# RECEIVED

JUN 232015



# u.s. DEPARTMENT OF

# TRANSPORTATIONHEARING DOCKET OFFICE OF HEARINGS WASHINGTON, DC

FEDERALAVIATION ADMINISTRATION, } 

### Complainant, } }

v. } 

### } FISHER SCIENTIFIC COMPANY, LLC, } 

### Respondent. } Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Goodwin



### MEMORANDUM IN SUPPORT OF MOTIONS TO DISMISS COMPLAINT FORINSUFFICIENCYAND FOR COMPLAINANT'S VIOLATION OF RULE 208

RespondentFisher Scientific Company, LLC, a subsidiary ofThermo Fisher Scientific, Inc., (hereinafterreferredto as "Fisher") movesto dismiss the Complaint inthe above-captioned civil penalty proceeding onthe following two independent grounds. First, the Complaintfails to state

a "knowing" violationfor which a civilpenaltymaybe imposed. Second, by including allegations that were fustmademore thanthree years afterthe allegedincident, the Complaint violates Rule 208(d) ofthe Federal Aviation Administration's (hereinafter "FAA's" or "the Agency's") Rules ofPractice ("Rules").

FAA's SouthernRegional Counsel ("Regional Counsel," "the Government" or "Complainant") makes, among others, two allegations concerning acts Fisher allegedly committed almostfour
years ago, onJuly 20, 2011, whenFisher shipped a single liter ofa corrosive liquidcommonly known as lye. First, Regional Counsel alleges thatRespondent "knowingly offered

... a shipment

... containing hazardous materials for transportationby air." Compl.**~** 

### 1. Second, Regional Counsel claims Respondent "violatedthe

... hazardous materials regulations" ("HMRs") because it "failedto ensure that [the bottle oflye was]

... packagedwithabsorbent materials

...." Compl.**~** 

### lO.c.

### Memorandum in Support of Respondent'sMotions to Dismiss



### Memorandumin Support ofMo_tiQnto Dismiss for Insufficiency

A provision inthe Hazardous Materials Transportation Act("HMTA"), Pub. LawNo. 93-633, 88 Stat. 2156,2160 (Jan. 3, 1975), codifiedas amendedat49 U.S.C. § 5123(a)(1) (2011), allows the Governmentto impose a civil penalty upon a "personwho knowingly committedan actwhich is a violation of" the HMRs (emphasis supplied). A laterrecodification made a non-substantive, editorial change. It

### rewordedthe sentence to say the Government may impose a civil penalty on

a "personthatknowingly violates" the HMRs. Nowhere inthe Complaint does Regional Counsel allege thatFisher "knowingly" committed any act whichis a violation ofany HMR. It 

### merely statesthatRespondent "knowingly offered" a declared shipment ofhazardous materials.

There are other, more specific allegations inthe Complaint, but none ofthem allege a "knowing" violation. In

### the example referenced above, Regional Counsel claims Respondent "violated" 49 C.P.R. § 173.27(e), butthere is no allegationthat Fisher "knowingly" committed any act which violates it. ThisparticularHMR applies certainpackagingrequirements to some hazardous materials shipments butnotto others. Inthis case, the bottle oflye was a "limitedquantity" shipmentthatwas exemptfrom the specificationpackagingrequirements and otherwise fully complied with all applicable HMRs. However, evenifone were to assume that§ 173.27(e) did apply to the shipment whenFisher offered it in2011 and that Fisher failed in some respect to comply with it or any otherHMR, the civil penalty statute, as amended bythe Hazardous Materials TransportationUniform Safety Act of1990 ("HMTUSA"), Pub. L. 

### No., 101-615, 104 Stat. 3244, 3259 (Nov. 16, 1990), codifiedat49 U.S.C. § 5123(a)(1)(A) and (B) (2011), unquestionablyrequires the Agency to allege and provethatFisher "knowingly committed an act which is a violation of'that or some other HMR.

Duringtwo Informal Conferences, Respondent noted Regional Counsel's failure to make any allegation that wouldjustifY imposition ofa civil penalty and objectedinwriting almost a year before Regional Counsel filed the Complaint. (Letterfrom J.W. Cox to W.P. Vines, Aug. 18, 2014) (Exhibit 2). Regional Counselrepliedthree months later with a letterthat cites an inapplicable statutory provision, 49 U.S.C. § 5123(c), andrelies on an Initial Decisionthat is inapposite, was reversed and that did not involve the issues presented inthe instant case. (Letter from W.P. Vinesto J.W. Cox, Nov. 20, 2014) (Exhibit 3)

Regional Counsel grossly misinterprets the keyprovisions ofboththe HMTA and the HMTUSA. More specifically, Regional Counsel expresses the mistaken conclusionthat "FAAneed only prove

... that anofferorknowingly offered

... a hazardous material- notthat the offeror knowingly offered

... [a shipment] that was inviolation ofthe hazardous materials regulations." Regional Counsel argues, essentially, thathazardous materials shippers are strictly liable for any departure from even the most indecipherably technical and poorly wordedrequirement that may appearinthe 1,100-plus pages ofHMRs,49 C.F.RParts 171-185. To the contrary, the HMTA

2

### Memorandum in Support of Respondent'sMotions to Dismiss



### unambiguously provides that only a "personwho knowingly committed an act whichis a violation of

... a regulation is liable

... for a civil penalty." 88 Stat. 2160. Contraryto Regional Counsel's interpretation, the laws do notimpose 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 oflegal scienter 

### Congress established inthe law. In order to showthat a "person acted knowingly," the Government must prove the person had "actual knowledge ofthe facts givingrise to the violation," 49 U.S.C. § 5123(a)(l)(A) or that "areasonable person

... exercising reasonable care" wouldhave "such [actual] knowledge [ofthe facts giving rise to the violation.]" !d. 

### § 5123(a)(1)(B).

Regional Counsel's letter seemsbarely to acknowledge the presence ofthe term "knowingly" by interpreting the scienter

### requirement to mean that a person is liable ifhe had or shouldhave had knowledge ofany

### fact on whichFAAbases part ofits argument thathe violatedthe HMRs. To the contrary, the civilpenalty provision can be read only to require the Governmentto showthat Respondentknew or shouldhave knownwhatever 

### facts wouldbe essentialfor the actorto determine whetherhis act was compliant.

The correctwayto interpret Congress' use ofthe 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 ofan offense, even ifto do so may pose some practical enforcementproblems. Flores-Figueroa

v. 

## US., 556 U.S. 646, 650 (May 4, 2009). Whatthe Governmentmust do in this case, therefore, is clear. The Agency must showRespondent eitherknew it committed an act which is a violationthe HMRs or that it wouldhave known that act violated the HMRs had it exercised reasonable care infollowing the regulations governing howthe subject shipment oflye was to be packaged.

Even ifthe civil penalty provision could not, by applying the normal rules ofEnglish grammar, bereadto require FAAto allege andprove thatRespondent committed some negligent act, Congress went out ifits way, inboththe HMTAin 1974 and the HMTUSA in 1990, to leave no doubtthatits intent was to establish and maintain a scienter

### requirement. Congressrequired the Government, at a minimum, toprove some act ofatleast simple negligence before itcould impose a civilpenalty for violating the HMRs.

The scienter

### requirement has existedfrom the day§ llO(a)(l) ofthe 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]

... 

### shallbe liable

... for a civil penalty." 88 Stat. at 2160. Fromthe beginning, U.S. Department ofTransportation enforcement agencies, including FAA, "interpretedtheterm 'knowingly' to mean that apersonknew or inthe exercise ofreasonable

3

### Memorandum in Support of Respondent'sMotions to Dismiss



### care, shouldhave known, ofthe facts constituting a violation." However, in 1986, a federal judgeruledthatthe termrequired the Govermnent to provethat a respondent acted with at least "reckless disregard" for the HMRs. 

### HazardousMaterials Transportation, Hearing Before the Subcommittee on Surface Transportation of the Committee on Commerce, Science and Transportation, S. Hrg. No. 101-955 (July 25, 1990), Statementby 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) (Exhibit4), at 5-6.

Soon afterthe 

### Southern Railway decision was summarily affirmed, Congress beganto consider amendmentsto reduce the level ofculpabilitythe Govermnent wasrequired to establishinorder
to impose a civil penalty for a hazardous materials violation. One approach, championed inthe U.S. Senate by Sen. John C. Danforth (R-MO), was to eliminatethe 

### scienterrequirement altogetherby deleting the word "knowingly" from§ 110(a)(1) ofthe HMTA. TheDanforth Amendmentwouldhave made a person strictly liable for a civil penalty ifhe "committed an act which is a violation ofa provision" ofthe HMRs. The Senate Commerce Committee and the full Senate approvedthe Danforth amendment as part ofa bill calledthe Hazardous Materials Safety ImprovementActof 1990 ("HMSIA"). 

### See Reportof 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 andpassage ofthe HMSIA, 136 Cong. Rec. 33328, 33330, 33335-36 (Oct. 23, 1990) (Exhibit 6).

Whenthe U.S. House ofRepresentatives tookup its own legislation, the HMTUSA, two House committees unanimously rejectedthe DanforthAmendment. The House was aware ofthe controversy overthe 

### Southern Railway decision and Sen. Danforth's effortto establish strict liability for committing anactthat violatedthe HMRs. Afterhearing testimony thatthe "impositionofpenalties

... for unknowing and unavoidable violations ofthe lawis contraryto

our concepts oflaw and equity

... [andthat it is

# Jinconsistent with outbasic legal and equitable concepts and standards

... [to impose] civilpenalties 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 cleartheir detenninationto rejectthe Senate's strict liability approach and maintain a 

### scienter requirement.

The HMTUSAwas reported outofcommittee withthe following, crucial explanation ofits new definition of"knowingly." "[T]he Committee intendsto coverviolations that are committed 

### negligently (as well as violations which are committedbypersons who have actual knowledge). The definition of'knowingly' is intended to negate any inferencethatthe term only encompasses actions based on actual knowledge orreckless actions

... [contrary to the holding in

### Southern Railway]. Under [H.R. 3520's]

... definition of'knowingly,' [DOT]

... will be ableto seekcivil penalties for actions or omissions that are committednegligently as well as those which are

4

### Memorandum in Support of Respondent'sMotions to Dismiss



### committed with actual knowledge

... in violation ofthe [hazardous materials]

... regulations

...." H.R. Rep. No. 101-444, Part 1 (Apr. 3, 1990) at46-47. (Exhibit 1)

The full House passedthe Committee-approved legislation. Ratherthan

### imposing strict liability when a person "committed an act which is a violation," the House retainedthe term "knowingly" and the scienter

### requirement established in§ llO(a)(l) ofthe HMTA. The House also approved the newlanguage to defme "knowingly" not to mean whatthe court declared inSouthern Railway 

### ("reckless disregard") butto mean "actual knowledge" that a personeitherhad or- by "exercising due care"- wouldhavehad. House consideration and passage ofthe HMTUSA, 136 Cong. Rec. 34168,34181 (Oct. 25, 1990) (Exhibit 7)

Ultimately, the Senate did notpass HMSIAwiththe Danforth strict liability amendment; instead, itpassedthe House bill, the HMTUSA, withits tweak onthe scienter

### requirement. Senate consideration and passage ofthe HMTUSA, 136 Cong. Rec. 35772, 35776 (Oct. 26, 1990) (Exhibit 8). The Presidentpromptly signed the House bill- and the modified defmition of "knowingly"- into law, 104 Stat. 3244, 3259 (Nov. 16, 1990).

Accordingly, becausethe Complaintfails to allege, at a minimum, thatRespondent committed

some act ofnegligence, it does not state a violation ofthe federal hazardous materials transportation statute or regulations and mustbe dismissed for insufficiency pursuantto Rule 218, 14 C.P.R.§ 13.218(£)(1).

Memorandumin Support**ofMoti()!ltoDislllissJOJ:Ass~rtinga__{;;l[liipAbout** 

### Which the GovermnentFailedto Give Timely Notice

As noted above, Regional Counsel claims Respondent "violatedthe

... hazardous materials regulations" inpartbecause it "failedto ensure that [the bottle oflye was]

... packaged with absorbent materials

...." The HMRs imposed no suchrequirement onthe shipment at issue in this case, but evenifone were to assume thatthere was arequirementfor packaging a limited quantity oflye with absorbent materials, Regional Counsel was obligatedto give timely notice thatthe Govermnentplarmed to base its Complaint onthat claim. Instead, Regional Counsel withheldthis allegation and gave Respondent no notice thatitintendedto raise it until FAA served an AmendedNotice ofProposed Civil Penalty ("the AmendedNotice") dated July 24, 2014. AmendedNotice-,[ f. This was the first Notice asserting this claim, and it was servednot withintwo years, as required, butmore than threeyears 

### after the alleged incident occurred.

Rule 208(d)(2) ofF AA's Rules provides, inpertinentpart, that thejudge "may dismiss the complaint orthatpart ofthe complaint alleging a violationthat occurred more than two years 

### before an agency attorney issued the notice ofproposed civil penalty" to the respondent "[i]fthe agency fails to show good cause for any delay

...." (Emphasis supplied.)

5

### Memorandum in Support of Respondent'sMotions to Dismiss



### Certainbasic facts surrounding the alleged July 20, 2011, incident and howFisher packagedthe shipment were established within days. The agency delayed almost two full years- until after July 3, 2013- to serve a Notice ofProposed Civil Penalty ("the Notice"). During anInformal Conference, counselfor Respondent pointed outto Regional CounselthattheNotice was expost facto, basedalmost entirely onHMRs that were notin effect in July, 2011. The Notice contained

no allegation whatsoever that Respondent was obligatedto include "absorbentmaterials" or that Fisherfailed to do so whenitpackagedthe lye. In

### fact, the 2013 Notice didnoteven mention "absorbent materials."

The Complaintnevertheless includes allegations thatfirst appeared inthe Agency's July 24, 2014, AmendedNotice. When Respondentpromptly objectedto Regional Counsel "springing" this completely newallegation intheAmendedNotice and FAA'snecessary reliance onitto support other claims against Respondent (Exhibit 2), Regional Counsel offered notone word explanation or excuse inresponse to Respondent's objectionthat the allegationwas out-of-time (Exhibit 3).

There is, in fact, no conceivable excuse or other good cause for Regional Counselto keep Respondent inthe dark aboutthe Agency's intended allegations for morethanthree years. To reward Regional Counsel's failure to give timely notice by allowing this case to proceedwould defeatthepurpose ofRule 208, grossly prejudice Respondent's opportunityto defend itselfand constitute a denial ofRespondent's due process rights under the U.S. Constitution.

WHEREFORE, Respondent respectfully movesto dismiss the Complaintonthe following two independent grounds: first, for insufficiencypursuantto Rule 218, 14 C.F.R. 

## § 13.218(f)(1); and, second, to dismiss the Complaint for violating Rule 208 pursuantto 14 C.F.R. § 13.208(d). Evenifthe Complaint is not dismissed outright oneither ofthe above grounds, thatportion of the Complaint alleging a failure by Respondentto include "absorbentmaterials" inthe packaging for the subject materials (i.e., all ofComplaint '1[10.c.) shouldbe stricken, as alternatively provided inRule 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



### OnJune 23,2015, the undersigned sentby air courier one copy ofthe foregoing Memorandumin Support ofMotions to Dismiss Complaint for Insufficiency and for Claimant's Violation ofRule 208 to each ofthe persons listedbelow.
[One Copy] William Vines, Esq. Regional Counsel, ASO-7 U.S. Department ofTransportation Federal AviationAdministration SouthernRegion 1701 ColumbiaAve. College Park, GA 30337

[One Copy] The Ron. Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Ave., S.E. (Ell-310) Washington, DC 20590 [Original and One Copy] Hearing Docket Clerk, AGC-430 FederalAviationAdministration Wilbur Wright Bldg., Suite 2W1000 600 Independence Ave., S.W. Washington, DC 20591

# Exhibit 1

## 101ST CoNGRESS } { 

## REPT. 

# 101-444 2d

# Session HOUSE OFREPRESENTATIVES

.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 oftheCongressional 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 thebill as amended do pass.
CONTENTS 

## The Amendment

............................................................................................................... Purpm;e 

## and Summary

.................................................................................................... 

## Background and Need for theLegislation

.................................................................. The Hazardous 

## Materials Transportation Act

................................................... 

## Federal Framework

................................................................................................. Selected

## Major Issues

........................................................,..................................... A. Relationship ofFederal 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) ofthe HMTA currently authorizes the Secretaryto 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 ofpotential statutory,regulatory, and administrative actions the Secretary may take and from which exemptions
maybe issued or renewed.
SECTION 12. SECRETARY'S POWERS 

# Section 109(d)(l)(C) ofthe HMTA currently provides that the Secretary shallconduct a continuing review ofall aspects ofhazardous 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 ofhazardous 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 ofthe bill enhances and clarifies the Secretary's authority to impose civil penalties by amending section 110 ofthe HMTA
to provide that knowing violations of the HMTA, or ofan 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 suchviolations throughthe courts. This change is 

# consistent with provisions ofboth 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 oforders issuedbythe Secretary underthe HMTA.

# 47 Currently, civil penalties ofnot more than 

# $10,000 for each violation may be assessed for violations. For continuing offenses, each day ofviolation 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 inthe statute. Section 13 amends section 110 ofthe HMTAby 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 personactinginthe circumstances, exercising 

# due care, woUld have such

**kiiowJ.ed~** 

# Currently, the term is

not defmed in the HMTA. 

# Byincluding 

# t provision, the Committee intends 

# to cover violations that are committed

**ne~it;[ently** 

### (as 

# well asviolations which are committedby persons whoave 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 "willfulnegligence" as a "recklessdisregard for the probable consequences of a voluntary act or omission." The Committee believes this decision is 

# contrary to the intent ofthe 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 transportationto comply withapplicableregulations and orders. Finally, this section provides that willful 

# violations of the HMTA, or orders or regulations issued thereunder, shallbepunishable by fines as 

# provided under title 18 

# ofthe 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 criminalpenaltystatutes.
SECTION 14. RELATIONSHIP TO OTHER LAWS


# Section 112 of the HMTA currently provides that any require·
ment ofa State or political subdivision thereof

# that is "not consist-

# Exhibit 22729 Gallows Rd., Suite 401 Vienna,VA22108



### William P. Vines, Esq. Office oftheRegional Counsel Federal Aviation Administration SouthernRegion P 0. Box 20636 Atlanta, GA 30320 August 18, 2014 (voice) 703-n?-5866 jtox@potomac.rtrategyasso&iates.tom



### by electronic mail



### Re: ThermoFisher Scientific- Case No. 2011S0700457- Amended Notice ofProposed Civil Penaltv ("ANOPCP") (7-24-14)- Informal Conference

DearWill:

Thankyou again for convening the Informal Conference ("IC") onthis matter onJuly 16, 2014. Whenitended, I was hopeful thatwehad cleared atleast some oftheunderbrush. I am sorry to
see all ofitis still there.
During the IC, wereviewed in detail the following three specific allegations FAAmade in an earlierNotice ofProposed Civil Penalty ("NOPCP"). I explained why each is based on nonexistentfacts ornon-applicable regulatory requirements. No one on the call from FAA offered 

## a single word

### to dispute our conclusions. Ratherthan either dropping these allegations or offering

somejustificationfor them, FAA chose to serve an Amended Notice ofProposed Civil Penalty ("ANOPCP"), dated July 24,2014. It repeats, nearly word-for-word, each ofthese indisputably baseless allegations.
First, FAA alleged in

## 4!4! "6" and "e" oftheNO PCP that Thermo Fisher Scientific, Inc. ("TFSI"), "failed to ensurefriction type closures were

... held inplace by positive means," but nofriction type closures were used orrequiredtobe used in the subject shipment. I thoughtyou agreed and withdrew any allegations ofviolations specifically related to such closures. I hadthe further impressionthatyou recognized thatthe subjectbottle was closed with a screw cap andthere was no requirementtouse "positivemeans" to secure screw caps at thetime the subject shipment occurred. Nevertheless, you made exactly the same allegations in

## 4!4! "7" and "e" ofthe ANOPCP. If

### somejustification forthese statements has occurred to you since our conversation, itwill be appropriateto re-address those subjects duringtheupcoming I

## C.

### Second, FAAalleged

**in~** 

### "a" oftheNOPCP that TFSI did not "properly class[or] describeD" the hazardous material contained inthe subject package. In

### fact, thepackage was properly declared and labeled as a "limited quantity" in full compliance with federal regulations applicable atthe time ofshipment. I understood youto say FAAneverintended to allege any violation concerningthe shipper's declaration forthe subjectpackage, yetyou repeated the allegation

**in~** 

### "a" ofthe ANOPCP

. Third, FAA alleged

**in~~** 

### "7" and "f' 

### ofthe NO PCP that TFSI "failedtouse a leakproofliner" There was no independentrequirement to use aleakproofliner with the subject shipment. I thought you agreed with that, as well.

FAArevealed during the July 16 IC thatithad notproduced investigativefiles to TFSI. You asserted that certain documents provide a factual basis for FAA'sfourth allegation, in 

## 'If "e," that it was the screw cap on the subjectbottle that leaked and that the cause ofsuch leakage was "loosening due tovibration or substantial changein temperature." WhileI am grateful to youfor sending some portion ofthe investigativefile, nothing init remotely supports any conclusion about eitherthe location orthe cause ofthe reported leakage. Duringthe upcoming IC, itwould be helpful ifyou can explain whatyou seeinthere that we do not see. Would you also please identify what otherportions ofthe file youhave not yet provided and FAA'slegal basis for continuingto withhold those materials?

In 

### any case, itlikely will be impossible to reach definitive conclusions on several importantfacts without examiningthebottle and otherphysical evidence ofthe events alleged in theNotice. TFSItherefore requests FAA to make those items available to usto inspect in advance ofour upcoming IC.

Itwas also disappointing to seeFAAraise a completely new allegation in the ANOPCP -more thanthree years afterthe events described in theNotice. FAAnow claims, in

## 'If "f' 

### ofthe ANOPCP, that TFSI was required to include "absorbentmaterial" in the subject packaging. It is grossly unfairfor FAAtomake up newclaims after so much time has passed. In any case, there is no substantive merit tothis belated allegation. We will explain whythat is true during the upcoming IC.

As was true with the earlierNO 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" thatthe subjectbottlewas "packed

... closed

... or designed" to preventleakage. Tothe contrary, TFSI exercised due care

- infact, wentto extraordinary efforts -toensure that the bottle was packed, closed and otherwise packaged and shipped in full compliancewith all applicable federal regulations. There is no basis whateverto claim that TFSI "knowingly" violated any such regulations or owes FAA

a civil penalty. The agency seems to recognize this, as ithas never alleged- not even in the AmendedNotice- thatthe company "knowingly" violated any requirements.

JZ&ST

### In light ofthe above, and tomaximize our chances ofresolving this case quickly, it would help if FAAwould please do the following to help focus ourupcoming discussion:
(1) Identify whatever documentary materials FAA continues towithhold. (2) Produce forinspection the referenced bottle, box and otherphysical evidence related to this case. (3) Issue a SecondAmended Noticethat accurately describes theNOPC it amends and deletes allegations you do notintendto pursue orthat aretime-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 ofTransportation

Federal Aviation Administration 

# ·_ c

CERTIFIED MAIL
Jerry W. Cox Potomac Strategy Associates 2729 Gallows Rd., Suite 401 Vienna, VA 22108 Southern Region Office ofthe Regional Counsel



### Re: Fisher Scientific Company, Inc. EIR# 2011S0700457



## 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 CivilPenalty ("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 itis an "informal"process, itis notintendedto be a full hearing ofthe matter.

Second, I would like to clarifY the format ofthe 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 ofthe specific regulations that the Administrator asserts have been violated by TFSI as a result ofthe allegations, ifproven true by a preponderance ofthe evidence.

Third, the factual allegations inthis matter allege a knowing offer ofa hazardous material which

wasreleased into the environmentbecauseitwas notproperlypackagedfor air transportation. A person acts "knowingly" in cases arising under the Federal Hazardous Material Transportation Act ("FHTMA") underthefollowing circumstancesprescribed in49 U.S.C. 

## § 5123(c):

"

...A person acts knowinglywhen- (A) the personhas actual knowledge ofthe facts giving rise to theviolation; or 

### (B) a reasonable personacting inthe circumstances and exercisingreasonable

care wouldhave thatknowledge."

## The FAAneed only proveby a preponderance ofthe evidencethat an offerorknowingly offered
for transportation ahazardous material- notthatthe offerorknowingly offeredfortransportation

a hazardous material 

## that was in violation ofthe hazardous materials regulations. 

## See FAA v. Gamache-Wortman, FAADocketNo. 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 aerialflares and shotgun shells for airtransportation. 

## 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 offeredviaUPS Next Day Air. Therefore, the
offeror

## had actual orconstructiveknowledgethat itwas offering a hazmat for airtransportation.

Fourth, the proposed sanction alleged in this matter is based onthe release ofa hazmat into the environment and a packaging failure. The sanction is derived withthe use ofthe 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, respondingparties, especially regular shippers ofhazmat, have found itinformative 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
supportthe amount attached to each category ($3250) and theproposed 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 ofthe shipment as appropriate. The Agency neither seizes nor stores hazardous
material shipments that are inspectedbytheAgency atair carrierfacilities.

Finally, though you are, ofcourse, 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 agencypolicy.

Please contact me to discuss a 

## mutually agreeable date to conduct the second informal


## conference. Yqumay reach me atthe above number orby email, William.Vines@faa.gov.



# Sinc~rely,\ \ 

# i 

# \

**-<y,~''\; ~-** 



# \~"' WILLif\MVINES Attorney Office oftheRegional Counsel

# Exhibit 4

### S. HRO. 101-955 

# HAZARDOUS MATERIALS TRANSPORTATION

HEARING

BI!.I'ORJ! Tl!E 

# SUBCOMMITTEEON SURFACETRANSPORTATION oP rna 

# COMMITIEE ON COMMERCE, SCIENCE, AND TRANSPORTATION UNITED STATES SENATE
ONE HUNDREDFIRSTCONGRESS SECOND SESSION
ON


### THE TRANSPORTATION OF HAZARDOUS MATERIAlS

JULY 25. 1990

Printed for theuscofthe 

### CommitteeonCommerce.Science, andTransportation

U.S.OOWB.NMEIITP!INliNOOI'FICI! W

ASHINO!pN: 1990

...... 1\.•"\.11

### 3 

### when he returns to Washington. Ifso, I would appreciate the wit

### nesses who are at the table now and any others who may come before thecommittee today to respond tothose questions as quickly as they can.

I also have a statement from SenatorDanforth for therecord. [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 knew 1 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 5101ST 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 ofthe Bush Administration; and H.R. 

### 2584, legislation requiring registration and tracking ofhazardous 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 testimonyfrom several Senators, as well as an overview ofHMTA from OTA, the Congressional Research Service, DOT, and panels representing local of

### ficials, industry, shippers, and carriers. The third ofthe 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 ofshared shipper-carrier liability, ordered thebill 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 ofhazardous materials in intrastate, interstate, and foreign commerce. Regulations would be applicable to shippers, carriers and containermanufacturers.

Highway Routing.-Requires DOT to issue standards for States to use in the designation ofhighway routes for the safe transportation ofhazardous 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 ofroutes, 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 oftheir high degree ofriskwhen 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 maxi
### mum 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 ofhigh-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 ofactivities.

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 ofthe grantee to train, plan for, and respond to hazmat emergencies. In order to receive a grant, the bill requires that a Stete, political subdivision ofa 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 ofFEMA, 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, orthe 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 main

### tain 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 ofenactment ofthis 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 ofthe 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 ofsuch a low

**o~der** 

### ofradioactivity that, when transported, does not pose a sig

### mficant hazard to health or safety.

SECTION 7.-PURPOSE OF REVIEW OF HAZARDOUS MATERIALS TRANSPORTATION 

### Section 7 amends section 109(d)(l)(C) ofHMTA to enable the Sec

### retary 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) ofthis title or willfully violates a provision ofthis 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, orboth."

SECTION 9.-CONFORMING AMENDMENT 

### Section 9 amends section 1ll(b) 

## to make a conforming amendment regarding imminenthazard authorityfor 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 ofenactment ofthis 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 ofDOE 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 ofsuchregulations.

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 ofa 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 instancesbe a matter ofstatute, 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 ofshipping modes and routes used for the transportation of high-level radioactive waste and spent nuclear fueL Such standards shallbe 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 ofhighways, railbeds and waterways, quantities ofhigh-level radioactive waste and spent nuclear fuel, emergency response capabilities, exposure

**an~** 

### otherrisk factors, terrain considerations, continuity ofroutes, available alternative routes environmentalimpact factors, and such otherfactors

as may be



### ~ecessary to select between alternative modes and
routes as the Secretaryconsiders appropriate.

### 38


### a1s in which (1) the estimated specific activity is 

### not greater than 0.002 microcuries per gram ofmaterial; and (2) 

### the radiation is 

## distributed in an essentially uniform manner.] The term does not iJt. 

### elude any material which the Secretary determines 

## is ofsuch low or-der ofr.adioactiuity that when transported does notpose a signifi.
cant hazard to health orsafety. Section 109 ofthat 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 andto be 

### able 

### to [recommend] 

### to.ke appropriate steps to assure the safe transporta· tion ofhazardous materials. (e) • • • 

### Section 

### ll 0 ofthat Act

PENAL TillS 

### SEc. 110. (a) CIVIL.-(1)

### Anyperson [(exceptan employeewho 

### 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 ofa] title, oran 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 ofnot 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 ofhazardous 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 ofsuch 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 suchviolation, the degree ofculpa· bility, any history of prior offenses, ability to pay, effect on ability to continue to 

### do business, and such other matters asjustice 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 

### 5years, or both.]

(b) 

### CRIMINAL.-A person who knowingly violates section 105({) of this title or willfully violates aprovision ofthis 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 

### ofthat 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 orrestricting 

## 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 "imminenthazard" exists ifthere 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 ofsuchharm] Section 114 

### ofthatAct

EFFECTIVE DATE 

### SEc.ll4. • • •



### TRANSPORTATIONOF CERTAINHIGHLYRADIOACTIVE MATERIALS
SEC. 115. (a) DEDICATED T'RAINS.-Within 120 days after the date of enactment ofthis section, the Secretary shall issue regulations, in accordance with this section and pursuant to section 105 ofthis title, with respect 

## to the transportation by rail ofhigh-level radioactive waste and spent nuclearfueL Such regulations shallprohibit any transportation of such materials by rail, includingshipments of such materials made by 

### or under the direction or supervision ofthe Department ofEnergy 

### or the Department ofDefense, unless such materials are transported on trains operated exclusively for such purpose. The Secretary shall establish effectiveproceduresfor monitoring andenforcing theprovisions of such regulations. (b) 

### MoDE AND 

### ROUTE SELECTION.-The Secretary shall, within 12 months after the date ofenactment ofthis section, issue standards for the selection of shipping modes and routes usedfor the transportation ofhigh-level radioactive waste and spent nuclearfuel. Such standards shall be developed in consultation with allpotentially·affected States and Indian tribes and after notice and opportunityfor public

**commen~** 

### and shall include but not be limited to requirements that enhance overallpublic safety, taking into consideration population densities, types and conditions ofmodal infrastructures (including highways, railbeds, and waterways), quantities ofhighlevel radioactive waste and spent nuclear

**fue~** 

### emergency response capabilities, exposure and other riskfactors, terrain considerations,

# Exhibit 6

### 33328 CONGRESSIONAL RECORD-SENATE 

### October23, 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 envi

### ronmental concerns in both 

### States. Section 2 of the joint resolution addresses Federalconcerns.



### 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, bethe subject ofpublic bear· ingsby theauthority, andapprovedby a majorityofcommissionersfromboth States. and finallY. receive all applica- ble Federal, State. and local environ- mental permits. And if it is a major project, itmust also have the aPproval oftheDelaware GeneralAssembly,

In short, environmental protections were extensively considered during de- velopment of the comPact by the 

### States and strong provisions were includedin

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

Earlier this month, I introduced SenateJoint 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 economicdevelopment 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. Thebridgeand ferry are among the finest in the world. The authoritY mustmakesure that thosehighstandardscontinue

### tobemet.

But the new responsibility, lf put to good use, can assist the economic future of the counties bordering the DelawareBa.y. Yearlyfigures vary, but with the compact change, millions of dollars will be available to assist eco- nomic growth in Delaware and New Jersey.Withtheenvironmental, financial, tall rate, and otherprotections included in the compact and congres- 

### sional reservations, the economic development projects of the authoritY will be conducted wlthin carefully drawntJarameters. 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 assist

### ance 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 deemedread the third time andpassed and the preamble is agreed to.

So the joint resolution CH.J. Res. 657) was passed.

Thepreamble was agreed to.

**Mr~** LEAHY. Mr. President, I move toreconsiderthevote,

Mr. KASTEN. I move to lay that motion onthetable.

The motio11 to lay on the table was agreed to.

Mr. LEAHY. Mt'. President, I ask unanimous consent that Calendar No. 966 beindefinitely postponed.

The PRESIDING OFFICER. With· outobjection, itis

### 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 CalendarNo, 803, S. 2936, the Hazardous Materials Transportation SafetyImprovementAct.

The PRESIDING OFFICER. The clerkWillreport.

The assistant legislative clerk read asfollows:

A bill cs. 2936> to amend the Hazardous Materials Tran!o-portatlon Act to authorize appropriations for fiscal years 1990, 1991. and 1992, andfor otherpurposes.

The PRESIDING OFFICER. Is there objection to the immediate con- sideration oftheblll?

Therebeingno objection, the Senate proceeded to consider the bill, which had been repoxted from the Committee on Commerce, Science, and Transportation, with amendments; as fol

### lows:

(The parts of the blli intended to be stricken are shown in boldface brackets aod the parts of the bill intended to beinserted are shown in italic.) 

### s. 2936 Be it enacted by the Senate and House of Representativea oj the United Stales of America in Congressassembled.
SHORT 'l'r.ti.E SEcnoN 1. This Act may be cited as the "Hazardous Materials Transportation SafetyImprovement.Actof 1990

... OEFrNITIONS SEC. 2. Section 103 of theHazardous Mate· rials Transportation Act <49 App. U.S.C. 1802> is a.m.ended-

<ll by strf.kingparagraph<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) thefollowing 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, orthe en- vlroruncnt may occur before the reasonably foreseeable completion date of an administrative hearing or other formal proceeding initiatedto abate the risk ofsuch 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 motorcontractcarrier. or a motor private carrier as those terms are defined In section 10102 of title 49, United StatesCode;

"(61 'person' means anindiVidual, 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 itoffers hazardous materialsIor transportation in commerr.e or transports hazardous materials in furtherance of a commercial enterprise, butdoes not include the United States Postal Service and, for the purposes ofs:actions 110 and 111 ofthis title. any agency or instrumentality of t11e FederalGovernment".
REGULATIONS GOVERNING TRANSPORTATION OF HAZARDOUS MATERIALS SEC. 3. Section 105 oftheHazardous Mate- t.ials Transportation Act (49 App. U.S.C. 1804) is amendedtoread asfollows:
"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 ofsection 553 of title 5, United States Code, including an opportunity forinformal oral presentation, regulations for the safe transporta.tton of hazardous materials in intrastate, interstate, and foreign com· merce.

"(2) Theregulations issued underthis 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 containerwhich isrepresented, marked, cer- tified, orsoldby such person as qualified !or use in the transportation in commerce oi certainhazardous materials.

"(3) Regulations issued under this subsec- tion shall govern any aspect. of hazardous materials transportation safety which the Secretary determines necess&.,l-· orappropri- ate.

"(b) HIGHWAY RoUTING OF HAZAIUIDUS MA- 'l'EIUALS.-(1) Not lat.er than 1 yearafter the dateofenaetment ofthe 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,

### October23, 1990 CONGRESSIONAL RECORD-SENATE 

## 83329 Political subdivJsion of a State, (or] Indian [tribe] tribe. orFederal agencyshall desig- nate highway routes for the transportation of hazardous materials, except In accord- ance with thosestandards.

"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 thedesignation.

"<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 opportunityfor public comment.

"(C)No suchroute 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 thefailure of such an affected [State or Indian tribe] state, Indian tribe. or Federal agency to agree to thatdesignation isresolVed infavor of the designating [State or Indian tribe] State, Inrtian tribe. orFederal agency under paragraph (5} of thissubsection.

"(0)such route designationsshallnot

**un~** reasonably burdencommerce.

"(EJThero.ute designation process

**prov!d~** eel in this subsection, inclUding the partici· pation of affected juri:sdictions, shall be completed ina timelymanner.

**"<~>** Standards Issued bY the secrcta.rs under paragraph Cl> shall provide for

**con~** siderationoffactors such as-

"CAl population density; "CB> type ofhighways; "CC) type and quantities_of hazardoUs

**ma.~** terlals;

"CD> emergencyresponse capabilities; "CEl consultationwith affectedparties; "<F> exposure andotherriskfactors: "CGl terrain considerations; "(Rl continuityofroutes: "(I)alternativeroutes: "(J)effects on conunerce; and "<Kl such other factor.;; as the Secretary considers appropriate.

"C4l states shall be responsible !or deter· mining, tn accordance withrequirements 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, orFederal agency to a. highwayroute 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 agenciesunder thispara- graph.

"(C} The Secretary shall resolve a dispute under this paragraph within 1 year after the date the Secretary receives the petition for resolution ofsuchdispute.

"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 greatestlevel of highway safety withoutun- reasonablY burdenlngcommerce.

"(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 enforcea route designation,

"(2) Any State or Indian tribe that is a. party to a proceeding under subsection (b)<Sl andthat is adversely affected by a decision rendered in such proceeding may, at any time before the explrat.ion of 60 days after thatdecision becohles final, file a petl· tion for Judicial review with the appropriate districtcourtoftheUnitedStates.

"(d) LIST OF ROUTE DESIGNATIONS.-The Secretaryshallperiodically update a.nd

**pub~** lish a list of currently effective hazardous matertalshighway 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 extentpracticable, regulations issuedby the Secretary pursuant to this section shall be ·consistent with standards adopted by internationalbodies applicable to the transporta- tion ofhazardous materials. Nothingin 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, norshall 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 arenecessary inthepublic interest.

"<fl DrsCLOSUR£.-{1) Each person who offersfor transportation incommerce a haz.. ardous material that is subJect to the ship- ping paper requirements of the Secretary shallprovide the carrier, ormnintain onthe vehicle ifa. private motorcanier, a shipping paper that, at a minimum, discloses in a mannerprescribedby the SecretarY, thefol· }OWintr.

"(A) a. description of the hazardous

**rnn.te~** rJal includJngthepropershippingname;

"<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 ora meansforappropri· ate reference to such lnfonnat1on which mustbeimmediately 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 duringits tran.s- portation.

"C2l Any person who transports a hazardau.; materialin commerceshan, in the event of an incident involving such material, im· meQiately discloseto 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 containerorpackage for the trans· porta.tion ofhazardous mat.etials issafe, cer· tiried, or in compliance with the require- ments of this title unless it meets the requirements of all applicable regulations issued underthis

**title~** or

"(2) a hazardous material is oresent in a package, container, motor vehicle, rail freJgllt car, aircraft. or vessel, if thehazard· ousmaterial is notpresent.

"(h} UNUWFUL TAMPEmNG.-No pen;on shBlJ unlaWfullY alter, remove, deface, destroy, orotherwise 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 ofLabor. 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 MATERIALSTRANSPOltTA'l'ION SAFETY PERMI'l'S SEc. 4. Section 106 oftheHazardousMate· 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 afterthedateof enactmentofthissub· section, no motor carrier may transport or cause to be transported in commerce, in a quantity established by the Secretary, any class AorB exPlosives, anyhazardousmate· rial whichhasbeendesignatedby 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· transportationincommerce a haz· ardous material to which this subsection aP-- plies may only offer such material to a.

**c~­** rierpresentinga 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 

### October23, 1990

issued bY the Secretary under paragraph (4). including a certlflca.tion that the carrier hasidentified anhazardous material regula· tions ofthe Secretaryapplicableto thecar· rJer".s operations and is In full compliance therewith and with the Federal Motor Carrier Safety regulations contained in subchapterB 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 ofthis title or any regulation Issued under this title. In cases of Imminenthazard, the Secretarymay amend or suspend a safety permit lmmediately without the opportunityfor a hearing.

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

"<A> to which hazardous materials and In whn.t Q.uantitles thissubsectionapplles;

"(B) standards of complJance reqUired to bemetforissuance ofa. safetypermit;

"(C) application procedures. including form. content, andfilingfees;

''<D> standards for determining the**dura.~** tion. [terms] 

### terms. condltlons, or Umltatlons of a safetyperntJt;

"<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 todeterminewhich-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 thematerials, 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 transportedby rail, alr, or water Jn commeree any class A or B explosives, anyhazardous material which hasbeendesIgnated bythe 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. inthe event ofanaccident.". ELIMlNATION OFI>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 inthe 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 thereofthefollowing: "Theterm does notinclude any material which the Secretary deter· mines Js of such low order of radioactivity that when transported does not pose a slg· nlficant hazardto health orsafety.".
PURPOSE OF REVIEWOF 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)) isamended by striking "recommend" and inserting in lieu thereof "take".
PENA!.'l'IES

SEC. 8. (n,} CIVIL PENALTIES.-Seatlon llOCa)<l) oftheHazardous Materials Trans· portatlon Act <49 App. U.S.C. 1809(a)U)} is amended-

(!) by striking "(except an emploYee who actswithoutknowledge)";

C2l by striking "knowingly" each place it appears;

<3) bystriking "title or of a" and inserting InUeu 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 notlessthan $250"

_

(b) CBIMIN/U. PENALXIEs.-Subsection (b) of section 110 of the Hazardous Materials Transportation Act (49 App. U.S.C. 18091 is amended toread asfollows:

"(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, orboth.''.
CONFORMING AMENDMENX SEC. 9. Section 11Hb1 of the Hazardous Materials Transportation Act (49 App. U.S.C. 1810Cb)} Is amended by striking the secondsentence.
l"RANSPOR1'A1'10N OF CERTAIN HIGHLY RADIOACTIVE MATERIALS SEc. 10. The Hazardous Materials Transportation Act<49 APD- U.S.C. 1801 etseq.) is amended by redesignating section 115 a.s section 118, by strlklng sectlon 116, and by inserting immediately after section 114 the followingnew section:
""tRANSPORTATION OF CER'XAIN HlGlJLY RAD!OACl"IVE MATERIALS "SEC. 115. (a) DEDICAmD TRAINS.-Withln 120 days afterthe date ofenactmentofthis section, the SecretarY shall issue**regula~** tlons, ln accordance with this section and pursuant tosection 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 suchpurpose. The Secretary shall establish effective procedures for monitoring and enforcing the provisions ofsuch 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 afternotfce and opportunity for public com· ment, and shalllncludebutnotbelbnltedto requirements that enhance overall publlc safety, takinginto 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 otherfactors rrelat· ed to alternative routes as the secretary considers approp1·la.te.] as may be necessary tafacilitate selection ofshi: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, orengineeringa.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 thefollowing new section:

"'EMERGENCY RESPONSE PLANNINGAND TRAINING GRANTS "SE:c. 116. {a) A1lTHOBI1'Y To MAKE GRAN'tS.-<ll The Secretary shall ma.k:e grants beginningnotlater 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 suchresponse.

"(2l The Secretary may not make a grant to n State or Indian tribe under this section unless such StateorIndian trlbe agrees that the aggregate expenditure of funds of the Sta.te or Indian tribe, exclusive of Federal funds, for training public sector personnel

## October23, 1990 CONGRESSIONAL RECORD-SENATE 

## 33335 But, I am happy tosay that this leg- islation 

### as reported from committee will correct that problem. And, this amendmentwill go a step further,

**pro~** viding the States with a small amount ofmoney tohelp themdo thejob.

The States want to be Involved and theyshould 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 evacuatedfrom theirhomes.

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- cidentsite. Itwas a major disaster.



### Last year, a derailed tanker car 1n Freeland, MI. burned for 5 days; 2,000 people wereforced out of their homes.

The list goes on. Another train carrying 34,000 gallons ofliquid 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 onthetable.

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- mentAct of 1990. Thisbill is theprod- uct ofa yigorous debate which has focused onways to improve the safety of hazardous materials [hazmatl transportation and hasbeen going onfor at least the past three Congresses. The current statute, the Federal Hazardous Matelials Transportation Act, has nothad any substantialrevisions 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. Thishearing followed a series ofhear· ings held on this subject during the 100th Congress andrevealed 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 materialslaws andincreasing themaximum penalty to $25.000 per violation per day; fourth, providing for the use of single-purpose, dedicated trains for the transportation bY rail ofhigh·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 onthe 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 delightedthat themany parties involved in this issue have helped develop a consensus on many ofthe 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 inthe public interest

### as a tool to strengthen 

### the- wa:t we govern the transportation ofhazardous 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 ofS. 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 ofMissouri. Missouri lies at the transportation crossroads of the Nation. Kansas City is the second busiest railroad hubin theNation, 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 ofall hazardous materials shipped in the United States are transported by rail or by trucks. Barges, traveling on rivers like the Mississippi and theMissouri, carry the third largest amount of ha2iardous goods.

In April1989. SenatorsBOND, 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 andMissouri.

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 centerin Idaho Falls,Idaho.

I am pleased thatS. 2936, as amended, addresses many of the same issues addressed by S. '128. Specifically, S. 2936 includes thefollowing:

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 matterofpolicy.

S. 728 would have directed the Secretary ofTransportation to issue regu- lations making dedicated trains man· datory for the shipment of high-level radioactive wastes and spent nuclear fuel inordertoensure 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 SPENTNUCLEA-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 fac

### tors, ifany, mustbe 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 

## October23, 1990 otherrisks, terrain considerations, and potential environmental impacts along alternative highway orrailroadroutes. 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 transportationsafetyinspectorhadjustleft 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 eachyear.



### 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. BothS. 728 and S. 2936 contain an identical provision, similar tolegislationfirst 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 thatlower-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- oushazardousmaterials, nor can ittell which ones operate safely. This provision. which is the same inboth S. '128 andS. 2936, wouldrequiremotor 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 permittedcarriersonly. 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 high

### way 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 ofexplosives. 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- tationActimposes a civil penaltyupon anyone who "knoWingly commits" a violation of the Act or its regulations. The DOT always has interpreted the term "knowingly" to mean that a personknew, or, inthe exercise ofrea- sonable care, should have known. of the facts constitutinga violation.

However. a U.S. districtcourtrecently rUled that DOT could nat levy pen- alties unlessitcould prove that the ac- tions involved "willful negligence," or a "reckless disregard for the probable consequences." If this standard pre· vails, DOT willbe powerless to protect the public from careless transporters of hazardous goods, unless their viola· tions are especiallyegregious.

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 OFDoT "COMPLIANCE ORDERS"

DOT is authorized to issue compli- ance orders, but only the District Courts oftheUnitedStates,upon peti- tion by theU.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 urgemy colleagues to joinme insupport ofS. 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 onewhich 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 ofcertainhazardous materials, directs training for State andlocal 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. portthislegisl3.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 movingunder DOTregulations.

Highway accidents involving cargo tank trucks pose a particularlyserious threat to public health and safety mostly because ofthepotentialrelease of large quantities of hazardous materials. Life, property, and the environment are at risk with an accident such as we saw inBhopal. The types ofma- 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 ofbulk quantities of hazardous matelials. by requiring the shippers o! those hazardous materials to be responsible for selecting safe motor carriers. Atthe present time, many shippers base their selec· 

### tion of motor carriers primarily 

### on who hasthe 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- atingshared shipper-carrierliability 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-

### October23, 1990 CONGRESSIONAL RECORD-SENATE 

## 33339

leased white phosphorus which ignited, destroying three tank cars, darnag. ing adjacentequipment andtrack. and requiring extensive cleanup of con- taminated soil. ApproximatelY 2,500 peoplewere evacuatedfor over 5 hours because ofthe accident.

Most

**recently~** western Pennsylvania has suffered two more rail-related ac- cidents that were associated with hazardous materials and resulted in the evacuation ofnearbyresidents. 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 evacu

### ation 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, promptingthe evacuationofsome 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 waterto westernPennsylvall.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 ofwhich I have addressed 

### ins. 581.

Mr. President, rail safety is not a localized problem. I believe the track and equipment problems in western Pennsylvaniaarerepresentative ofthe situa.tinn nationwide. The Congressional ResearchService 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 aspossible.

As I indicated severalprovisionscon· tained in this bill before the Senate today are similar to provisions of my bilL Specifically, these provi.sions will require that shippingpapersregarding In addition, my blll would authoriZe hazardous materials present in the the Federal Railroad Administration shipment be available onboard trains 

### to double its number ofhazardous 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 portedas 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 itis un- hazardousmaterials. lawfulfor anY pemonto willfullY alter, The PRESIDING OFFICER. Withremove, deface, destroy, or tamper outobjection, the bill isdeemed reada with any placardinvolved Inthe

**trans~** thirdtime and passed. portatlonofhazardous materials.



### -~S~o~t~he~b~i~li~<S:.·~29~3::6:), as amended.

The '3AO reportrequested 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 includedprovisions to reconsider the vote by which the
to create a unifonn civil penalty for bill, asamended,was passed. violations of the Federal safety laws Mr. KASTEN. I move to lay that with a maximum penalty of $10.000 motiononthetable. 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 minimumcivilpenaltyof $250.

Mr. President, local fire a.nd police department personnel are usually the first to respond to a hazardousmaterial 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 emergencyresponse 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 trainingprograms.

In response, I have proposed in my bill to address the importance of propertraining ofemergencyresponse teams through emergency response planning and training grants. Similarly, S. 2936 provides grants to Statesto enhance training of emergency re- sponse personnel. The provision re- quires authorities to submit }Jlans to the SecretaryofTransportationwhich will foster and promote the develop

### ment 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 ofS. 3237, a bill to authorize the Secretary of the Treasury to sell cer- tain silver proof coin sets, introduced earlier 

### today; that thebill be read for thethird time. passed, and themotion toreconsiderbe 1aid upon the table.

The PRESIDING OFFICER. Withoutobjection, itis so ordered.

So thebill 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
errormade in the appointment ofcon· ferees on the part of the Senate for H.R. 5269, the Comprehensive Crime ControlAct, becorrectedso thatSena· tors PELL and HELMS are listed 

### a.s con· ferees for titleXXVII ofthebill.

The PRESIDING OFFICER. With· out objection,

### itls so ordered.

# Exhibit 7

## 34168 CONGRESSIONAL RECORD-HOUSE 

## October25, 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 ofTropi· 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 expertisewith 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 Senateamendment. 

### known as the LuqullloExperimental Forest> TheClerkreadthetitleofthebill.
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, andresearch.

{2) TheSecretaryshall-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- AllowanceAdjustment 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 thatinclude,

..$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 effectOctober 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 offorests 

### 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 ofthere- [Mr. MURPHY] for any comments he search described in paragraph {1) of this subsection with other countries throughout mightlike 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, butnotllmlted to, technology, training, information. equipment and .facD)ties. such man from Pennsylvania [Mr. Goonassistanceshallnot beprovided toany 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 consistentand

**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 beeninjuredonthejob. 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 outactivities 1n other countries. there objection to the request of the SEC. S. APPROPRL\TlONS. gentlemanfromPennsylvania?

There are hereby author.lzed to be appro· There wasnoobjection. prlated such sums as may be necessary to carry outthe purposes of thisAct. A motion to reconsider was laid on



### The SPEAKER pro tempore (Mr. thetable. McNULTY) (during the reading). With· out objection, the amendment in the nature of a substitute ls 

### considered as read andwill beprintedintheRECORD.

Therewasnoobjection. 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].



### Therewasnoobjection. The bill was ordered tu 

### beengrossed and read a third time, was read the third time, and passed, and e. motion toreconsider waslaid onthetable. 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 re

## marks, 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 gentlemanfromPennsylvania?

Therewas 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 Senatebill

## cs. 2936) 

### to amend tbeHaz.. ardous Materials TraiiSportatlon Act to authorize appropriations for fiscal 

### years 1990, 1991, 

### and 1992. 

### and for other purposes, and ask for its immediateconsideration.



### The Clerk read the title of the Sentatebill.



### The SPEAKER pro tempore. Is 

### there objection to the request of the gentlemanfrom Ohio?



### Mr. WHITTAKER. 

### Mr. Speaker, re· servingthe 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 amendmenttothis bill.



### Mr. THOMAS A. 

### LUKEN. Mr. Speaker, if the gentleman will yield, the legislation which we are consider

### ing todayrelates to a subjectwhich 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 

### mil

### lion. But while hazardous materials transportation is increasing year in 

### and year out, our laws have not kept paceWith thesedevelopments.

Fifteen years have passed since the passage of the Hazardous Materials TraiiSportatlon Act. Since that time,
no major revisions to the original leg

### islation havebeen enacted. In

### fact, au- thorizations for the actexpired at the end offiscal 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

## October25, 1990 CONGRESSIONAL RECORD-HOUSE 

## 34181

or under this subsection as may be neces- saryto cover thecosts oftheDepartmentof Transportation ln processing such registra· tionstatements.

"(12) PROOF OF RF.GJ.STRATION AND PAYMENT oF FEES.-The Secretary may issue regulations requiring a person required to file 

### a. registration statementby orunder this subsection to maintain proof of the fUing of suchstatement andthepaymentof anyfees assessed under this subsection and section 111(hl.

"(13} APPLICABlLl'IY OF INFORMATION MAN• AGEMEN'l REQUlREMENTS.-Chapter 35 of title 44, UnitedStates Code<relating tocoordinationofFederalinfonnattonpollcy) shallnot apply to activities of the Secretary under thtssubsection.

"(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 statementby orunderthissection.

"(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 theirofficial dutiesdo not have to mereglst:ra.tlon statementsunderthissubsection.

"(d)MOTOR CARRIER SAFErYl'EaM:rrs.- "(1) REQOIREMENT.-Except as provided in this subsection, a motor carrier may transportor cause tobetransportedbymotor 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 otherproof establishing the existence ofsuchpermit. in the motor vehicle used to provide such transportation.

"(2) lsSUANCE.-Except. as provided in this subsection. 

### the Secretary shall 

### issue a safetypennttto a. motor ca.rt:ier authorizing that carrier to tl'.ansport or cause to be transportedby motorveblcle in commerce a haZ&rdous material it tbe secretary finds thatthecarrierisfit, willing, andable-

"<A) to provide the transportation to be authorizedbythepermit;

"<B> to complywiththis title and thereg· ulatlonsissuedbytheSecretarytocarryout thistitle; and

"(C)to complY withany applicableFeder· almotor carrier safetylaws and regu).Btions and any applicable Federalminimum ftnanclalresponslbtlltylaws andregulations.

"(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! thecarrierhasa safetypennltissued 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, orrevok:ed bytheSecretarY in accordancewith 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 orregulation, or any applicableFederal minimumfinancial responsibllltylaw orregulation. Ifthe SecretarY determines tha.t an imlnlnent hazard exists. the Secretary may

**amend~** suspend, orrevoke tbesafetypermit before schedullnga hea.rlngthereon.

"<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 toxicbyinhalation,ona highway route con

### tiolled quantity Of radioactive materials 

### as defined bytheSecretary.

"(6) PRocEDUREs.- The Secretary shall es- ta.bUsb byregula.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 issuedunderthissection; 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 anypart of the application or deny theapplication. Theapplicationshall-

"<A> be underoath; and "(B) 

### contain such information as the Secretarymayrequirebyregulation.

"(8) **CoNDI~ONs.-A** motor carrier may '9TDVide transportation under 

### a. safety pennit issued under this 5ubsecUon only if thecarriercomplies with such conditionsas the Secretal'y finds are required to protect public safety.".

(b) SAFETYPEaM:lTs.-Sectlon 106Cd) ofthe H8ZBI'dousMaterialsTransportationAct. 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 aftersuchdateofenactment.

(c) REPEAL Oi' EXIS'rtNGPROGRAM.-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: "Thetenn does not Include anyma- terial which the Se...'"I'eta.ry determines is of such low order of radioactivity that when transported does not pose 

### a. significant hazardto healthorsafety.".
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(aJlIs amendedlllInparagraphUl- (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)byinserting "orderor" after"violation ofany" Ineach oithesecond and third

**s:en~** tences; and <D> by striking "$10,000" In each of the second and third sentencP.s and inserting "$25,000 andnotlessthan $250"; and

<2) byaddingattheend thefollowing: "{3) AC'I'ING KNOW!NGLY.-For purposes of thissection. a. pel'5on shanbe considered to have actedknowingly lf-

"(Al such person has actual knoWledge of thefacts giving riseto theviolation, or

"(B) 

### a reasonable

### person acting in thecircumstances and exercising due care would havesuehJmowledge.".

(b) CRIMINAL E'ENALTIES.-5Ubsection (b) of section 110 (49 App. u.s.c. 1809J Is amended to read asfollom:

"{b) CRIMINAL.-A person who knoWingly violates section 105(f) ofthis title orwllliul· 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. orboth.".
SRC. 13. RELATIONSHIPTO OTHER 1...\\YS.

Section 112 (49 U.S.C. App, 1811) is amended toreadasfollows:
"SEC. 112. RELATIONSHIPTO 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 Indiantribeis preempted if-

"(1)compliancewith both theStateorpolitical subdivlslon or Indian tribe requirement and anyrequirement o1 this title orof

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 ofthis title or the regulations issuedunder this title, or

"(3) it is preempted under section 105(&)(4) orsection l05(b).

'"<b) FEEs.-A State orpolitlcal subdivision thereof orIndiantribe maynotlevy 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 emergencyresponse.

"(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 politicalsubdivision orIndian tribe, may apply
to the secretary. in accordance withregulations prescribed by the Secretary. for a detet'II1lna.tion of whether thatrequirement 1s preempted by section 105Ca.)<4> or 105Cb) or subsection (a}. The SecretarY shall publlsh noticeortheapplication lntheFederalRegIster. 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 thesame issue in any courtuntU the Secre· tai'Y has taken final action on the application or untn 180 days afterfiling 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 carryingoutthisparagraph.

"(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 

## October26, 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

### wasagreedto. 

### Mr. GRAHAM. 

### Mr. President, 

### I
moveto reconsider thevote.



### Mr. SIMPSON. I move to lay that motion onthetable.

The motion to 

### lay on the table 

### was agreedto.

HAZARDOUS MATERIALS TRANS·

PORTATION UNIFORM 

### SAFETY

Mr. GRAHAM. 

### Mr. President, I ask: 

### that the ChairJay beforethe Senate 

### a message from the Honse ofRepresentatives onS. 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 thefollowing 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 spe

### cifically 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 ofthe Ha2ardous Materials Trans· 

### partationAct.

(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 andtampering. Sec. 6. Disclosure. Sec. 7. Ha11dling ofha.zardou.s materials. 

### Sec. 8. Hazardous materials transportation registration; motor carrier safety pennits. 

### Sec. 9. Exemptions. Sec. 10. Definitionofcertainmaterials. Sec. 11. Secretary's powers. 

### Sec. 12. Penalties. Sec. 13. Relationship to otherlaws. Sec. 14.Funding. Sec. 15. Transportation ofcertain 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 tankcars. Sec. 20. Application of Federal, State, and lo-cal law to Federal contractors. 

### sec. 21. Railroadtank:

### carstudy. 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.

### Financialresponsibility. means theDirector oftheFederal Emergen· Sec. 24. Federally leased commercial motor cy ManagementAgency, vehicles. "(4) HAZARDOUS MATERIAL,-The term 'haz· Sec. 25. Improvements to hazardous materi- ardausmaterial' mean.• 

### a substance ormateals identificationsystems. rial designated by the Secretary under sec· Sec. 26. Continually monitored telephone tion 104. systems. "<5> HAzMAT EMPLOYEE.-The term 'hazrnat 

### Sec. 27. Shipperresponsibilityreport. 1 • · dl 1 Sec. 28. State particlpe.tion in investigations emp oyee means an m**~v** dual who is em- 

### andsurveillance. ployed by a hazmat employer and who in
sec.29. 

### Retention ofmarkings and placards, the course of 

### the individual's employment sec. 30. 

### Relationship to 

### Federal Railroad directly affects hazardous materials transSafetyActof 1970. partatiansafety

### as determinedhy theSecreSec. 31. 

### Effective date. tary by regulation. Such term includes an SEC. 2. FINDJNGS. owner.operator of a motor vehicle which

Thecongressfinds 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 individ

### ported 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, thetransportation ofhazardous 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 ofhazardous mate1ials; or therebycreating the potential for**unreason~** "CE> operates a vehicle used to transport able hazards in otherjurisdictions and con· hazardousmaterials. 

### founding shippers and carriers which at- "(6) HAZMAT EMPLOYER.-The term tempt to comply with multiple and conflict· 'hazmat employer' means a person

### ing 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 environmentposed 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 orderto achieve greater uniformity and and to promote the public health, welfare. '"<BJ who utilizes 1 or more of its employ

### and safety 

### at all levels. Federal standards ees 

### in connection withsuch activity, for regulating the transportation of**ha2ard~** Such term includes an owner-operator of a ous materials in intrastate, interstate, and motorvehicle 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· ofthe United States, a State. a politicalsub· 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 'immisponsepersonnel 

### i.s required. nent hazard' means the existence ofa 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, andshall be conducted in a under section 4 of the Indian Self-Determisafeand efficientmanner. nation andEducationAct {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 toread 

### 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, Compensa

### States (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 

### andany otherlaws oftheUnitedStates.

"(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 tothepublic.

"<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 neces

### sary tocover the costs oftheDepartmentof 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 statementbyor under this 

### subsection to maintain proof of the filing of suchstatement and the paymentofany fees assessed under this subsection and section 

### 117(h).

"(13) APPLICABILITY OF INFORMATION MAN· AGEMENT REQUIREMENTS.-Chapter 85 of title 44, 

### UnitedStates Code <relatingtocoordination ofFederalinformationpolicy) shallnot apply to activities of the Secretary under 

### thissubsection.

"(14) 

### NONAPPLICABILITY TO 

### EMPLOYEES.- Notwithstandlng any other provisions of this subsection, an employee of a hazmat employer is not required to file a registra

### tion statementby orunderthis 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 nothave to file registrationstatementsunderthissubsection.

u(d} MO'tOR CARRIER SAFETY PERMITS.- "(1) 

### REQUIJ<EMENT.-Except 

### as provided In this subsection, a motor carrier may transportorcause tobetransportedby 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 theexistence ofsuchpermit. in the motor vehicle used to provide such transportation.

"(2) 

### lssuANCE.-Except 

### as provided in this subsection, the Secretary shall issue u 

### safetypermitto a motorcarrier autholizing that carrier to transport or cause to be transported by motorvehicle incommerce a hazardous material if 

### the Secretary c:inds thatthecarrieris fit, wUling, and able-·

"<Al to provide the transportation to be authorizedbythepermit;

"<B> to comply with this title and the regulations issued by the Secretaryto carry out this title; and

"<Cl tocomply with any applicable Federal motor carrier safety laws and regulations and any appl!cable Federal minimum 

### .financialresponsibility laws andregulations.

"(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 permitissued 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, orrevoke thesafety permit beforeschedulinga hearing thereon.

"(5) COVERED TRANSPORTATION.-The Secre

### tary 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 byinhalation, 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 safetypermit;

"(C} procedures for the amendment, sus-- 

### pension, or revocation of a safety permit issued under thissectioni 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. Theapplicationshali-

"(A} beunderoath; and 

### "<Bl contain such Information 

### a.s the Secretary may

### reqUire byregUiation.

"(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 Ofthe HazardousMaterialsTransportationAct, 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 

### carryout such section not later than 1 

### year aftersuch date ofenactment.

(C)

### REPEAL OF ExiSTING PROGRAM.-Subsectlons (el and (f) 

### of section 106 

### of the Hazardous Materials Transportation Act ( 49 

### U.S.C. 1805l, 

### as redesignatedbY 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: ''Theterm doesnotinclude any**rna~** 

### terial which the Secretary determines is of such low order of radioactivity that when transported does not pose a significant 

### hazard 

### to healthorsafety.". SEC. II.SECRETARY'S POWERS. 

### Section 109(d)Ul(Cl (49 U.S.C. App. lB08(dJ(l)(C)) is amended by striking "recommend" andinserting "take". SEC. 1%. PENALTIES.

(a) 

### CIVIL**PENAL~IES.-Section** 

### 110(8.) (49 

### App. U.S.C. 1809(a)) is amended-

(lJ 

### In paragraphUl- <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 "orderor"after "violation ofany" ineach ofthe second and third sen- tences; and

<DJ bY striking "$10,000" in 

### each of the second and third sentences and inserting 

### "$25,000 and notless than$250"; and

<2l by 

### adding attheendthe .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 theviolation, or

"(B>a reasonable person acting in the**cir~** cumstances and exercising due care would 

### havesuch knowledge.".

(b) 

### CRIMINAL PENALTIES.-8Ubsection (b) of secLion 110 (49 App. U.S.C. 1809> is amendedto read as follows:



### "(bJ CRIMINAL.-A person who knowingly violates section 105(fl ofthistitle orwillfully 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 amendedto 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 ispreempted if-

"(1

### >compliance with boththe State orpolitical 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

"(3l 

### it Is preempted under section 105<aJ(4l or section l05(b!.

"(b)

### h'EES.-A State orpolitical subdivision thereoforIndiantribe maynotlevy 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 po

### litical subdivision or Indian tribe, may apply to the Secretary, in accordance with regula· tions prescribed by the Secretary, for a de

### termination of whether that requirement is preempted by section 1(}5(a)(4} or 105(b} or subsection Ca.). The Secretary shall publish 

### notice ofthe application In theFederalRegister. Once the Secretary has published such notice, no applicant for such**determi~** 

### nation by the Secretary may seek relief