUS MATERIALS 

TRANSPORTATION 

Section 7 amends section 109(d)(l)(C) of HMTA to enable the Secretary to "take" certain actions rather than simply "recommend" 

corrective action. · 
19 

recognition of the fact that the maximum civil penalties have not 

been increased since the adoption ofHMTA in 1975. 

Subsection (b) amends section 110 of HMTA to strengthen criminal penalties. This subsection provides that a person who knowingly violates section 105(f) of this title or willfully violates a provision 

of this title or an order or regulation issued under this title shall 

be fined under title 18, U.S.C., which currently subjects individuals 

to fines of up to $250,000 and corporations up to $500,000, or imprisoned for not more than 5 years, or both." 

SECTION 9.-CONFORMING AMENDMENT 

Section 9 amends section 1ll(b) to make a conforming amendment regarding imminent hazard authority for DOT. 

SECTION 10.---TRANSPORTATION OF CERTAIN ffiGHLY RADIOACTIVE 

MATERIALS 

Section 10 adds a new section 115(a) to HMTA to provide that, 

within 120 days after the date of enactment of this section, the Secretary shall issue regulations, with respect to the transportation by 

rail of high-level radioactive waste and spent nuclear fuel. Such 

regulations shall prohibit any transportation of such materials by 

rail, including shipments of such materials made by or under the 

direction or supervision of DOE or DOD, unless such materials are 

transported on trains operated exclusively for such purpose. The 

Secretary shall establish effective procedures for monitoring and 

enforcing the provisions of such regulations. 

Currently, nothing prohibits shippers from transporting railcars 

carrying high-level radioactive materials on "mixed" trains which 

carry everything from dangerous chemicals to grain, even though 

emergency response would be extremely complex in the event of a 

serious rail accident in which those materials were intermingled. 

As a matter of policy, dedicated trains were used during DOE's 

entire four year shipping campaign to transport high-level radioactive wastes from the damaged Three Mile Island (TMD nuclear reactor in Pennsylvania to Idaho for research and storage. The Committee intends that the practice of using dedicated trains in such 

instances be a matter of statute, not policy. 

New section 115(b) requires the Secretary, within 12 months 

after the date of enactment of this section, to issue standards for 

the selection of shipping modes and routes used for the transportation of high-level radioactive waste and spent nuclear fueL Such 

standards shall be developed in consultation with all potentially-affected States and Indian tribes and, after notice and opportunicy 

for public comment, shall include, but not be limited to, requirements that enhance overall public safecy, taking into consideration 

population densities, types and conditions of highways, railbeds and 

waterways, quantities of high-level radioactive waste and spent nuclear fuel, emergency response capabilities, exposure an~ other risk 

factors, terrain considerations, continuity of routes, available alternative routes environmental impact factors, and such other factors 

as may be ~ecessary to select between alternative modes and 

routes as the Secretary considers appropriate. 
38 

a1s in which (1) the estimated specific activity is not greater than 

0.002 microcuries per gram of material; and (2) the radiation is distributed in an essentially uniform manner.] The term does not iJt. 

elude any material which the Secretary determines is of such low 

or-der of r.adioactiuity that when transported does not pose a signifi. 

cant hazard to health or safety. 

Section 109 of that Act 

POWERS AND DUTillS OF THE SECRETARY 

SEC. 109. (a) • • • 

(b) through (c) • • • 

(d) FACILITIES AND DUTIES.-(1) The Secretary shall-

(A) through (B) • • • 

(C) conduct a continuing review of all aspects of the transportation of-hazardous IImterials in order to determine and to be able to 

[recommend] to.ke appropriate steps to assure the safe transporta· 

tion of hazardous materials. 

(e) • • • 

Section ll 0 of that Act 

PENAL TillS 

SEc. 110. (a) CIVIL.-(1) Any person [(except an employee who acts * 

without knowledge)] who is determined by the Secretary, after 

notice and an opportunity for a hearing, to have [knowingly] 

committed an act which is a violation of a provision of this [title 

or of a] title, or an order or regulation issued under this title, shall 

be liable to the United States for a civil penalty. Whoever [know· 

ingly] commits an act which is a violation of any order or regula· 

tion, applicable to any person who transports or causes to be trans· 

ported or shipped hazardous materials, shall be subject to a civil 

penalty of not more than [$10,000] $25,000 and not less than $250 

for each violation, and if any such violation is a continuing one, 

each day of violation constitutes a separate offense. Whoever 

[knowingly] commits an act which is a violation of any order or 

regulation applicable to any person who manufacturers, fabricates, 

marks, maintains, reconditions, repairs, or tests a package or con· 

tainer which is represented, marked, certified, or sold by such 

person for use in the transportation in commerce of hazardous ma· 

terials shall be . subject to a civil penalty of not more than 

[$10,000] $25,000 .and not less than $250 fur each violation. The 

amount of any such penalty shall be assessed by the Secretary by 

written notice. In determining the amount of such penalty, the Sec· 

retary shall take into account the nature, circumstances, extent, 

and gravity of the violation committed and, with respect to the p~~son found to have committed such violation, the degree of culpa· 

bility, any history of prior offenses, ability to pay, effect on ability 

to continue to do business, and such other matters as justice may 

reqmre . 

. [(b) CRIMINAL.-A person is guilty of an offense if he willfolly 

Vlolates a provision of this title or a regulation issued under this 

title. Upon conviction, such person shall be subject, for each of· 
39 

fense, to a fine of not more than $25,000, imprisonment for a term 

not to exceed 5 years, or both.] 

(b) CRIMINAL.-A person who knowingly violates section 105({) of 

this title or willfully violates a provision of this title or an order or 

regulation issued under this title shall be fined under title 18, 

United States Code, or imprisoned for not more than 5 years, or 

both. 

Section 111 of that Act 

SPECIFIC RELIEF 

SEc. 111. (a) • • • 

(b) IMMINENT li.AzARD.-If the Secretary has reason to believe 

that an imminent hazard exists, he may petition an appropriate 

district court of the United States, or upon his request the Attorney General shall so petition, for an order suspending or restricting 

the transportation of the hazardous material responsible for such 

imminent hazard, or for such other order as necessary to eliminate 

or ameliorate such imminent hazard. [As used in this subsection, 

an "imminent hazard" exists if there is substantial likelihood that 

serious harm will occur prior to the completion of an administrative hearing or other formal proceeding initiated to abate the risk 

of such harm] 

Section 114 of that Act 

EFFECTIVE DATE 

SEc.ll4. • • • 

TRANSPORTATION OF CERTAIN HIGHLY RADIOACTIVE MATERIALS 

SEC. 115. (a) DEDICATED T'RAINS.-Within 120 days after the date 

of enactment of this section, the Secretary shall issue regulations, in 

accordance with this section and pursuant to section 105 of this 

title, with respect to the transportation by rail of high-level radioactive waste and spent nuclear fueL Such regulations shall prohibit 

any transportation of such materials by rail, including shipments of 

such materials made by or under the direction or supervision of the 

Department of Energy or the Department of Defense, unless such 

materials are transported on trains operated exclusively for such 

purpose. The Secretary shall establish effective procedures for monitoring and enforcing the provisions of such regulations. 

(b) MoDE AND ROUTE SELECTION.-The Secretary shall, within 12 

months after the date of enactment of this section, issue standards 

for the selection of shipping modes and routes used for the transportation of high-level radioactive waste and spent nuclear fuel. Such 

standards shall be developed in consultation with all potentially·affected States and Indian tribes and after notice and opportunity for 

public commen~ and shall include but not be limited to requirements that enhance overall public safety, taking into consideration 

population densities, types and conditions of modal infrastructures 

(including highways, railbeds, and waterways), quantities of highlevel radioactive waste and spent nuclear fue~ emergency response 

capabilities, exposure and other risk factors, terrain considerations, 
Exhibit 6 
33328 CONGRESSIONAL RECORD-SENATE October 23, 1990 

New Jersey have long SUPPOrted 

strong protective measures for their 

coastlines. In approving the· compact, both States made sure that the au- thority would have to comply with strict environmental standards. Article XXII was written in response to environmental concerns in both States. Section 2 of the joint resolution addresses Federal concerns. 

For example, Delaware has established an extensive review process for 

economic development projects. For a project to be approved in Delaware, it 

must be initiated by the Governor, re- viewed by the State Department of 

Natural Resources and Environmental 

Control, be the subject of public bear· 

ings by the authority, and approved by a majority of commissioners from both 

States. and finallY. receive all applica- ble Federal, State. and local environ- mental permits. And if it is a major project, it must also have the aPproval of the Delaware General Assembly, In short, environmental protections 

were extensively considered during de- velopment of the comPact by the 

States and strong provisions were included in it. In particular, the compact in no way affects the jurisdiction of 

the Coastal Zone Management Act, Federal wetlands protection progr such as the section 404 pr: 

other Federal en virorunentall 

the authority's projects. The a ity will be subject to all app!' virorunentallaws. 

Earlier this month, I introduced 

Senate Joint Resolution 3'13, the com- panion bill to House Joint Resolution 

657. The Senate Judiciary Committee a~proved Senate Joint Resolution 373 on October lL In order to expedite congressional consent to the compact amendments~ the Senate has taken UP the House bill to send to the Presi- dent. 

The economic development activities 

of the Delaware River and Bay Authority will not, by themselves, assure a solid economic future for Delaware or southern New Jersey. And it is important that the authority not forget that its main purpose remains the operation of the Delaware Memorial 

Bridge and the Lewes-Cape May Ferry. The bridge and ferry are among the finest in the world. The authoritY 

must make sure that those high standards continue to be met. 

But the new responsibility, lf put to 

good use, can assist the economic 

future of the counties bordering the 

Delaware Ba.y. Yearly figures vary, but 

with the compact change, millions of 

dollars will be available to assist eco- nomic growth in Delaware and New 

Jersey. With the environmental, financial, tall rate, and other protections included in the compact and congres- sional reservations, the economic development projects of the authoritY 

will be conducted wlthin carefully drawn tJarameters. 

I would like to thank the ranking minority member of the Judiciary Committee, Senator THuRMoND, for 

his cooperation in moving the Senate joint resolution through the committee. I would also like to thank the 

leadership of the Environment and 

Public Works Committee. Senators 

BURDICK and CHAFEE, for their assistance in clearing the changes to the 

Bridge Act that are part of the joint resolution so congressional consideration could proceed smoothly and 

quickly. 

The PRESIDING OFFICER. With· 

out objection, the joint resolution is 

deemed read the third time and passed 

and the preamble is agreed to. 

So the joint resolution CH.J. Res. 

657) was passed. 

The preamble was agreed to. Mr~ LEAHY. Mr. President, I move 

to reconsider the vote, 

Mr. KASTEN. I move to lay that 

motion on the table. 

The motio11 to lay on the table was 

agreed to. 

Mr. LEAHY. Mt'. President, I ask 

unanimous consent that Calendar No. 

966 be indefinitely postponed. The PRESIDING OFFICER. With· 

out objection, it is so ordered. 

HAZARDOUS MATERIALS TRANSPORTATION SAFETY IMPROVEMENT ACT 

Mr. LEAHY. Mr. President, I ask 

unanimous consent that the Senate 

proceed to the immediate consideration of Calendar No, 803, S. 2936, the 

Hazardous Materials Transportation 

Safety Improvement Act. 

The PRESIDING OFFICER. The clerk Will report. 

The assistant legislative clerk read 

as follows: 

A bill cs. 2936> to amend the Hazardous Materials Tran!o-portatlon Act to authorize 

appropriations for fiscal years 1990, 1991. 

and 1992, and for other purposes. 

The PRESIDING OFFICER. Is 

there objection to the immediate con- sideration of the blll? 

There being no objection, the Senate 

proceeded to consider the bill, which 

had been repoxted from the Committee on Commerce, Science, and Transportation, with amendments; as follows: 

(The parts of the blli intended to be 

stricken are shown in boldface brackets aod the parts of the bill intended 

to be inserted are shown in italic.) 

s. 2936 

Be it enacted by the Senate and House of 

Representativea oj the United Stales of 

America in Congress assembled. 

SHORT 'l'r.ti.E 

SEcnoN 1. This Act may be cited as the 

"Hazardous Materials Transportation Safety Improvement. Act of 1990 ... 

OEFrNITIONS 

SEC. 2. Section 103 of the Hazardous Mate· rials Transportation Act <49 App. U.S.C. 

1802> is a.m.ended-

<ll by strf.king paragraph <4l; <21 by redesignating paragraphs <3), (5}, <6}, and <71 Cand anY reference thereto) as paragraphs ('l), an. (9), and <10), respective- ly; and 

(3) by Inserting immediately after Paragraph <2) the following new paragraphs: 

"(3) •imminent hazard' means the exist- ence of a. condition which presents a sub· stantial likelihood that death, serious illness, severe personal injury. or substantial adverse effect to health. property, or the en- vlroruncnt may occur before the reasonably foreseeable completion date of an administrative hearing or other formal proceeding initiated to abate the risk of such hann: 

"(4) 'Indian tribe' shall have the meaning given that term under section 4 of the Indian Self-Determination and Education Act {25 u.s.c. 450b}; 

"(5) 'motor carrier' means a motor common carrier, a motor contract carrier. or a motor private carrier as those terms are defined In section 10102 of title 49, United States Code; 

"(61 'person' means an indiVidual, finn, co- partnership, corporation, company, assocta· 

tion. joint-stock association, including anY 

trustee, receiver, assignee, or similar repre· sentative thereof, government. Indian tribe, or agency or instrumentalitY of any govern- ment when it offers hazardous materials Ior transportation in commerr.e or transports hazardous materials in furtherance of a commercial enterprise, but does not include the United States Postal Service and, for the purposes of s:actions 110 and 111 of this title. any agency or instrumentality of t11e Federal Government". 

REGULATIONS GOVERNING TRANSPORTATION OF 

HAZARDOUS MATERIALS 

SEC. 3. Section 105 of the Hazardous Mate- t.ials Transportation Act (49 App. U.S.C. 1804) is amended to read as follows: 

"REGtJl.ATIONS GOVERNING TRANSPORTATION OF 

KAZAl\DOUS MATERIALS 

"SEC. 105. (a) G.ENERI\L.-(ll The Secretary shall issue, in accordance with the provf· sions of section 553 of title 5, United States Code, including an opportunity for informal oral presentation, regulations for the safe 

transporta.tton of hazardous materials in 

intrastate, interstate, and foreign com· merce. 

"(2) The regulations issued under this subsection shall be applicable to anY person who transports, or causes to be transported or shipped, a hazardous material, ot who manufactures. fabricates. marks. maintains, recondltlons. repairs. or tests a package or container which is represented, marked, cer- tified, or sold by such person as qualified !or use in the transportation in commerce oi certain hazardous materials. 

"(3) Regulations issued under this subsec- tion shall govern any aspect. of hazardous materials transportation safety which the 

Secretary determines necess&.,l-· or appropri- ate. 

"(b) HIGHWAY RoUTING OF HAZAIUIDUS MA-

'l'EIUALS.-(1) Not lat.er than 1 year after the date of enaetment of the Hazardous Materi· 

als T.ransportation Safety ImProvement Act of 1990, the Secretary shall issue standards 

for the designation of highway routes over 

which nazardous rnaterials may be trans· ported in commerce by motor carriers. Fol· lowing issuance of such standards, no State, 
October 23, 1990 CONGRESSIONAL RECORD-SENATE 83329 Political subdivJsion of a State, (or] Indian 

[tribe] tribe. or Federal agency shall desig- nate highway routes for the transportation of hazardous materials, except In accord- ance with those standards. 

"C2l Highway routing standards issued by the Seeretar~ under paragraph (1) shall in~ 

elude the following reqUirem~nt:i: 

"tAl Highway route designations shall en· hance overall public safetY in the jurisdic- tion of the authority designating the route 

and in other jurisdictions directly affected 

by the designation. 

"<B> Each State, polltical subdivision of a State, Indian tribe, or Federal agency seeking to designate a highway route for the 

transportation of hazardous materials shall 

consult with each Jurisdiztlon directly af. 

fected by the designation and offer an opportunity for public comment. 

"(C) No such route designation by a State, 

political subdivision of a State, [or Indian 

tnDe] IndUz.n tribe, or Federal agency may be executed unless (i} it is agreed to by each 

[State or Indian tribe] Slate. Indian tribe. 

or .Federal !lgency directly affected by the 

designation, or <Ill any dispute over the 

route designation arising from the failure of 

such an affected [State or Indian tribe] 

state, Indian tribe. or Federal agency to 

agree to that designation is resolVed in favor 

of the designating [State or Indian tribe] State, Inrtian tribe. or Federal agency under 

paragraph (5} of this subsection. 

"(0) such route designations shall not un~ 

reasonably burden commerce. "(EJ The ro.ute designation process prov!d~ 

eel in this subsection, inclUding the partici· pation of affected juri:sdictions, shall be 

completed in a timely manner. "<~> Standards Issued bY the secrcta.rs 

under paragraph Cl> shall provide for con~ 

sideration of factors such as- "CAl population density; "CB> type of highways; "CC) type and quantities_ of hazardoUs ma.~ 

terlals; 

"CD> emergency response capabilities; "CEl consultation with affected parties; "<F> exposure and other risk factors: 

"CGl terrain considerations; "(Rl continuity of routes: 

"(I) alternative routes: 

"(J) effects on conunerce; and 

"<Kl such other factor.;; as the Secretary considers appropriate. 

"C4l states shall be responsible !or deter· 

mining, tn accordance with requirements es- tablished by the Secretary, that the high~ 

way route designations of their political 

subdJvisions are in accordance with this subsection. 

"(5)(A) If a State Con its behalf or on 

behalf of one of its politii:!al [subdiVisions) or an Indian tribeJ subdivisions), Indian 

tribe. or Federal agency is unable to cbtain 

the agreement of any adjacent [State or Ind1a.n tribe1 Stale, Indian trtbe, or Federal 

agency to a. highway route designation in ac· 

cordance with this subsection, after attempting to resolve the dispute dtrectl}' 

with such adJacent [State or Indi-an tribe, the State or Indian tribe] State. Indian 

tribe, or Federal agency. the State. Indian 

tribe or Federo.Z agency seeking designation 

may petition the Secretary to resolve the 

dispute. This paragraph does not apply to 

disputes between political subdivisions 

within a State. 

"<B) The Secretary shall, within 18 

months after the date of enactment of the 

Hazardous Materials Transportation Safety Impro\"ement Act of 1990, issue regulations for resolving disputes between or among 

[States and Indian tribes] Stales, Indian 

tribes, and Federal agencies under this para- graph. 

"( C} The Secretary shall resolve a dispute under this paragraph within 1 year after 

the date the Secretary receives the petition for resolution of such dispute. 

"CDJ Where any [Stnte or Indillil tribe] State. Indian tribe. or Fedeml agency is 

seeking a highway route designation, the 

regulations issued under subparagraph (B) shaD provide for a finding in favor of such 

[State or Indian tribeJ State, Indian tribe, or Federal agency if that designation is in 

accordance with the standards Issued under 

paragraph <ll of this subsection and the 

highway route in dispute will provide the 

greatest level of highway safety without un- reasonablY burdenlng commerce. 

"(C) JUDICIAL REVIEW.-(1) Except as pro. vided in paragraph <21, route designations 

and dispute resolution decisions rendered 

under subsection <b> shall not be subject to 

judicial review in any civU or criminal pro- ceeding to enforce a route designation, "(2) Any State or Indian tribe that is a. party to a proceeding under subsection 

(b)<Sl and that is adversely affected by a decision rendered in such proceeding may, at 

any time before the explrat.ion of 60 days after that decision becohles final, file a petl· 

tion for Judicial review with the appropriate district court of the United States. 

"(d) LIST OF ROUTE DESIGNATIONS.-The 

Secretary shall periodically update a.nd pub~ 

lish a list of currently effective hazardous 

matertals highway route designations. ''(e) lNTERNA'XIONAL UNIFORMil'Y.-Cll Subject to guidance and direction from the Sec· 

retary of state, the Secretary shall partici· pate In international forums that establish or recommend mandatory standards and requirements for the transporbr.tion of haz· 

ardous materials in international commerce. "(2l The Secretary may consult with in· 

terested agencies to assure that, to the 

extent practicable, regulations issued by the 

Secretary pursuant to this section shall be 

·consistent with standards adopted by international bodies applicable to the transporta- tion of hazardous materials. Nothing in this 

subsection shall require the Secretary to 

Issue a. standard identical to a standard 

adopted by an international body, if the 

Secretary determines the standard to be un~ 

necessary or unsafe, nor shall the Secretary be prohibited from establishing safety requirements that ~-e more stringent than 

those included In a standard adopted by an international body, if the Secretary determines that such requirementa are necessary in the public interest. 

"<fl DrsCLOSUR£.-{1) Each person who 

offers for transportation in commerce a haz.. 

ardous material that is subJect to the ship- ping paper requirements of the Secretary 

shall provide the carrier, or mnintain on the 

vehicle if a. private motor canier, a shipping 

paper that, at a minimum, discloses in a manner prescribed by the SecretarY, the fol· }OWintr. 

"(A) a. description of the hazardous rnn.te~ 

rJal includJng the proper shipping name; 

"<Bl the hazard class of the hazardous 

material; 

"(C) the identification number <UN/NA) 

of tb.e material; 

"{D) immediate first .. action emergency re- sponse information or a means for appropri· 

ate reference to such lnfonnat1on which 

must be immediately available: and 

"CEll a telePhone nutnber for the purpose of obtaining more speci!lc handling and 

mitigation information concerning the haz· 

ardous material at anY time during its tran.s- portation. 

"C2l Any person who transports a hazardau.; material in commerce shan, in the event of an incident involving such material, im· 

meQiately disclose to appropriate emergency resnonse authorities. upon their request, in· 

formation on the hazardous mater:ial being transported. 

"(g} UNLAWFUL REPREs.ENTATION.-No 

person shaH, by marking or otherwise, rep- resent that-

"(ll a container or package for the trans· 

porta.tion of hazardous mat.etials is safe, cer· tiried, or in compliance with the require- ments of this title unless it meets the requirements of all applicable regulations issued under this title~ or 

"(2) a hazardous material is oresent in a 

package, container, motor vehicle, rail 

freJgllt car, aircraft. or vessel, if the hazard· ous material is not present. 

"(h} UNUWFUL TAMPEmNG.-No pen;on shBlJ unlaWfullY alter, remove, deface, destroy, or otherwise tamper with-

"(1) any marking, label, placard, or de~ 

scriptlon on a document required by this 

title or a rf'.guln.tion issued under this title; or 

"{2) any package, container, motor vehicle, rail freight. car, aircraft, or vessel used 

for the transportation of hazardous materl· 

als. 

"(i) RETENTION OF MARKINGS AND PLA.C· 

ARDs.-Not later than 6 monthS after the 

date of enactment of this subsection. the Secretary of Labor. in consultation with the 

Secretary of Transportation and the Secre· 

tary of the Treasury, shall issue under sec· tion 6<bl of the Occupational Safety and 

Hea.lt.h Act of 197D (29 u.s.c. S55tbn standards requiring any employer who receives a package, container, motor vehicle, ran 

freight car. aircraft, or vessel which con· 

ta.ins a hazardous material and which Is re· quired to be marked, placarded, or labeled 

in accordance with regulations issued under 

this Act to retain the markings, placards, and labe1s. and any other infonnation a.s may be required by such regulations on the 

package, container, motor vehicle, rail 

freight car, aircraft, or vessel, until the hllZ· 

ardous materials have been removed there· 

from.". 

HAZARDOUS MATERIALS TRANSPOltTA'l'ION 

SAFETY PERMI'l'S 

SEc. 4. Section 106 of the Hazardous Mate· 

rials Transportation Act <49 App. U.S.C. 

18051 Is amended by adding at the end the 

following subsection: 

"(dJ PERMirrnro.-(lJ Effective [one] 1 

year after the date of enactment of this sub· 

section, no motor carrier may transport or cause to be transported in commerce, in a quantity established by the Secretary, any 

class A orB exPlosives, any hazardous mate· 

rial which has been designated by the Secre· 

tary as extremely toxic by inhalation, or any highway route controlled quantity of 

radioactive materials as defined by the Sec· 

retary, unless the carTter obtains and pos- sesses a valid safety permit ~ssued by the 

Secretary authorizing the carder to engage in such transportation. Each person v:ho 

offers fm· transportation in commerce a haz· 

ardous material to which this subsection aP--

plies may only offer such material to a. c~­

rier presenting a valid safety permit. "(2l The Secretary shall issue a safety permit to each carrier required under para· graph Ul to possess a pennit 1f the carrier 

submits a complete application and meets 

all other requirements of the regulations 
33330 CONGRESSIONAL RECORD-SENATE October 23, 1990 

issued bY the Secretary under paragraph 

(4). including a certlflca.tion that the carrier 

has identified an hazardous material regula· 

tions of the Secretary applicable to the car· rJer".s operations and is In full compliance 

therewith and with the Federal Motor Carrier Safety regulations contained in subchapter B of chapter ro of title 49. Code of 

Federal Regulations. 

"{3) AllY .safety permit issued under this 

subsection lliAY, after notlce and an opportunity for a hearing, be amended, suspended, or revoked by the Secretary 1n accordance with procedures established under ~;~aragraph <4) whenever the Secretary determines that a carrier has failed to comply 

with a. requirement of this title or any regulation Issued under this title. In cases of Imminent hazard, the Secretary may amend or suspend a safety permit lmmediately without the opportunity for a hearing. 

"(4J The Secretary sha.ll, by regulation, establish-

"<A> to which hazardous materials and In 

whn.t Q.uantitles this subsection applles; 

"(B) standards of complJance reqUired to 

be met for issuance of a. safety permit; 

"(C) application procedures. including 

form. content, and filing fees; 

''<D> standards for determining the dura.~ 

tion. [terms] terms. condltlons, or Umltatlons of a safety perntJt; 

"<EJ procedures for the amendment, sus- pension, or revocation of a safety permit; 

and 

"<F> any other procedures the secretary 

considers appropriate to implement this 

subsection. 

"(5) Not later than 12 months after the 

date of enactment of this subsection, the 

Secretary shall lnltlate a rulemak.fng pro· 

ceeding to determine which -additional materials, if any, should be Included among the 

mater1sls specified In paragraph (1), for 

which motor carrier safety pertnits are re- quired because of their high degree of risk 

when transported. SUCh proceeding shall 

take into consideration factors [including] 

including toxicity, lnhalatlon hazard, and 

evacuation distances required, as well as the 

potential for mUltiple deaths or injuries or slsnificant environmental hazards, fn the 

event of an acc.ldent. Such proceeding shall 

be completed within 24 monthS after such 

date of enactment. The Secretary shall. 

within 3 months after completion of such 

proceeding, issue a rule specifying the materials, if a.ny, whioh shall be Included among 

those materials whose carriage requires a. safety permit in order to protect the public 

interest.. 

"(6) The Secretary she.U conduct a rulemaking proceeding and, within 12 months 

after the date of enactment of this subsec· 

tion, shall issue regulations reqUiring safe 

operations by persons who transport or 

cause to be transported by rail, alr, or water 

Jn commeree any class A or B explosives, 

any hazardous material which has been desIgnated by the Secretary as extremely toxic 

by inhalation, amt radioactive material in 

such quantity as established by the Secretary, or any other hazardous ma.terlal the 

Secretary determines shoUld be subject to 

such reguln.tions because of its high degree 

of risk when transported. Such proceeding 

shall take into consideration factors includIng toxlnlty, inhalation haZard, and evacuation distances required, as well as the potential for multiple deaths or Injuries or significant environmental hazards. in the event 

of an accident.". 

ELIMlNATION OF I>DBLICATION REQUIREMENT 

FOR RENEWAL OF EXEMPXIONS 

SEc. 5. Section 107(a.l of the Hazardous 

Materials Transportation Act <49 App. 

U.S.C. 1806(a)) is amended by inserting 1m· 

mediately before the period in the fourth 

sentence the following: "except that such 

publication shall not be required in the case of a renewal involving on1y an extension of 

the time during which the exemption i.s in 

effect". • 

DEFINl'IION OF RAlliOAC'l'IVE MATERIALS 

SEc. 6. Sectlon 108(b) of the Hazardous 

Materials Transportation Act (49 A(,p. 

u.s.c. 180'l(b)) is amended by striking the 

second sentence and Inserting in lieu thereof the following: "The term does not include 

any material which the Secretary deter· 

mines Js of such low order of radioactivity 

that when transported does not pose a slg· 

nlficant hazard to health or safety.". 

PURPOSE OF REVIEW OF HA"l.ARDOUS MATERIALS 

'l"RANSP01t1'AXION 

SEC. 7. Section 109(dl<U<C> of the Hazardous Materials Transportation Act <49 App. 

U.S.C. 1808(d)(l)(C)) is amended by striking 

"recommend" and inserting in lieu thereof 

"take". 

PENA!.'l'IES 

SEC. 8. (n,} CIVIL PENALTIES.-Seatlon 

llOCa)<l) of the Hazardous Materials Trans· 

portatlon Act <49 App. U.S.C. 1809(a)U)} is 

amended-

(!) by striking "(except an emploYee who 

acts without knowledge)"; 

C2l by striking "knowingly" each place it 

appears; 

<3) by striking "title or of a" and inserting 

In Ueu thereof "title, or an order or"; 

<41 by inserting "order or" immediately 

after "violation of any" each place it ap. 

pears; and 

<5> by strJk.ing '"$10,000" each place it ap... 

pe8J'3 and inserting in 1leu thereof .. $25,000 

and not less than $250" _ 

(b) CBIMIN/U. PENALXIEs.-Subsection (b) 

of section 110 of the Hazardous Materials 

Transportation Act (49 App. U.S.C. 18091 is 

amended to read as follows: 

"(b) CammAL.-A person who knowingly 

violates section 105([) of this title or willfully violates a provision of this title or an order or regulation Issued under this tltle 

shall be fined under title 18, United States 

Code, or imprisoned for not more than 5 

years, or both.''. 

CONFORMING AMENDMENX 

SEC. 9. Section 11Hb1 of the Hazardous 

Materials Transportation Act (49 App. 

U.S.C. 1810Cb)} Is amended by striking the 

second sentence. 

l"RANSPOR1'A1'10N OF CERTAIN HIGHLY 

RADIOACTIVE MATERIALS 

SEc. 10. The Hazardous Materials Transportation Act <49 APD- U.S.C. 1801 et seq.) is 

amended by redesignating section 115 a.s section 118, by strlklng sectlon 116, and by 

inserting immediately after section 114 the 

following new section: 

""tRANSPORTATION OF CER'XAIN HlGlJLY 

RAD!OACl"IVE MATERIALS 

"SEC. 115. (a) DEDICAmD TRAINS.-Withln 

120 days after the date of enactment of this 

section, the SecretarY shall issue regula~ 

tlons, ln accordance with this section and 

pursuant to section 105 of this title. with re- spect to the transportation by raU of highlevel radioactive waste and sgent nuclear 

fuel. Such regulations shall prohibit any 

transportation of such ma.terin.Is by rail. In· 

clndlng sblpments of such materials made 

by or under the direction or supervision of 

the Department of Energy or the Department of Defense, unless such materials are transoortcd on trains ocerated excluslvelY 

for such purpose. The Secretary shall establish effective procedures for monitoring and 

enforcing the provisions of such regu1attons. 

(b) Mane AND RoU'rE SELECTION.-The Setr 

retary shall, wlthtn 12 months after the 

date of enactment of this section, issue 

standards for the selection of shipping 

modes and routes used for the transportation of high-level radioactive waste and 

spent nuclear fuel. Such standards shall be 

developed in consultation with all potentialIy..affected States and Indian tribes and 

after notfce and opportunity for public com· ment, and shalllnclude but not be lbnlted to 

requirements that enhance overall publlc 

safety, taking into consideration population 

densities, types [of highways,] and conrti· 

lions of modal infrastructures (including 

highways, ra.ilbeds, and watenaays), quantities of hlgh·level radioactive waste and 

spent nuclear fUel, emergency response capablllties, exposure and other risk factors. 

terrain considerations, continuity of routes, 

[and] a.vaila.ble alternative [routes includ· 

ing] routes, environmental itnPact [factors] factors, and such other factors rrelat· 

ed to alternative routes as the secretary 

considers approp1·la.te.] as may be necessary 

ta facilitate selection of shi:P:Ping modes and 

routes by the Secretary. 

"(C) RE:QUIR&D CER'l'I'E'ICATION OF PACKAGES.-(!) The Secretary shall not permit 

transportation of high-level radioactive 

waste or nuclear spent fuel except in pack· 

ages or containers that have been certified 

for such transportation by the Commission. 

"<21 As part of the process of certifying 

any package or container referred to in 

paragraph <1), the Commission shall require 

the performance of actual testing on a sample full-scale package or container, in 

addition to any -Simulated testing. testing on scale models, or engineering a.nalysls, 

"(d) DEFINITIONS.-As USed ln this section, 

the term-

"(1) 'CoiiUlUsslon' means the Nuclear Reg· 

ula.tory Commission; 

"{21 'high-level radioactive waste' has the 

meaning given such term in seation 2(12) of 

the Nuclear Waste Polley Act of 1982 (42 

U.S.C. 10101<12)); and 

"'(3) 'spent nuclear fuel" has the meaning 

given such term in section 2(23) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 

IO!Ol<23Jl." 

EMERGENCY RESPONSE PLANNING AND TRAINING 

GRANXS 

SEC. 11. The Hazardous Materials Transportation Act (49 App. U.S.C. 1801 et seq.), as amended by this Act. fs further amended 

by inserting immediately after section li5 

the following new section: 

"'EMERGENCY RESPONSE PLANNING AND 

TRAINING GRANTS 

"SE:c. 116. {a) A1lTHOBI1'Y To MAKE 

GRAN'tS.-<ll The Secretary shall ma.k:e 

grants beginning not later than 1 yeu after 

the date of enactment of this section to 

States and Indian tribes to enhance plan· 

nlng for responding to emergencies involv· 

lng transportation of hazardous materials 

and for training oubllc sector persotmel 

used for such response. 

"(2l The Secretary may not make a grant to n State or Indian tribe under this section 

unless such State or Indian trlbe agrees that 

the aggregate expenditure of funds of the 

Sta.te or Indian tribe, exclusive of Federal 

funds, for training public sector personnel 
October 23, 1990 CONGRESSIONAL RECORD-SENATE 33335 

But, I am happy to say that this leg- islation as reported from committee 

will correct that problem. And, this 

amendment will go a step further, pro~ 

viding the States with a small amount 

of money to help them do the job. The States want to be Involved and 

they should be involved. 

In 1986, 14 cars of a CSX train derailed in Miamisburg, OH, igniting a load of white phosphorus that burned 

for 4 dayS; 50,000 people were evacuated from their homes. 

Two years later, two CSX tank cars 

carrying highly flammable butane derailed in downtown Akron, OH; 2,000 people were evacuated. I visited the ac- cident site. It was a major disaster. 

Last year, a derailed tanker car 1n 

Freeland, MI. burned for 5 days; 2,000 people were forced out of their homes. 

The list goes on. Another train carrying 34,000 gallons of liquid chlorine 

and sodium hydroxide derailed in columbus, OH, just 2 weeks agO. A train 

derailed in the exact same location 2 

Years before. 

It is time the States were brought into the process of ensuring rail 

safety. This bill and this amendment 

will do just that, Mr. President. I urge 

my colleagues to support the amendment. 

The PRESIDING OFFICER. The 

question is on agreeing to the amendment. 

The amendment CNo. 3122) was 

agreed to. 

Mr. LEAHY. Mr. President, I move 

to reconsider the vote by which the 

amendment was agreed to. 

Mr. KASTEN. I move to lay that 

motion on the table. 

The motion to lay on the table was 

agreed to. 

Mr. EXON. Mr. President. I rise 

today in support of passage of a.n important and long-sought-after piece of 

legislation, S. 2936, the Hazardous Materials Transportation Safety Improve- ment Act of 1990. This bill is the prod- uct of a yigorous debate which has focused on ways to improve the safety of 

hazardous materials [hazmatl transportation and has been going on for at 

least the past three Congresses. The 

current statute, the Federal Hazardous Matelials Transportation Act, has 

not had any substantial revisions since 

its enactment in 1975. On July 30, 1990, S. 2936 was unanimously ordered 

reported by the -Senate Conunerce 

Committee. 

In July of this year, the Surface 

Transportation Subcommittee held a hearing on hazmat reauthorization. 

This hearing followed a series of hear· 

ings held on this subject during the 

100th Congress and revealed a growing 

consensus by the interested parties on many central issues. The bill we are 

considering today, s. 2936, builds on the areas where agreement has been 

reached. Included within this leg!sla- tion are numerous provisions designed 

to strengthen the Federal hazardous 

materials transportation program. These .Provisions include: First. increasing the Federal safety-inspection force by 30 additional inspectors; second, requiring safety permits for those hazardous materials posing the 

greatest risk during transit; third, imposing a minimum civil penalty of $250 for violations of the hazardous 

materials laws and increasing the maximum penalty to $25.000 per violation 

per day; fourth, providing for the use 

of single-purpose, dedicated trains for 

the transportation bY rail of high·level radioactive waste and spent nuclear 

fuel; fifth, requiring the Secretary of 

Transportation to make planning and 

training grants for responding to 

emergencies involving hazardous materials tc states and lndian tribes 

meeting certain requirements; sixth, mandating that 75 percent of the 

funds from these grants be allocated 

by the States to local communities; seventh. prohibiting motor carriers re- ceiving an unsatisfactory rating from 

transporting hazardous materials: 

eighth, requiring the Department of 

Transportation to initiate a rulemaking on the need to establish a registra· tion program for carriers, shippers, those who store in transit, who manufacture, recondition or are otherwise 

involved With containers used to transport hazardous materials; and ninth, extending the Federal participation 

program for State rail safety inspec- tors to include hazardous materials. 

I am delighted that the many parties involved in this issue have helped develop a consensus on many of the pro- visions contained in this bill. I believe 

that the Hazardous Materials Trans· 

portation Safety Improvement Act of 

1990 is a long-needed and gaod meas· 

ure which warrants the President's 

signature. This legislation is very much in the public interest as a tool to 

strengthen the- wa:t we govern the 

transportation of hazardous materials, as well as allow for increased training for those who are charged with pro· tecting the safety of our citizens. r urge my colleagues to support passage of S. 2936. 

Mr. DANFORTH. Mr. President, I 

urge my colleagues to support S. 2936, as amended, which would reauthorize 

the Hazardous Materials Transporta- tion Act. 

This is important legislation for the 

people of Missouri. Missouri lies at the 

transportation crossroads of the 

Nation. Kansas City is the second 

busiest railroad hub in the Nation, followed by St. Louis. No fewer than five 

interstate highways cross the State of 

Missouri. 

Missourians cannot escape the fact 

that maJor transportation activity 

means major hazardous materials ac- tivitY. Two-thirds of all hazardous materials shipped in the United States are transported by rail or by trucks. 

Barges, traveling on rivers like the 

Mississippi and the Missouri, carry the 

third largest amount of ha2iardous 

goods. 

In April1989. Senators BOND, KASSEBA.UM, and I introduced s. '128, the 

Hazardous Materials Transportation Amendments of 1989. l'his simple, straightforward bill was written to address directly the serious safety con· 

cerns raised by our constituents in 

Kansas and Missouri. 

It also addressed lessons learned 

from our experiences with the rail 

shipment of radioactive wastes from 

the damaged Three Mile Island nucle- ar power plant in Pennsylvania to the 

Department of Energy's research 

center in Idaho Falls, Idaho. 

I am pleased that S. 2936, as amended, addresses many of the same issues 

addressed by S. '128. Specifically, S. 

2936 includes the following: 

1. A S'l'UDY AND RULEMAltlNG REGARDING 'l'HE 

USE OF DEDICATED TRAINS 

Currently, shippers ~an decide to 

transport railcars carrying high-level radioactive materials on umixed" 

trains, transporting everything from 

dangerous chemicals to grain. The 

choice to ship Three Mile Island nu~ 

clear wastes from PennsYlvania to 

Idaho over the past several years by single-purpose, or "dedicated," trains 

was done as a matter of policy. S. 728 would have directed the Secretary of Transportation to issue regu- lations making dedicated trains man· 

datory for the shipment of high-level radioactive wastes and spent nuclear 

fuel in order to ensure public safety. S. 

2936, as amended, directs the Secre· 

tary to compare the safetY of using regular trains with the safety of using dedicated trains under various circumstances, and to use the resUlts of that 

studY to issue rules requiring the use 

of dedicated trains as necessaxy for 

public safety. 

2. DETERMINATION BY THE DEPARTMENT OF 

'l'RANSPORTATION IDO'r-1 OF FACTORS '1'0 BE 

TAKEN INTO CONSIDERATION 1N SELECT.oNG 

THE SAFEST MODES AND ROU'l'ES FOR l'RANS• 

POR'HNG HIGH-LEVEL RADIOACTIVE MA'l'ERIALS 

AND SPENT NUCLEA-R FUEL 

Decisions on modes and routes for 

nuclear shipments now are made at 

the whim. of the shipper, who often is 

more concerned about cost than 

safety. S. 728 would have required DOT to issue guidelines for shippers and caniers to consider when selecting routes and modes for shipping high· level radioactive wastes and spent nuclear fuel. S. 2936, as amended, re- quires DOT to determine which factors, if any, must be considered by carriers and shippers in order to select 

routes and modes that enhance public safety.ln psrticular, DOT must assess 

the degree to which various factors 

affect public safety. These factors include population densities, emergency 

response capabilities, exposure and 
* 

33336 CONGRESSIONAL RECORD-SENATE October 23, 1990 

other risks, terrain considerations, and 

potential environmental impacts along alternative highway or railroad routes. 

a. AUTHORIZATIO:ti Of' 20 DOT INSPEC'l:ORS DEDICATED TO SAFE 'l'RANSPOE.l."ATION OF RADIOACTIVE MATSR!ALS 

When this legislation was introduced 

last year, DOT's only nuclear transportation safety inspector had just left 

the Department. This was especially disturbing in view of the fact that between 100 and 300 shipments of high- level radioactive waste and spent nu- clear fuel are transported annually. 

Thousands of low-level radioactive 

shipments. many of them for medical or research purposes, also are being shipped each year. 

We don't lmow how many of these 

shipments are inspected. Transportation safety generalists at the Federal 

level inspect some of them; state and 

local inspectors inspect others. Both S. 

728 and S. 2936 contain an identical 

provision, similar to legislation first introduced by Senator KAssEBAUM 

during the lOOth Congress~ which 

would ensure that all high-level radioactive shipments are inspected at 

point of o-rigin, and that lower-level ra- dioactive shipments are checked regu- larly. 

4, MANDATORY PERMITS FOR MOTOR CARRIERS 

:I'RANSPORTING CERTAIN HAZABDOUS UA'l'EIUIILS 

DOT does not ha\re a complete list 

of motor carriers who transport vari- ous hazardous materials, nor can it tell 

which ones operate safely. This provision. which is the same in both S. '128 

and S. 2936, would require motor carri- ers to obtain a federal permit to transport certain highly dangerous cargoes: 

Class A orB explosives, materials that are extremely toxic by inha.laticn. or certain radioactive materials. Carriers 

who fail to comply with the law would 

lose their permits. Shippers could use permitted carriers only. 

5, RETENTION OF PLACARDING ON PACKAGE'S OR 

CONTAINERS UNTIL ALL HAZARDOUS MATERI· 

ALS HAVE BEEN REMOVED 

On November 29, 1966, six Kansas 

City firemen were killed when the 

arson-caused fire they were fighting 

caused the violent explosion of an un- marked truck trailer parked at a highway construction site. Because the 

trailer·s hazardous materials warning placards had been removed, the fire~ 

men were wtaware that it contained over 25~000 pounds of explosives. Both 

S. 726 and S. 2936 would require packages, containers or vehicles containing 

hazardous materials to remain plac· arded until their dangerous contents are gone. 

6, DELETION OF "KNOWINGLY" FROM THE CIVIL 

PENALTIES SEC'IIC.N Oi' :t'HE HAZARnOUS MATE· 

RIALS 'l'RANSPORTATION AC'l' 

The Hazardous Materials Transpor- tation Act imposes a civil penalty upon 

anyone who "knoWingly commits" a 

violation of the Act or its regulations. 

The DOT always has interpreted the 

term "knowingly" to mean that a 

person knew, or, in the exercise of rea- sonable care, should have known. of 

the facts constituting a violation. 

However. a U.S. district court recently rUled that DOT could nat levy pen- alties unless it could prove that the ac- tions involved "willful negligence," or a "reckless disregard for the probable 

consequences." If this standard pre· vails, DOT will be powerless to protect 

the public from careless transporters of hazardous goods, unless their viola· 

tions are especially egregious. 

It is obvious that the court's decision 

goes too far, seriously undermining 

DOT's existing enforcement efforts. 

Both S. 726 and S. 2936 would strike 

the word "knowingly" in order to 

allow DOT to continue to enforce the 

law. 

'l. ADDITION OF CIVIL OR CRIMINAL PENALTIES 

FOR VIOLII.TIONS OF DoT "COMPLIANCE ORDERS" 

DOT is authorized to issue compli- ance orders, but only the District 

Courts of the United States, upon peti- tion by the U.S. Attorney General, can enforce such orders. Both S. 728 and 

S. 2936 would authorize DOT to en· force compliance orders. 8. PEI.OillBITION AGAlNST TAl'.'tPSRING WITH 

HAZARDOUS MATERIALS SHil'MENTS 

During 1988, an improperly placarded car was hooked up to one of the 

Three Mile Island spent nuclear fuel 

trains as it was about to enter MissourL During the investigation of this incident, it was discovered that no provi- sion in the existing Hazardous Materials Transportation Act explicitly pro- hibits tampering with such shipments. 

Both s. 726 and S. 2936 provide civil 

penalties for any person, without 

lawful authorization, who tampers with markings, placards or documents 

required on a hazardous materials 

shipment, or with any package. con- tainer, motor vehicle, railroad car, aircraft, or vessel used for transporting hazardous materials. 

Legislation to reauthorize the Haz· 

ardous Materials Transnortation Act 

has not been enacted for 6 years. Enactment of S. 2936, as amended, would 

make hazardous materials transportation safer for Miswuri and for the 

nation. I urge my colleagues to join me in support of S. 2936. 

Mr. HOLLINGS. Mr. President. I 

urge my colleagues to support S. 2936, 

the Hazardous Materials Transporta· tion Safety Improvement Act. For more than 5 years, Congress has 

sought to pass legislation that would 

reauthorize and strengthen the Feder· 

al hazardous materials program. The 

Senate Commerce Committee, in this 

Congress and last Congress. has held numerous hearings on this issue, re- ceiving testb11ony from a wide variety 

of different sources and eXPerts. The 

Congressional Office of Technology 

Assesssment prepared a thorough 

report on this subject, at the request 

of the Com..11erce Committee. Clearly, this issue is important to many interested parties. and I believe this bill is 

one which everyone can accept. 

Through our hearings, meetings and 

deliberations, w~ have reached a con· sensus on this legislation which 

strengthens the Federal hazardous 

ntaterials transportation program. 

This bill increases fines for violations, 

requires safety permits for transporta· tion of certain hazardous materials, directs training for State and local emer· gency responders, and increases the 

number of Federal inspectors for haz· 

ardous materials, just to name a few 

provisions. Mr. President, I believe 

this bill is a good one, and a necessary one. I urge all my colleagues to sup. 

port this legisl3.tion. 

Mr. KASTEN. Mr. President, the 

Department of Transporation estimates that over 6,000 hazardous mate· 

rial transportation incidents occur on U.S. highways each year involving 

trucks. That is 16 incidents per day. 

An incident is an event or occurrence 

which would include a vehicular acci· 

dent and/or release of a hazardous 

material into the environment. These 

figures are conservative because they only involve hazardous materials 

moving under DOT regulations. 

Highway accidents involving cargo 

tank trucks pose a particularly serious 

threat to public health and safety 

mostly because of the potential release 

of large quantities of hazardous materials. Life, property, and the environment are at risk with an accident such 

as we saw in Bhopal. The types of ma- terials transported in bulk, 5,000 gallons or more, include such potentially 

dangerous substances as gasoline, 

acids, and chemicals which are toxic 

by inhalation or produce explosive 

gases. 

In the reauthorization of the Hazardous Materials Transportation Act, 

the Secretary of Transportation is di· 

rected to conduct a study which, I be--

lieve, has the potential of improving the safe transportation of bulk quantities of hazardous matelials. by requiring the shippers o! those hazardous 

materials to be responsible for selecting safe motor carriers. At the present 

time, many shippers base their selec· 

tion of motor carriers primarily on who has the lowest price. The carrier's 

safety record, emergency response ca- pabilities, maintenance of its equlpment. training of its personnel and its 

insurance coverage are not taken into 

account by most shippers. This must 

change. 

Frankly, my preference was not to 

request the Secretary to conduct a study, but to offer an amendment cre- ating shared shipper-carrier liability in cases where there was an accident and a carrier with an Uilliatisfactory safety rating, or a con,ditional safety rating 

for more than a year, was involved I 

believe an amendment such as this 

would encourage shippers of hazard-
October 23, 1990 CONGRESSIONAL RECORD-SENATE 33339 

leased white phosphorus which ignited, destroying three tank cars, darnag. 

ing adjacent equipment and track. and 

requiring extensive cleanup of con- taminated soil. ApproximatelY 2,500 

people were evacuated for over 5 hours 

because of the accident. 

Most recently~ western Pennsylvania 

has suffered two more rail-related ac- cidents that were associated with hazardous materials and resulted in the 

evacuation of nearby residents. On November 19. 1989, 6 cars of a 91-car 

mixed consist derailed near Adrian, 

PA, one of which, a tank car containing flammable methyl methacrylate 

was punctured necessitating an evacuation of some 30 nearby residents. 

Again, on April 22, 1990, 29 cars of a 97-car train traveling near CraigsVille, 

PA, derailed causing 2 tank cars that were loaded with crude oil to catch 

fire, prompting the evacuation of some 

200 local residents. Subsequently, one of the derailed tank cars released approximately 16,000 gallons of product 

into Buffalo Creek, which flows into 

the Allegheny River a major source of 

water to western Pennsylvall.ia. 

In light of the growing concern in 

the Commonwealth of Pennsylvania 

regarding the many rai.l accidents in 

western Pennsylvania during 198'1, I 

joined Senator HEINZ and Representative GAYDOS on August 24, 198'7, in re- questing the General Accounting 

Office (GAOl to assess railroad safety 

in Pennsylvania and throughout the 

Nation, and to review FRA's inspection and enforcement policies. GAO 

completed its assessment raising a 

number of issues and concerns, many 

of which I have addressed ins. 581. 

Mr. President, rail safety is not a localized problem. I believe the track 

and equipment problems in western 

Pennsylvania are representative of the 

situa.tinn nationwide. The Congressional Research Service CCRSJ reports 

that in 1986 alone, approximately 842 

train incidents nationwide involving 

hazardous materials were reported to 

the Department of Transportation. 

The General Accounting Office re· ports that in 1986, 39,701 people were evacuated from their homes nationwide as a result of accidents involving 

hazardous materials. The GAO further advises that in 1987 alone. there were 8,816 railroad accidents and inci· 

dents nationwide resulting in 1,107 

deaths, 6,585 Injuries, and over $180 

million in damages to railroad property. 

Mr. President, transporting hazard· ous materials by rail obviously involves risk. While it is not realistic to 

expect an accident-free industry. nev- ertheless we have a responsibillty to 

reduce obvious hazards and make the 

system as safe as possible. 

As I indicated several provisions con· 

tained in this bill before the Senate 

today are similar to provisions of my 

bilL Specifically, these provi.sions will 

require that shipping papers regarding In addition, my blll would authoriZe 

hazardous materials present in the the Federal Railroad Administration 

shipment be available on board trains to double its number of hazardous rna- transporting hazardous materials. terials track inspectors to assist in car- With disclosure of this information ryjng out the track and train inspec· 

upon request by local emergency per- tions. Similarly, S. 2936 provides 30 

sonnet Also, the legislation will re- new hazardous materials htspector to 

quire that a telephone number be pro- further advance the effort to ensure 

vtded on the shipping papers for the that hazardous materials are transpurpose of obtaining more specific ported as safe as possible. 

handling of t.he material being Mr. President, I congratulate the 

shipped. Another integral Part of the legisla- Commerce Committee in crafting this 

tion which is similar to my bill in- legislation. The bill offers reasonable 

volves the use of placards~ which des- and practical solutions to advance the 

ignate the type of hazardous material safety of transportation of hazardous 

that is being transported Following materials across all modes of surface an accident. it is rnost important to transportation nationwide. Accordingproperly identify the substance which ly, I my urge my colleagues to support 

may ha.ve leaded and caused subse- this comprehensive effort to create a 

quent adverse public hea.ltll effects. safer system for the transportation of 

Therefore. the bill states that it is un- hazardous materials. 

lawful for anY pemon to willfullY alter, The PRESIDING OFFICER. Withremove, deface, destroy, or tamper out objection, the bill is deemed read a with any placard involved In the trans~ third time and passed. 

portatlon of hazardous materials. -~S~o~t~he~b~i~li~<S:.·~29~3::6:), as amended. 

The '3AO report requested by Sena- was passed. 

tor- HEINz. Representative GAYDOS, <The b1U S. 2936, as passed, will 

and myself noted the lack of enforce-- appear in a subsequent issue of the 

ment of FRA rules and regulations REcoRD.) 

and the lack of use of civil penalties. Mr. LEAHY. Mr. President, I move Therefore, my bill included provisions to reconsider the vote by which the 

to create a unifonn civil penalty for bill, as amended, was passed. 

violations of the Federal safety laws Mr. KASTEN. I move to lay that 

with a maximum penalty of $10.000 motion on the table. 

per violation, a minimum of a $500 The motion to lay on the table was penalty, and a penalty for gross negli~ agreed to. 

gence of $20,000. The legislation reported from the Senate Commerce 

Committee proposes to increase the 

maximum civil penalty from the cur- rent $10,000 to a new maximum of 

$25,000 per violation per day, and a minimum civil penalty of $250. 

Mr. President, local fire a.nd police 

department personnel are usually the 

first to respond to a hazardous material transportation accident. therefore, 

training of these individuals is and 

should be a high priority. The Con· 

gress• Office of Technology Assessment estimates that of the 2 milllon 

emergency response personnel, '15 percent are unprepared to deal with a.cci~ 

dents involving hazardous materials. 

The National Fire Academy reports 

that of 1.2 million firefighters, ap· 

proxtmately 85 percent are volunteers 

and do not have the sufficient financial resources to take advantage of 

available training programs. 

In response, I have proposed in my 

bill to address the importance of 

proper training of emergency response 

teams through emergency response 

planning and training grants. Similarly, S. 2936 provides grants to States to 

enhance training of emergency re- sponse personnel. The provision re- quires authorities to submit }Jlans to 

the Secretary of Transportation which 

will foster and promote the development and training of regional emergency response teams. 

SILVER COIN PROOF SETS ACT 

Mr. LEAHY. Mr. President, I also, 

on be hall of Senators BRYAN, 

McCLURE, and other Senators, ask 

unanimous consent that the Senate 

proceed to the immediate consider· 

ation of S. 3237, a bill to authorize the 

Secretary of the Treasury to sell cer- tain silver proof coin sets, introduced 

earlier today; that the bill be read for 

the third time. passed, and the motion 

to reconsider be 1aid upon the table. 

The PRESIDING OFFICER. Without objection, it is so ordered. 

So the bill CS. 323'1) was passed. 

<The bill S. 3237, as passed, will 

appear in a subsequent issue of the 

RECORD.) 

CORRECTION OF CONFEREESH.R. 5269 

Mr. LEAHY. Mr. President, I ask 

unanimous consent that a technic?.l error made in the appointment of con· ferees on the part of the Senate for 

H.R. 5269, the Comprehensive Crime 

Control Act, be corrected so that Sena· 

tors PELL and HELMS are listed a.s con· ferees for title XXVII of the bill. 

The PRESIDING OFFICER. With· 

out objection, it ls so ordered. 
Exhibit 7 
34168 CONGRESSIONAL RECORD-HOUSE October 25, 1990 

this subsection, training foreign researchers ATTENDANT ALLOWANCE 

and natural resource managers, cooperating ADJUSTMENT ACT 

with other forestry research institutions in 

the tropics, promoting research and Investl- Mr. MURPHY. Mr. Speaker. I ask 

gations by others at the Institute of Tropi· unanimous consent to take from the 

cal Forestry and the Caribbean National Speaker's table the bill (H.R. 3911) to 

Forest, shartng research, technical, manage. amend title 5 of the United States 

rial, and administrative expertise with other Code to increase the allowance for 

countries. 

<dl CARIBBEAN NA1'IDNAL FoREsT-Cl) The services of attendants, with a Senate 

secretary 1s authorized and directed to amendment thereto, and concur in the 

manage the Caribbean National Forest Calso Senate amendment. 

known as the Luqulllo Experimental Forest> The Clerk read the title of the bill. as a model for proper tropical forest ma.n- The Clerk read the senate amendagement for use in lnternatlonal outreach, ment, as follows: study~ tralnlng, and research. 

{2) The Secretary shall-construct, within 5 Senate amendment: Strike out all after 

years after the date of enactment of this the enacting clause a.nd .insert! 

Act. the necessary facilities in the carlbbe- SECTION 1, SllORTTlTLE. an National Forest for training and educatJon to accomplish the purpose of this Act. This Act may be cited as the "Attendant 

(e) INstiTUTE OF PACIFIC ISLANDS FOREST- Allowance Adjustment Act". 

RY-The Secretary 1s authoriZed and dfrect- SEC. 2. INCREASE IN AAIOUNT. 

ed to administer an Institute of Pacific Is- Subsection Ca> of section 6111 of tltle 5, 

lands Forestry in Hawaii. This Institute United States Code is amended by striking 

shall- out "$500" and inserting ln lieu thereof 

<ll conduct long-term. studies that include, .. $1,5BO". 

but are not llmlted to methods for slowing or reven;ing tropical deforestation on the is- SEC. 3

· EFFECTIVE DATE. 

lands of the Pacific Ocean: global a.tmos- The amendment made by section 2 shall 

pherlc and climatic change which shall in- take effect October 1, 1990, 

elude the Jnstallatlon of a monitoring The SPEAKER pro tempore. Is 

system on Pacific islands to monUor such there objection to the request of the 

change; the maintenance and protection of tl fr p 1 · • native wlldllfe populations on Paclflc is- gen eman om ennsy varua. 

lands; and economio uses of forests on Pacl!· Mr. GOODLING. Mr. Speaker, re- lc lslacds that sustain them as forests; and serving the right to object. I will not 

C2l conduct an international outreach pro· object, but I take this time to yield to 

gram that includes, but is not. limited to, the gentleman from Pennsylvania 

sharing the products and findings of there- [Mr. MURPHY] for any comments he 

search described in paragraph {1) of this 

subsection with other countries throughout might like to make at this time on the 

the tropics. legislation. 

(f) AssisTAifcll-In furtherance of this Mr. MURPHY. I thank the gentle· 

Act., the Secretary may provide interna.tlon- man for yielding. 

a1 assistance without reimbursement includ- Mr. Speaker. 1 am sure the gentle- ing, but not llmlted to, technology, training, information. equipment and .facD)ties. such man from Pennsylvania [Mr. Goonassistance shall not be provided to any coun- . LING] concurs in the Senate amendtry ineligible for assistance under Part I of ment. We passed this bill unanimously 

the Foreign Assistance Act of 1961. as in the House a couple of weeks ago. 

amended. The Senate merely made technical 

SEC. -t. CONSULTATION. corrections. It provides proper comIn order to assure a consistent and coordi~ pensation for 225 severely handtnated f-oreign policy and foreign assistance F d 1 k h h 

acUvitJ.es, as implemented by the Secretary capped e era wor ers w o ave 

of State. the secretary or AgricUlture shall been injured on the job. 

consult and collaborate with the Secretary Mr. GOODLING. Mr. Speaker, I 

of State and with the Administrator of the withdraw my reservation of objection. 

Agency for International Development in The SPEAKER pro tempore. Is 

carrying out activities 1n other countries. there objection to the request of the 

SEC. S. APPROPRL\TlONS. gentleman from Pennsylvania? 

There are hereby author.lzed to be appro· There was no objection. prlated such sums as may be necessary to 

carry out the purposes of this Act. A motion to reconsider was laid on 

The SPEAKER pro tempore (Mr. the table. 

McNULTY) (during the reading). With· 

out objection, the amendment in the 

nature of a substitute ls considered as read and will be printed in the RECORD. 

There was no objection. 

The SPEAKER pro tempore. The 

question is on the amendmeltt in the 

nature of a substitute offered by the 

gentleman from 'l'exas [Mr. DE LA 

GARZA]. 

There was no objection. 

The bill was ordered tu be engrossed 

and read a third time, was read the 

third time, and passed, and e. motion 

to reconsider was laid on the table. 

GENERAL LEAVE 

Mr. MURPHY. Mr. Speaker, I ask 

unanimous consent that all Members 

may have 5 legislative days Within 

which to revise and extend their remarks, and include therein extraneous 

material, on the Senate amendments 

to H.R. 3911. 

- The SPEAKER pro tempore. Is 

there objection to the request of the 

gentleman from Pennsylvania? 

There was no objection. 

HAZARDOUS MATERIALS TRANS· 

PORTATION SAFETY IMPROVE· 

MENT ACT OF 1990 

Mr. THOMAS A. LUKEN. Mr. 

Speaker, I ask unanimous consent to 

take from the Speaker's table tile 

Senate bill cs. 2936) to amend tbe Haz.. 

ardous Materials TraiiSportatlon Act 

to authorize appropriations for fiscal 

years 1990, 1991, and 1992. and for 

other purposes, and ask for its immediate consideration. 

The Clerk read the title of the Sentate bill. 

The SPEAKER pro tempore. Is 

there objection to the request of the 

gentleman from Ohio? 

Mr. WHITTAKER. Mr. Speaker, re· serving the right to object, while I will 

not object, I take this reservation for 

tile purpose of asking the gentleman 

frDm Ohio [Mr. THOMAS A. LUKEN] to 

explain the amendment to this bill. 

Mr. THOMAS A. LUKEN. Mr. 

Speaker, if the gentleman will yield, 

the legislation which we are considering today relates to a subject which af. 

fects each and every American. All of 

us are aware of the disasters and near 

disasters caused by the deadly chemi· 

cals which are regularly carried by 

truck. train, and airplane. through 

every State and city in our country. 

Today. it is conservatively estimated 

that 500,000 movements of hazardous 

materials occur each day, With over 4 

billion tons. moving. each year. The 

simple fact of the matter is that tbe 

potential for a Bhopal·on-wheels aeci· 

dent is ever-present on our Nation's 

streets, railroads, and airways. 

Last year, there were over 6,000 haz 

mat accidents. Over 165 persons were :injured and 17 were killed in these 

tragic accidents. These accidents 

caused damages of more than $21 million. But while hazardous materials 

transportation is increasing year in 

and year out, our laws have not kept 

pace With these developments. 

Fifteen years have passed since the 

passage of the Hazardous Materials 

TraiiSportatlon Act. Since that time, no major revisions to the original legislation have been enacted. In fact, au- thorizations for the act expired at the 

end of fiscal year 1986 and no congressional action has been taken to even 

reauthorize these important programs 

since such time. Congressional com- mittees have been talking about revis~ 

ing tbe Haz Mat Act for the last 8 

years, but until now no one ha.s been 

able to break the stalemate. Today we have an historic opportunity to break 

the deadlock and enact a comprehensive bill to Improve the laws which 

govern how hazardous materials are transported. 

Last October, I inLToduced the Uniform Safety Amendments Act of 1990 

to amend the outdated Hazardous Me.· 

terlals Transportation Act. This com· prehensive bill was the product of 
October 25, 1990 CONGRESSIONAL RECORD-HOUSE 34181 or under this subsection as may be neces- sary to cover the costs of the Department of 

Transportation ln processing such registra· 

tion statements. 

"(12) PROOF OF RF.GJ.STRATION AND PAYMENT 

oF FEES.-The Secretary may issue regulations requiring a person required to file a. 

registration statement by or under this subsection to maintain proof of the fUing of 

such statement and the payment of any fees 

assessed under this subsection and section 

111(hl. 

"(13} APPLICABlLl'IY OF INFORMATION MAN• 

AGEMEN'l REQUlREMENTS.-Chapter 35 of title 

44, United States Code <relating to coordination of Federalinfonnatton pollcy) shall not 

apply to activities of the Secretary under 

thts subsection. 

"(14) NONAPPLICABILITY TO EMPLOYEBS.-

Notwitbstand!ng any other provisi;:ms of 

this subsection, an employee of a hazmat 

emploYer Is not required to file a registration statement by or under this section. 

"(15) EXEMPtiON OF GOVERNMENT AGENCIES 

AND EMPLOYEEs.-Agencies Of the Federal 

Oovenunent. agencies of States, and agencies of political subdivisions of States, and 

employees of such agencies with respect to 

their official duties do not have to me reglst:ra.tlon statements under this subsection. 

"(d) MOTOR CARRIER SAFErY l'EaM:rrs.-

"(1) REQOIREMENT.-Except as provided in 

this subsection, a motor carrier may transport or cause to be transported by motor vehicle in commerce a. hazardous material 

only if the motor carrier holds a. safety 

pennlt issued by the Secretary under thls 

section a.uthorlzlng the transportation and 

keeps a copy of such pennlt, or other proof 

establishing the existence of such permit. in 

the motor vehicle used to provide such 

transportation. 

"(2) lsSUANCE.-Except. as provided in this 

subsection. the Secretary shall issue a 

safety penntt to a. motor ca.rt:ier authorizing 

that carrier to tl'.ansport or cause to be 

transported by motor veblcle in commerce a haZ&rdous material it tbe secretary finds 

that the carrier is fit, willing, and able-

"<A) to provide the transportation to be 

authorized by the permit; 

"<B> to comply with this title and the reg· 

ulatlons issued by the Secretary to carry out 

this title; and 

"(C) to complY with any applicable Feder· 

al motor carrier safety laws and regu).Btions 

and any applicable Federal minimum ftnanclal responslbtllty laws and regulations. 

"(3) SHIPPER'S RESPONSIBILITY.-Each 

person who offers a hazardous material for 

motor vehicle traru;portatton in commerce 

may offer that material to a motor carrier 

only 1! the carrier has a safety pennlt issued 

under this subsectlon authorizing such 

tl'llllS]lortation. 

"(4) Al!ENDMEN'r, SUSPENSION, AND REVOCA-

'J.'lON.-A sa.iety pennit issued to a motor 

carrier under this subsection may, after 

nottce and an opportunity for hearing, be 

amended, suspended, or revok:ed by the SecretarY in accordance with procedUI'es estabUShed under para.graph C6) whenever the 

Secretary determines that such arrler has 

failed to comply with a requirement o! this 

title, any regulation Issued under tills title, 

any applicable Federal motor carrier safety 

law or regulation, or any applicable Federal 

minimum financial responsiblllty law or regulation. If the SecretarY determines tha.t an imlnlnent hazard exists. the Secretary may amend~ suspend, or revoke tbe safety permit 

before schedullng a hea.rlng thereon. 

"<5> CoVERED nt.U~SPORTA'rlON.-The Secte· 

tary shall establish by regulation the hazardous materials and quantities thereof to 

which this subsection applies; except that 

this section shall apply, at a minimum. to 

all trs.nsporta.tion by a motor carrier of a 

class A or B exPlosive. a liquefled natural 

gas, a hazardous ma.terlal Which has been 

designated by the Secretary as el'.tremely 

toxic by inhalation, on a highway route contiolled quantity Of radioactive materials as 

defined by the Secretary. 

"(6) PRocEDUREs.-The Secretary shall es- ta.bUsb by regula.tlon-

"CA) application procedures. including 

form, content. and fees necessary to recover 

the full costs of administering this subsection: 

"(B) standards for detennfning the duration, terms, conditions, or llmltatlons of a. s&fety permit; 

"<Cl procedures for the amendment, suspension, or revocation of a .safety permit 

issued under this section; and 

"(D) any other procedures the Secretary 

deems appropria.te to Implement this subsection. 

"{'1) AP!'LICA'rlON.-A motor carrier shall 

file an appUca.tlon with the Secretary !or a. safety permit to provide trans-portation 

under this subsection. Tbe Secretary may 

approve any part of the application or deny 

the application. The application shall-

"<A> be under oath; and 

"(B) contain such information as the Secretary may require by regulation. 

"(8) CoNDI~ONs.-A motor carrier may 

'9TDVide transportation under a. safety 

pennit issued under this 5ubsecUon only if 

the carrier complies with such conditions as the Secretal'y finds are required to protect 

public safety.". 

(b) SAFETY PEaM:lTs.-Sectlon 106Cd) of the 

H8ZBI'dous Materials Transportation Act. re- lating to motor carrier safety permits, shall 

take effect 2 years after the date of the en- actment of this Act; except that the Secre· ~rY shall Issue regulations necessary to 

carry out such section not later than 1 year 

after such date of enactment. 

(c) REPEAL Oi' EXIS'rtNG PROGRAM.-Subsectlons <e> and (f) of section 106 of the Hazardous Materials Transportation Act <49 

u.s.c. 1805>. as redesignated by section 'I of 

this Act, are repealed effective March 31, 

1992. 

SEC. 9. EXEMPTIONS. 

Section 107(al (49 U.S.C. App. !806(a)l Is 

amended by striking "or renewal" in the 

fourth sentence. 

SEC. UJ. DEFINITION OF CER"TAJN MATERIALS, 

The second sentence of section 108(b) (49 

U.S.C. App. 1807Cb)) ts amended to read as 

follows: "The tenn does not Include any ma- terial which the Se...'"I'eta.ry determines is of 

such low order of radioactivity that when 

transported does not pose a. significant 

hazard to health or safety.". 

SEC. H. SEcRETARY'S POWERS. 

Section 109(dJ(l)(CJ (49 u.s.c. App. 

!808(d)(1J(Cll Is amended by striking "rec· 

onm:.end" and inserting "take ... 

SEC. !Z. PENALTIES. 

ta) CIVIL P'ENAL'l'IES.-Section 110(8.} (49 

App, u.s.C.l809(aJl Is amendedlll In paragraph Ul-

(AJ by striking "(except an employee who 

acts without knowledge)" tn the first sentence; 

<B) by striking "title or of a" In the first 

sentence and inserting "title, an order, or"; 

(C) by inserting "order or" after "violation 

of any" In each oi the second and third s:en~ 

tences; and 

<D> by striking "$10,000" In each of the 

second and third sentencP.s and inserting 

"$25,000 and not less than $250"; and 

<2) by adding at the end the following: 

"{3) AC'I'ING KNOW!NGLY.-For purposes of 

this section. a. pel'5on shan be considered to 

have acted knowingly lf-

"(Al such person has actual knoWledge of 

the facts giving rise to the violation, or "(B) a reasonable person acting in the circumstances and exercising due care would 

have sueh Jmowledge. ". 

(b) CRIMINAL E'ENALTIES.-5Ubsection (b) 

of section 110 (49 App. u.s.c. 1809J Is 

amended to read as follom: 

"{b) CRIMINAL.-A person who knoWingly 

violates section 105(f) of this title or wllliul· 

ly violates a provision of this title or an order or regulation Issued under this tltle 

shall be fined under title 18. United States 

Code, or imprisoned !or not more than 5 

yean. or both.". 

SRC. 13. RELATIONSHIP TO OTHER 1...\\YS. 

Section 112 (49 U.S.C. App, 1811) is 

amended to read as follows: 

"SEC. 112. RELATIONSHIP TO OTHER LAWS. 

"(a} IN GENERAL.-Except as provided in 

subsection <d> and unless otbei-wlse author· 

lzed by Federal law. any reqUirement of a State or political subdivision thereof or Indian tribe is preempted if-

"(1) compliance with both the State or political subdivlslon or Indian tribe requirement and any requirement o1 this title or of 

a regulation issUed under this title is not 

possible. 

"(2} the State or polltlea.l subdivision or Indian tl'lbe requirement as applied or en- forced creates an obstacle to the accom- plishment and execution of this title or the 

regulations issued under this title, or "(3) it is preempted under section 

105(&)(4) or section l05(b). 

'"<b) FEEs.-A State or politlcal subdivision 

thereof or Indian tribe may not levy a.ny fee 

In connection with the transportation of 

hazardous materials that is not equitable 

and not used for purposes relq.ted to the 

transportation of hazardous materials. including enforcement and the planning, development, and ntaintenanee of a ca.pabllit-.1 

for emergency response. 

"(e) D2l'EBI4INA'UON oF PREEMnto.N.- .. (1) ADMINIS'l'RA.TIVE DETERMINA'rlOlf.-Any 

person. including a Sta.te or political subdivision thereof or Indian tribe, directly affected by any requirement of a State or political subdivision or Indian tribe, may apply 

to the secretary. in accordance with regulations prescribed by the Secretary. for a detet'II1lna.tion of whether that requirement 1s 

preempted by section 105Ca.)<4> or 105Cb) or subsection (a}. The SecretarY shall publlsh 

notice or the application ln the Federal RegIster. Once the Secretary has publlshed 

such notice, no applicant for such determination by the secretary may seek relief 

with respect to the same or substnntially 

the same issue in any court untU the Secre· 

tai'Y has taken final action on the application or untn 180 days after filing of the application, whichever occurs first. The Secre~ 

tary, in consultation with States, poUtlca.1 

subdivisions, and Indian tribes, shall Issue 

regulations which set forth procedures for 

carrying out this paragraph. 

"(2) JUDICIAL DE'l'ERbSUiATIOlf,-Nothing in 

subsection (B.) prohibits a State or political 

subdivision thereof or Indian tribe. or any 

other person directly affected by any requirement of a state or politl~al subdivision. 

thereof or India.n tribe, from seeking a determination of preemption in any court of 
Exhibit 8 
35772 CONGRESSIONAL RECORD-SENATE October 26, 1990 

of the National Service Corps in my 

State. I will also improve the program's ability to meet the health care 

needs of the underserved across the 

country. 

The PRESIDING OFFICER. The 

question is on agreeing to the conference report. 

The conference report was agreed to. 

Mr. GRAHAM. Mr. President, I 

move to reconsider the vote. 

Mr. SIMPSON. I move to lay that 

motion on the table. 

The motion to lay on the table was 

agreed to. 

HAZARDOUS MATERIALS TRANS· 

PORTATION UNIFORM SAFETY 

Mr. GRAHAM. Mr. President, I ask: 

that the Chair Jay before the Senate a 

message from the Honse of Representatives on S. 2936. 

Tbe PRESIDING OFFICER laid 

before the Senate the following message from the House of Representatives: 

Resolved, That t!1e bill from the Senate 

cs. 2936) entitled "To amend the Hazardous 

Materials Transportation Act to authorized 

appropriations fer fiscal year 1990, 1991, 

and 1992, and for other purposes,'' do pass 

with the following amendment: . Strike out all after the enacting clause 

.and insert: 

SECTION 1. SHORT TITLE; REFERENCE: TABl.E OF 

CO!\"TENTS. 

Ca) SHORT TITLE.-This Act may be cited 

as 

otherwise specifically provided, wh•me·ver In this Act an 

amendment or repeal is expressed in terms 

of an amendment to, or repeal of. a section 

or other provision, the reference shall be 

considered to be made to a section or other 

provision of the Ha2ardous Materials Trans· 

partation Act. 

(c) TABLE OF CON:t:EN'l'S.-

Sec. 1. Short titiei reference; table of con~ 

tents. 

Sec. 2. Findings. 

Sec. 3. Definitions. 

Sec. 4. Federal regulations governing trans· 

portation of hazardous materi~ 

als. 

Sec. 5. Representation and tampering. 

Sec. 6. Disclosure. 

Sec. 7. Ha11dling of ha.zardou.s materials. 

Sec. 8. Hazardous materials transportation 

registration; motor carrier 

safety pennits. 

Sec. 9. Exemptions. 

Sec. 10. Definition of certain materials. 

Sec. 11. Secretary's powers. 

Sec. 12. Penalties. 

Sec. 13. Relationship to other laws. 

Sec. 14. Funding. Sec. 15. Transportation of certain highly ra· 

dioactive materials. 

Sec. 16. Inspectors. 

Sec. 17. Public sector training and planning. 

Sec. 18. Hazmat employee training grant 

pro-gram. 

Sec. 19. Railroad tank cars. 

Sec. 20. Application of Federal, State, and 

lo-cal law to Federal contractors. 

sec. 21. Railroad tank: car study. 

Sec. 22. Uniformity of State motor carrier transportation described in subparagrapll 

registration and permitting <Al. 

forms and procedures. u(3} DIRECTOR.-The term 'Director~ 

Sec. 23. Financial responsibility. means the Director of the Federal Emergen· 

Sec. 24. Federally leased commercial motor cy Management Agency, 

vehicles. "( 4) HAZARDOUS MATERIAL,-The term 'haz· 

Sec. 25. Improvements to hazardous materi- ardaus material' mean.• a substance or mateals identification systems. rial designated by the Secretary under sec· Sec. 26. Continually monitored telephone tion 104. 

systems. "<5> HAzMAT EMPLOYEE.-The term 'hazrnat Sec. 27. Shipper responsibility report. 1 • · dl 1 Sec. 28. State particlpe.tion in investigations emp oyee means an m ~v dual who is em- and surveillance. ployed by a hazmat employer and who in 

sec. 29. Retention of markings and placards, the course of the individual's employment 

sec. 30. Relationship to Federal Railroad directly affects hazardous materials transSafety Act of 1970. partatian safety as determined hy the SecreSec. 31. Effective date. tary by regulation. Such term includes an 

SEC. 2. FINDJNGS. owner.operator of a motor vehicle which 

The congress finds that- transports in commerce hazardous materi-

<D the Department of Transportation es- a1s. Such term includes, at a minimum, an 

timates that approximately 4 billion tons of individual who is employed by a hazmat em· 

regulated hazardous materials are trans- Player and who in the course of the individported each year and that approximately ual's employment- 500,000 movements of hazardous materials "!Al loads, unloads, or handles hazardous occur each day~ materials: 

{2) accidents involving the release of haz· "<B> reconditions or tests containers, 

ardous materials are a serious threat to drums, and packages reoresented for use in 

public health and safety, the transportation of hazardous materials; 

(3) many States and localities have en- "(C) prepares hazardous materials for 

acted laws and regulations which vary frotn transportation; 

Federal laws and regulations pert.ainlng to "!Dl is responsible far the safety of the 

the transportation of hazardous materials, transportation of hazardous mate1ials; or thereby creating the potential for unreason~ "CE> operates a vehicle used to transport 

able hazards in other jurisdictions and con· hazardous materials. 

founding shippers and carriers which at- "(6) HAZMAT EMPLOYER.-The term 

tempt to comply with multiple and conflict· 'hazmat employer' means a personing registration, permitting, routing, notifi· "!AJ{i) who transports in commerce hazcation, and other regulatory requirements, ardous materials, 

(4) because of the potential risks to life, .. (ii) who causes to be transported or 

property, and the environment posed by un- shipped in commerce hazardous materiais, 

intentional releases oi hazardous materials, or consistency in laws and regulations govern- ' "<UD who reconditions or tests containers, 

ing the transportation of hazardous materi· drums, and packages represented for use in 

als is necessary and desirable, . the transportation of hazardous materials; 

<5> in order to achieve greater uniformity and 

and to promote the public health, welfare. '"<BJ who utilizes 1 or more of its employand safety at all levels. Federal standards ees in connection with such activity, 

for regulating the transportation of ha2ard~ Such term includes an owner-operator of a 

ous materials in intrastate, interstate, and motor vehicle which transports in commerce 

forejgn commerce a.re necessary and desira- hazardous materials. Such term includes 

ble, any department, agency, or instrumentality 

<6> In order to provide reasonable, ade· of the United States, a State. a political sub· 

quate, and eost~effeetive protection from division of a State, or an Indian tribe enthe risks posed by the transportation of gaged in an activity described in subpara· 

hazardous materials, a network of adequate- graph <Al<D. <AlCii), or <AmiD. 

ly trained state and local emergency re- "('l) IMMINENT HAZARD.-The term 'immisponse personnel i.s required. nent hazard' means the existence of a condi· 

l7l the Office of Technology Assessment tian which presents a substantial likelihood 

has estimated that approximately 1,500,000 that death, serious illness, severe personal 

emergency response personnel need better injury. or substantial endangerment to 

basic or advanced training for responding to health, property, or the environment may 

the unintentional release of haZardous rna- occur before the reasonably foreseeable 

terials at fixed facilities and in transporta~ completion of an administrative hearing or Uon, and CSl the movement of hazardous materials other Ionnal proceeding initiated to abate the risks of those effects. 

in commerce i.s necessary and desirable to "{8) INDIAN TRIBE.-The term 'Indian tribe' 

maintain economic vitality and meet con- shall have the meaning given that term 

sumer demands, and shall be conducted in a under section 4 of the Indian Self-Determisafe and efficient manner. nation and Education Act {25 U.S.C. 450bl. 

SEC. 3. DEFINITIONS. "(9) MoTOR CARRIER.-The term 'motor 

(a) DEFINITJONS.-8ection 103 (49 U.S.C. carrier' means a motor common carrier, 

App. 1802> is amended to read as follows: motor contract carrier, motor private carri· 

"SEC. 103. DEFINITIONS. er, and freight forwarder as those terms are "For purposes of this title, the fallowing defined In section 10102 of title 49, United 

definitions apply: States Code. 

"(1) ADMINISTRATOR.-The term 'AdmlniS· "(10) NATIO"/U. RESPONSE TEAM.-The term 

tratar' means the Administrator of the En· 'National Response Team' means the na· 

vironrnental Protection Agency. tiona! response team established pursuant 

"(2) COMMERCE.-The term 'commerce' to the National Contingency Plan as estab- means trade, traffic, commerce. or transpor- lished under section 105 of the Comprehentation within the jurisdiction of the United sive Environmental Response, CompensaStates (A) between a place in a State and tian, and Liability Act of 1980. 

any place outside Of such State, or <Bl "(11) PEasoN.-The term 'person' means 

which affects trade, traffic, commerce, or an individual, firm, copartnership, corpora-
such person is requir::d l.o file with the Department of Transportation under this title 

and any other laws of the United States. 

"(10) DISCLOSDl!E.-The Secretary shall 

make a registration statement filed under 

this subsection available for inspection by 

any person. for a fee to be established by 

the Secretary; except that nothing In this 

sentence shall be considered to require the 

release of any information described in sec- tion 552{f) of title 5, United States Code, or which is otherwise protected bY law from 

disclosure to the public. 

"<lll FEES.-The Secretary may establish. assess. and collect such fees from persons 

required to file registration statements by 

or under this subsection as may be necessary to cover the costs of the Department of 

Transportation in processing such reglstra· 

tion statements. 

"(12} PROOF OF REGISTRATION AND PAYMENT 

OF FEES.-The Secretary may issue regulations requiring a person required to file a 

registration statement by or under this subsection to maintain proof of the filing of 

such statement and the payment of any fees 

assessed under this subsection and section 

117(h). 

"(13) APPLICABILITY OF INFORMATION MAN· 

AGEMENT REQUIREMENTS.-Chapter 85 of title 

44, United States Code <relating to coordination of Federal information policy) shall not 

apply to activities of the Secretary under 

this subsection. 

"(14) NONAPPLICABILITY TO EMPLOYEES.-

Notwithstandlng any other provisions of 

this subsection, an employee of a hazmat 

employer is not required to file a registration statement by or under this section. 

"(15) EXEMPTION OF GOVERNMENT AGENCIES 

Alll> EMPLOYEEs.-Agencies of the Federal 

Government, agencies of States, and agencies of political subdivisions of States. and 

employees of such agencies with respect to 

their official duties do not have to file registration statements under this subsection. 

u(d} MO'tOR CARRIER SAFETY PERMITS.-

"(1) REQUIJ<EMENT.-Except as provided In 

this subsection, a motor carrier may transport or cause to be transported by motor ve- hicle in commerce a hazardous material 

only if the motor carrier holds a safety 

permit issued by the Secretary under this 

section authorizing the transportation and 

keeps a copy of such permit. or other pl"oof 

establishing the existence of such permit. in 

the motor vehicle used to provide such 

transportation. 

"(2) lssuANCE.-Except as provided in this 

subsection, the Secretary shall issue u 

safety permit to a motor carrier autholizing 

that carrier to transport or cause to be 

transported by motor vehicle in commerce a hazardous material if the Secretary c:inds 

that the carrier is fit, wUling, and able-· 

"<Al to provide the transportation to be 

authorized by the permit; 

"<B> to comply with this title and the regulations issued by the Secretary to carry out 

this title; and 

"<Cl to comply with any applicable Federal motor carrier safety laws and regulations 

and any appl!cable Federal minimum .financial responsibility laws and regulations. 

"(3) SHIJ'PER'S RESPONSIBILITY.-Each 

person who offers a hazardous material for 

motor vehicle transportation in commerce 

may offer that material to a motor carrier 

only if the carrier has a safety permit issued 

under this subsection authorizing such 

transportation. 

"( 4) AMEIIDMENT, SUSPENSION, AND REVOCAnoN.-A safety permit issued to a motor 

carrier under this subsection may, after 

notice and an opportunity for hearing, be 

amended, suspended, or revoked by the Sec· 

retarl' in accordance with procedures estab· 

lished under paragraph (6) whenever the 

Secretary determines that such carrier has 

failed to comply with a requirement of this 

title, any regulation issued under this title, 

any applicable Federal motor carrier safety 

law or regulation, or any appl!cable Federal 

minimum financial responsibility law or reg· 

ulation. If the Secretary determines that an 

imminent hazard exists. the Secretary may 

amend, suspend, or revoke the safety permit 

before scheduling a hearing thereon. 

"(5) COVERED TRANSPORTATION.-The Secretary shall establish l!y regulation the hazardous materials and quantities thereof to 

which this subsection applies; except that 

this section shall apply. at a minimum, to 

all transportation by a motor carrier of a class A or B explosive. a liquefied natural 

gas, a hazardous material which has been 

designated by the Secretary as extremely 

toxic by inhalation, or a highway route con~ 

trolled quantity of radioactive materials as defined by the Secretary. 

"(6) PltOCEDUREs.-The Secretary shall es- tablish by regulation-

"(A) application procedures, Including 

form. content, and fees necessary to rea-over 

the full costs of administering this subsection; 

"(Bl standards for determi-g the duration. terms, conditions. or limitations of a safety permit; 

"(C} procedures for the amendment, sus--

pension, or revocation of a safety permit 

issued under this sectioni and 

"CD> any other procedures the Secretary 

deems appropriate to implement this subsection. 

"{7) APPLICATION.-A motor canier Shall 

file an application with the Secretary for a 

safety permit to provide transportation 

under this subsection. The Secretary may 

approve any part of the application or deny 

the application. The application shali-

"(A} be under oath; and 

"<Bl contain such Information a.s the Secretary may reqUire by regUiation. 

"(8} CONDITIONS,-A motor carrier may 

provide transportation under a safety 

permit issued under this subsection only if 

the carrier compiles with such conditions as 

the Secretary finds are required to protect 

public safety.". 

(b) SAFETY PERMITS.-Section 106(dl Of the 

Hazardous Materials Transportation Act, re- lating to motor carrier safety permits, shall 

take effect 2 years after the date of the en- actment of this Act; except that thf: Secretary shall issue regulations necessary to 

carry out such section not later than 1 year 

after such date of enactment. 

(C) REPEAL OF ExiSTING PROGRAM.-Subsectlons (el and (f) of section 106 of the Hazardous Materials Transportation Act ( 49 

U.S.C. 1805 l, as redesignated bY section 7 of 

this Act. are repealed effective March 31, 

1992. 

SEC. 9. EXE!IPTlONS. 

Section 107<a> (49 U.S.C. App, 1806(a)) is 

amended by strikln.g ••or renewal" in the 

fourth sentence. 

SEC. 10. DEFINITION OF CERTAIN l!ATERIALS. 

The second sentence of section 108(bl (49 

U.S.C. App. 1807(b)) is amended to read as follows: ''The term does not include any rna~ 

terial which the Secretary determines is of 

such low order of radioactivity that when 

transported does not pose a significant 

hazard to health or safety.". 

SEC. II. SECRETARY'S POWERS. 

Section 109(d)Ul(Cl (49 U.S.C. App. 

lB08(dJ(l)(C)) is amended by striking "recommend" and inserting "take". 

SEC. 1%. PENALTIES. 

(a) CIVIL PENAL~IES.-Section 110(8.) (49 

App. U.S.C. 1809(a)) is amended-

(lJ In paragraph Ul-

<Al by striking "(except an employee who 

acts without knowledge)"' in the first sen· tence; 

<B> by striking "title or of a" In the first 

sentence and inserting "title, an order, or"; 

<C> by Inserting "order or" after "violation 

of any" in each of the second and third sen- tences; and 

<DJ bY striking "$10,000" in each of the 

second and third sentences and inserting 

"$25,000 and not less than $250"; and 

<2l by adding at the end the .following: 

="(3) ACTING I<NOWINGLY.-For purposes of 

this section, a person shall be considered to 

have acted knowingly if- ~ 

"(A} such person has actual knowledge of 

the facts giving rise to the violation, or "(B > a reasonable person acting in the cir~ 

cumstances and exercising due care would 

have such knowledge.". 

(b) CRIMINAL PENALTIES.-8Ubsection (b) 

of secLion 110 (49 App. U.S.C. 1809> is 

amended to read as follows: 

"(bJ CRIMINAL.-A person who knowingly 

violates section 105(fl of this title or willfully violates a provislon of this title or an 

order or regulation issued under this title 

shall be fined under title 18, United States 

Code, or :imprisoned for not more than 5 

years, or both.". 

SEC. 13. REJ,ATIONSHIPTO OTHER LAWS. 

Section 112 (49 U.S.C. App. lBlll is 

amended to read as follows: 

"SEC. 112. R~LATIONSHIPTO OTHER LAWS. 

"(al IN GENERAL.-Except as provided in 

subsection (d} and unless otherwise author· 

ized by Federal law. any requirement of a 

State or political subdivision thereof or Indian tribe is preempted if-

"(1 > compliance with both the State or political subdivision or Indian tribe require· 

ment and any requirement of this title or of a regulation issued under this title is not 

possible, 

"(2) the State or political subdivision or Indian tribe requirement as applied or en- forced creates an obstacle to the accom- plishment and execution of this title or the 

regulations issued under th1s title, or 

"(3 l it Is preempted under section 

105<aJ(4l or section l05(b!. 

"(b) h'EES.-A State or political subdivision 

thereof or Indian tribe may not levy any fee 

in connection with the transportation of 

hazardous materials that is not equitable 

and not used for purposes related to the 

transportation of hazardous materiais, ineluding enforcement and the planning, development, and maintenance of a capability 

for emergency response. 

"(C) DETERMINATION OF PilEEMPTION.-

"{l) ADMINISTRATIVE DETERMINAl'ION.-Any 

person, Including a Stata or political subdivision thereof or Indian tribe, directly affected by any requirement of a State or political subdivision or Indian tribe, may apply 

to the Secretary, in accordance with regula· 

tions prescribed by the Secretary, for a determination of whether that requirement is 

preempted by section 1(}5(a)(4} or 105(b} or subsection Ca.). The Secretary shall publish 

notice of the application In the Federal Register. Once the Secretary has published 

such notice, no applicant for such determi~ 

nation by the Secretary may seek relief