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CURRENT ISSUES IN RAIL TRANSPORTATION OF HAZARDOUS MATERIALS

(109–78)

HEARING

BEFORE THE

SUBCOMMITTEE ON

RAILROADS

OF THE

COMMITTEE ON

TRANSPORTATION AND

INFRASTRUCTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JUNE 13, 2006

Printed for the use of the

Committee on Transportation and Infrastructure

(
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-Chair

SHERWOOD L. BOEHLERT, New York

HOWARD COBLE, North Carolina

JOHN J. DUNCAN, JR., Tennessee

WAYNE T. GILCHREST, Maryland

JOHN L. MICA, Florida

PETER HOEKSTRA, Michigan

VERNON J. EHLERS, Michigan

SPENCER BACHUS, Alabama

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

GARY G. MILLER, California

ROBIN HAYES, North Carolina

ROB SIMMONS, Connecticut

HENRY E. BROWN, JR., South Carolina

TIMOTHY V. JOHNSON, Illinois

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

TOM OSBORNE, Nebraska

KENNY MARCHANT, Texas

MICHAEL E. SODREL, Indiana

CHARLES W. DENT, Pennsylvania

TED POE, Texas

DAVID G. REICHERT, Washington

CONNIE MACK, Florida

JOHN R. ‘RANDY’ KUHL, JR., New York

LUIS G. FORTUN ̃ O, Puerto Rico

LYNN A. WESTMORELAND, Georgia

CHARLES W. BOUSTANY, JR., Louisiana

JEAN SCHMIDT, Ohio

JAMES L. OBERSTAR, Minnesota

NICK J. RAHALL, II, West Virginia

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JERROLD NADLER, New York

CORRINE BROWN, Florida

BOB FILNER, California

EDDIE BERNICE JOHNSON, Texas

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

LEONARD L. BOSWELL, Iowa

TIM HOLDEN, Pennsylvania

BRIAN BAIRD, Washington

SHELLEY BERKLEY, Nevada

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

JULIA CARSON, Indiana

TIMOTHY H. BISHOP, New York

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

BRIAN HIGGINS, New York

RUSS CARNAHAN, Missouri

ALLYSON Y. SCHWARTZ, Pennsylvania

JOHN T. SALAZAR, Colorado

JOHN BARROW, Georgia

(II)
SUBCOMMITTEE ON RAILROADS

STEVEN C. LATOURETTE, Ohio, Chairman

THOMAS E. PETRI, Wisconsin

SHERWOOD L. BOEHLERT, New York

JOHN L. MICA, Florida

SPENCER BACHUS, Alabama

JERRY MORAN, Kansas

GARY G. MILLER, California

ROB SIMMONS, Connecticut

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

JON PORTER, Nevada

TOM OSBORNE, Nebraska

MICHAEL E. SODREL, Indiana

LYNN A. WESTMORELND, Georgia, ViceChair

DON YOUNG, Alaska

(ex officio)

CORRINE BROWN, Florida

NICK J. RAHALL II, West Virginia

JERROLD NADLER, New York

BOB FILNER, California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

LEONARD L. BOSWELL, Iowa

JULIA CARSON, Indiana

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

EDDIE BERNICE JOHNSON, Texas

JOHN BARROW, Georgia

JAMES L. OBERSTAR, Minnesota

(ex officio)

(III)

(V)

CONTENTS

TESTIMONY

Page

Beardsley, James R., Managing Director, National Rail Transportation Practice Aon Risk Services, Inc., accompanied by Deborah Bates, Vice President

and Complex Casualty Broker, National Rail Transportation Practice Aon

Risk Services, Inc. ................................................................................................ 44

Bell, Steven, Battalion Chief, Augusta Fire Department ..................................... 44

Boardman, Hon. Joseph, Administrator, Federal Railroad Administration ....... 10

Chipkevich, Robert, Director, Office of Rail, Pipeline and Hazardous Materials

Investigation, National Transportation Safety Board ....................................... 10

Durbin, Martin, Managing Director, Federal Affairs, American Chemistry

Council .................................................................................................................. 44

Hamberger, Edward, President and Executive Officer, Association of American Railroads ....................................................................................................... 27

Mann, Lawrence M., American Trial Lawyers Association ................................. 44

Pomeroy, Hon. Earl, a Representative in Congress from North Dakota ............ 6

Pontolillo, Thomas, Director of Regulatory Affairs, Brotherhood of Locomotive

Engineers .............................................................................................................. 27

Simpson, Thomas D., Executive Director-Washington, Railway Supply Institute ........................................................................................................................ 27

Timmons, Richard F., President, American Short Line and Regional Railroad

Association ............................................................................................................ 27

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Berkley, Hon. Shelley, of Nevada ........................................................................... 66

Brown, Hon. Corrine, of Florida ............................................................................. 80

Cummings, Hon. Elijah E., of Maryland ............................................................... 94

Johnson, Hon. Eddie Bernice, of Texas .................................................................. 132

Oberstar, James L. of Minnesota ........................................................................... 143

Porter, Hon. Jon, of Nevada ................................................................................... 160

Schmidt, Hon. Jean, of Ohio ................................................................................... 161

Young, Hon. Don, of Alaska .................................................................................... 172

PREPARED STATEMENTS SUBMITTED BY WITNESSES

Beardsley, James R. ................................................................................................ 57

Bell, Steven .............................................................................................................. 63

Boardman, Hon. Joseph .......................................................................................... 68

Chipkevich, Robert .................................................................................................. 86

Durbin, Martin ......................................................................................................... 100

Hamberger, Edward ................................................................................................ 106

Mann, Lawrence M. ................................................................................................. 137

Pontolillo, Thomas ................................................................................................... 149

Simpson, Thomas D ................................................................................................. 162

Timmons, Richard F ................................................................................................ 169

SUBMISSIONS FOR THE RECORD

Chipkevich, Robert, Director, Office of Rail, Pipeline and Hazardous Materials

Investigation, National Transportation Safety Board, responses to questions

from Representative Johnson of Texas ............................................................... 91

Hamberger, Edward, President and Executive Officer, Association of American Railroads, statement of Charles W. Moorman, Chairman, President

and Chief Executive Officer, Norfolk Southern Corporation ............................ 127
Page

VI

ADDITIONS TO THE RECORD

National Corn Growers Association, Gerald Tumbleson, President, letter, July

7, 2006 ................................................................................................................... 175

Fertilizer Institute, Ford B. West, President, letter, June 21, 2006, and statement, Joe Giesler, Terra Industies, Inc., Sioux City, Iowa ............................... 177

McGregor Company, Fred Morscheck, Colfax, Washington, statement .............. 183

Norfolk Southern Corporation, Hazardous Materials Training:

Switching and Train Placement Charts ............................................................. 189

Hazardous Materials Training, Norfolk Southern Training Center,

McDonough, Georgia, charts ............................................................................ 201

Hazardous Materials Rules, Eastern Code, effective November 11, 2001 ...... 275
(1)

CURRENT ISSUES IN RAIL TRANSPORTATION

OF HAZARDOUS MATERIALS

Tuesday, June 13, 2006

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, SUBCOMMITTEE ON

RAILROADS, WASHINGTON, D.C.

The subcommittee met, pursuant to call, at 10:00 a.m., in room

2167, Rayburn House Office Building, Honorable Steven C.

LaTourette [Chairman of the subcommittee] presiding.

Mr. LATOURETTE. Good morning. The hearing of the Railroad

Subcommittee will come to order. Today’s hearing is on the subject

of the transportation of hazardous materials, a class of substances

ranging from nontoxic materials, such as comprised nitrogen, to

highly toxic gases, such as chlorine.

Most hazardous materials in the United States are transported

by rail and the primary reason is safety. Over the years, our Nation’s rail industry has had an admirable safety record and the

railroads are constantly working to reduce the likelihood of accidents. Railroad tank cars are robustly designed and have been

crash tested to minimize the possibility of an accidental release.

And most importantly, railroad employees receive extensive safety

training, which is the key to operating a safe system.

There is one other reason why shippers prefer to move hazardous

materials by rail, a reason that is little known to the general public. Many people are surprised to learn that railroads have no

choice in the matter; they are required by law to ship any and all

hazardous materials at the request of any shipper. This is known,

of course, as the common carrier obligation.

The railroads, of course, purchase insurance to mitigate the financial risk of carrying hazardous material, but this coverage is

both expensive and limited in availability. According to the Association of American Railroads, highly hazardous commodities constitute only 0.3 percent of total carloads, but account for 50 percent

of the railroads’ total insurance cost. Due to the expense and lack

of available coverage, most railroads are only able to ensure a fraction of their net worth. For a smaller carrier, a single hazmat accident force the company into bankruptcy.

This is why we wanted to explore new ways of handling the risk

exposure for highly hazardous commodities. Liability for accident

involving nuclear material is already limited by the Price-Anderson

Act. Perhaps a similar system should be established for hazmat.

Other alternatives might be a Federal liability compensation fund,

a national wrap-up insurance program, or perhaps even a cap.
2

Hazardous materials are critical to the operation of many industries, for example, the fertilizer used by our farmer contains ammonia, and the plastic in your children’s toys have been made from

liquid plastic resins. These commodities are both shipped by rail.

Many water treatment plants use chlorine to purify drinking water

or decontaminate sewage. Again, chlorine moves almost exclusively

by railroad tank car.

While we must remember that the shipment and use of hazardous materials is not without risk, in the past several years we have

had a number of tragic accidents where railroad employees and

local residents were injured or killed in hazmat incidents. While I

favor taking all reasonable steps to reduce the risk to the public,

I want to make it clear that I do not think that allowing municipalities to reroute trains is a good idea. The rail system is not as

extensive as a highway system, and diverting a train from one

urban area would just as likely send it through a number of other

urban areas. The routing of trains is best handled at the national,

not local, level.

There is no railroad beltway bypassing Washington, and the cost

of constructing such a track would be cost-prohibitive. Rerouting

over existing tracks would force shipments to travel hundreds of

additional miles through dozens of communities. In some cases,

hazmat trains would be forced to use lesser quality tracks through

more difficult terrain, and rerouting would also cause additional

congestion on a national rail system already strained to capacity.

In the end, the disruption caused by rerouting trains might force

more hazardous cargo onto our highway system, a result that is in

no one’s best interest.

I believe that as far as hazardous cargo is concerned, the best

route is the shortest route. We need to encourage railroads to work

together to ensure that hazardous commodities are shipped as directly as possible, whether over the railroad’s own tracks or those

owned by another carrier. I hope that the Association of American

Railroads will discuss this issue today in their testimony.

At today’s hearing we also want to learn what we are doing to

reduce the risk to railroad employees and people living near the

tracks, and what we need to do to prevent future tragedies. In the

end, we all benefit from keeping hazardous cargo off the road and

on a safe, efficient rail system.

And before yielding to Ms. Brown, I want to ask unanimous consent to allow 30 days for members to revise and extend their remarks, and to permit the submission of additional statements and

materials by witnesses and members. Without objection, so ordered.

It is now my pleasure to yield to our distinguished ranking member, Ms. Brown, for any opening remarks.

Ms. BROWN. Thank you, Mr. Chairman, for holding this important hearing. I appreciate the work that you have undertaken to

discuss in a public forum the safety of rail transportation of hazardous material.

According to the Department of Transportation, rail accidents involving hazardous materials are decreasing. That is the good news.

Unfortunately, the bad news is that fatalities increased in 2005.

The major injuries resulting from rail transportation of hazardous
3

materials are the highest amongst all modes of transportation in

each of the last ten years.

The accidents in South Carolina, Texas, and North Carolina, and

the rail bombings in Madrid and London are a stark reminder to

this Congress that we need to do all we can to strengthen rail safety. We need to make sure that our laws and regulations are effective and that they are being enforced; that we are addressing the

right problems. Most importantly, we need to make sure our communities, our first responders and our rail workers are safe.

I believe a good start would be reauthorizing the Federal Railroad Administration.

The NTSB has made some excellent recommendations in their

accident report, including strengthening hours of service, improving

worker training, reduce speeds in populated communities, positioning tanker cars to reduce vulnerability, providing advance notice to

switch operators, workers, and providing train crew with proper

emergency equipment.

I do understand the pressures being faced by the rail industry,

but I am very concerned with any discussion that would reduce the

scope of the common carrier’s obligation or limit an individual’s access to fair compensation in an accident. The common carrier obligation needs to be taken very seriously by both the railroad and

this Committee. The Federal Government gave the rail industry

the land, the resources, and the equipment to build the Nation’s

railroad, and I believe it is only fair that the railroads fulfill their

obligations to serve the public.

There is no question in my mind that the railroad, chemical companies, and regulating agencies need to work together to come up

with a fair and equitable solution to this problem that protects

both the interest of the railroads and the safety of the American

public. Before I consider any solutions to this issue, I would like

to see some progress beyond just research and development of new

technologies to make rail operations safer, and I would like the

FRA and the railroad to start with the NTSB recommendation, at

the very least.

Mr. Chairman, I look forward to hearing from our distinguished

panelists.

Also, Mr. Chairman, I ask unanimous consent for Congresswoman Norton to sit and ask questions.

Mr. LATOURETTE. Without objection.

Ms. BROWN. Thank you.

Mr. LATOURETTE. I thank the gentlelady.

Mr. Simmons?

Mr. SIMMONS. Thank you, Mr. Chairman, for holding this important hearing.

As you know, I serve on the Homeland Security Committee, and

one of the important issues for that committee is to study rail safety. Our particular focus is rail safety from the standpoint of a terrorist attack, but we all know that there are broader safety issues

involving freight rail, and I think it is important that we have this

opportunity to hear witnesses and to question them on those broader issuers.

So I thank you and the Ranking Member for having this hearing,

and I yield back.
4

Mr. LATOURETTE. I thank you, Mr. Simmons.

Mr. DeFazio?

Mr. DEFAZIO. I will pass, thank you, Mr. Chairman.

Mr. LATOURETTE. Mr. Boswell?

Mr. BOSWELL. Nothing at this time, Mr. Chairman.

Mr. LATOURETTE. Mr. Barrow.

Mr. BARROW. Thank you, Mr. Chairman. The most meaningful

thing, the most meaningful statement I can make that is going to

come in the testimony of my friend and witness, Mr. Steven Bell,

who is battalion chief of the hazmat crew that actually responded

to the incident in Graniteville, South Carolina. So the sooner I shut

up, the sooner he can heard. So I am going to yield back the balance of my time so we can get to him sooner, rather than later.

Mr. LATOURETTE. I thank the gentleman.

Mr. Osborne, any opening remarks?

Mr. OSBORNE. No, thank you, Mr. Chairman.

Mr. LATOURETTE. Ms. Norton.

Ms. NORTON. Thank you very much, Mr. Chairman. I appreciate

the opportunity to sit in, as a very special situation has arisen involving precisely the issues that are under investigation here, and

I want to thank you, Mr. Chairman.

This is the first hearing I know in this Congress that has looked

closely at what is really a remarkably changed situation, unfair to

all concerned; certainly to the common carriers, who have to take

everything that is presented to them, and to those who live in the

many neighborhoods throughout the Country through which these

railroads go. And make no mistake about it, there is no major metropolis in the United States that does not have hazmat going

through it every day, and that is because that is the way we live.

These materials start out as toxic. They are often used to make

quite benign goods that we all need and use. So this hearing is a

real public service, but it is about a very controversial issue. Just

two and a half blocks from here is where some hazmat travels, we

believe on a daily basis, although that information has really not

been available to us.

A scientific study has been done about the effects of an explosion

within this region. It is truly frightening to have that presentation

made to me and to others in this region, where toxic fumes could

go for as much as 20 miles and, depending upon the nature of the

substance, could have either consequences of death within an hour

to making people very sick and taking longer to die.

Remember, we are talking about a mixture of many different

kinds of substances throughout the United States: chlorine, ammonia, hyperchloric and sulfuric acid, and substances that none of us

can pronounce because they are being invented every day. What we

do know is that, because of our science, we are able to invent increasingly functional but often increasingly benign substances as

well.

Now, I also am a member of the Homeland Security Committee.

You would think that that is where today’s hearing would be held.

The issues we are describing are more likely to occur where they

have already occurred—in South Carolina, in North Dakota—

through an accident. It is the same thing. Increasingly toxic materials, no guidance to the railroads, no guidance to communities as
5

how to handle this situation. Remember, when you put terrorist

threats and risks on top of the accident risk, you really do have,

if you will forgive me, a volatile situation.

I think what we have got to do is find a situation that is fair to

all. To show you how pathetic this can be, Mr. Chairman, a city

council passes a law to forbid these trains from going through the

District of Columbia. Well, the fact is they go through Maryland

and Virginia as well. And, you know, immediately you see an interstate commerce problem, a problem begging for Federal intervention.

The judge, however, asks to see this study. The judge, when he

sees the study, initially refuses to issue an injunction, despite the

interstate commerce implications. And there the suits stood for a

very long time, until the Administration intervened, Mr. Chairman,

to preempt the D.C. law, the Federal Motor Carrier Safety Administration.

Now, listen to this. They preempted the city council. That is the

easy part. This hearing is about the Federal responsibility to come

forward with a solution that is fair to all concerned. And let us be

clear, we are talking about millions of Americans who live close to

where these substances go.

The judge tried to broker a settlement because he saw in camera—that is to say, he saw off the record—what the possibilities

could be, and he was so frightened, he was not going to take it on

himself to issue an injunction. If that doesn’t tell us we have a

problem before this Committee, yes, and it is a difficult problem.

The problem that D.C. confronted was something that also was

not a solution. They simply wanted the trains rerouted. Well, Mr.

Chairman, you know what? The tracks are where they are. So the

notion of just picking up the trains and saying you don’t go there

anymore is not a solution to this problem. It may be that we are

talking about the Nation’s capital and you are talking about all our

monument and communities of three million people you may want

to do some rerouting. And CSX, the railroad involved, has said that

it has done some rerouting. We are not sure because no one has

that information.

But the fact is that is not the solution for the Country. Solution

of the issues that are before this Committee in part, is there anything we can do without so regulating a common carrier that they

can’t carry anymore, in which case we have a problem with everybody else? And there is the notion of what it is that communities

can do, given the fact that the tracks were laid decades ago to protect themselves, and the kind of guidance that should be offered.

So, Mr. Chairman, I hope that our Subcommittee, working with

the Homeland Security Committee, will come forward with something that will instill the confidence of the American people that

we are doing something about this. I want you to know that once

the city council brought its suits, then we had people all over the

United States writing to us saying can we do something similar.

We cannot leave this to individual jurisdictions.

First of all, they rightly have no jurisdiction. And if they don’t,

then the question is who. You are looking at who: us. And then the

fact that it is a hard issue, because we have got keep things going

and we have got to protect neighborhoods, is no excuse for not
6

working with the industry and working with the communities to

come forward with a solution.

I thank you very much, Mr. Chairman.

Mr. LATOURETTE. I thank the gentlelady very much.

And I am advised Mr. Cummings doesn’t have any opening remarks.

Mr. Sodrel, is there anything you want to say?

Mr. SODREL. No, I don’t have any opening statement. Thank you,

Mr. Chairman.

Mr. LATOURETTE. I thank you very much.

Our first witness this morning is our distinguished colleague

from North Dakota, Congressman Pomeroy.

Congressman, we thank you for coming very much. We assume

you are going to talk to us about your experience up in Minot,

North Dakota. Thank you for your busy schedule, and we look forward to hearing from you.

TESTIMONY OF HON. EARL POMEROY, AN AT LARGE REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH

DAKOTA

Mr. POMEROY. Thank you, Mr. Chairman. I will be brief. I know

that this Committee is wrestling, as you indicated in your opening

statement, with the national need to transport hazardous material

and the inevitability of rail playing a big role in the transportation

of hazardous materials.

A facet of this question, of course, is the recourse available to individuals that are harmed as a result of a railroad’s negligence in

the transporting of those materials. And I certainly don’t want that

important aspect of this public policy issue to be lost. That is why

I believe the incident in Minot is something you need to consider,

and the clear status of the law relative to those victims is also

something you need to consider in your deliberations. I so appreciate your allowing me to visit with you briefly this morning.

In the dead of winter, in the dead of night, a rail car derailed

just outside of Minot, North Dakota—a city of about 40,000. When

I say dead of winter, it was late January and the temperature was

well below zero. It was about 2:00 o’clock in the morning. People

were buttoned up in their homes and that was a huge blessing, because the derailment caused the rupture of seven tank cars of anhydrous ammonia, and a vast poisonous cloud—a thick fog moved

over a residential area and ultimately over the city itself before dissipating.

Unfortunately, it hung in the low spots longer, and in these residential areas there was enormous confusion. The train derailment,

in rupturing these cars, actually caused one of them to fly more

than 1,000 feet through the air and tore off the front end of a bedroom. If the couple in that bedroom had gotten up to look at the

window when they heard this enormous crash, they would have

been killed. Fortunately, they stayed in their bed. But we did lose

a life. An individual trying to get out of there, not being able to

see anything, got out of his vehicle and was overcome by this poisonous cloud.

Many individuals who went outside after the derailment will suffer permanent physical scarring, let alone the psychological horror.
7

It also took down the electrical lines. They were totally without

lights. And under the present system of emergency broadcast, as

they turned on the radio to find out what in the world was going

on, they got soft rock, classic rock, all night talk shows, and no information in terms of the deadly event that was unfolding in their

very neighborhood.

In 2002, the National Transportation Safety Board released an

investigative report into the incident and found nearly 2,000 defects along the Canadian Pacific rail line in North Dakota. Now, in

the ensuing litigation there was a very important ruling, a stunning ruling that came down just in March of this year. A Federal

District Court judge in North Dakota dismissed the claims of several victims of the Minot derailment. He found that under the Federal Railroad Safety Act, which contained a clause stating States

can only enforce an additional or more stringent law under limited

circumstances, that State tort actions were similarly barred and

that, therefore, these people had no recourse under State law.

The judge ultimately ruled—and this is against 30 years of judicial precedence, precedence including rail crossing litigation that

each of us would have had in our districts—that this portion of the

Federal Rail Safety Act preempted all State tort claims. With this

ruling and the absence of remedies in the Federal Railroad Safety

Act, the Minot derailment victims were left without any remedy for

their injuries.

Litigation continues on this case, but if the judge’s ruling is permitted to stand, these individuals will have no recourse for their

injuries.

What is presented before you, seems to me, are three options:

one, no recourse for innocent individuals harmed by virtue of the

negligent transportation of hazardous materials by railroad. I think

we would all agree that is unacceptable. People ought to have recourse for damages due to a negligent act.

The other two options are you can either leave the responsibility

with the railroads and allow them to price in the cost of insurance

and the cost of these recoveries into what they charge for transporting these hazardous products, or you can embark on some new

program that puts Federal taxpayers on the hook for compensating

innocent victims.

Innocent victims harmed; railroads price the cost of covering the

cost of that compensation or taxpayers take it over. Those are your

choices. I believe this responsibility is most appropriately borne by

the rail industry. But I know that in your deliberations you will

work this through.

What I hope you will remember is that innocent people can get

hurt or killed due to not just the hazardous material, but the negligent transport of that material, as the National Transportation

Board found relative to Canadian Pacific in Minot, North Dakota.

What do we do for those victims? I believe that we need to clarify

the status of things in light of this Federal district court in North

Dakota, and I wish this Committee its very best in its deliberations.

I would be happy to take any questions, Mr. Chairman.

Mr. LATOURETTE. Well, thank you very much, Mr. Pomeroy.
8

Does anyone have any questions of the Congressman before he

goes with our thanks? The gentlelady from Florida.

Ms. BROWN. Thank you.

I appreciate all the work that you have done on behalf of the people in North Dakota in the Minot accident. I agree with you, I don’t

believe that Congress ever intended for the Federal Railroad Safety

Act to prevent individual injuries in accidents from receiving just

compensation for their injuries. It is my hope that Congress can

ratify this situation. And given your background before you came

to Congress, what do you think about some kind of national insurance for this kind of situation and some of the other problems we

have experienced with the———

Mr. POMEROY. I thank the Ranking Member for her point. It

seems incredible after all these literally decades of litigation

against railroads, we have all had rail crossing cases in our districts, that suddenly a judge would say, no, railroads are not responsible. Unique to industries operating in this Country, railroads

are not responsible for their negligent acts. That is an untenable

result and we have got to do something about that.

My own thought is that rail companies, like any other company,

ought to have the incentive to avoid negligent acts that civil liability produces. If you do something wrong and you harm somebody,

you are going to have to pay for it, so you try to run your operations as safely as you possibly can. I think that is a healthy tension to leave through this liability on the rail industry.

Now, at the same time, a rail CEO probably doesn’t want to risk

the company’s exposure for that, so you want to get insurance. If

the insurance marketplace, Congresswoman Brown, has not provided sufficient capacity so that they can reasonably cover this

risk, maybe some type of Federal reinsurance layer ought to be established. I think we ought to charge for it. I think these are costs

that ought to be borne by the industry and priced into what they

charge for carrying hazardous product. That is an expensive shipping rate, and it ought to include all the risks involved.

In other words, I think that that might be one solution to this

problem.

Mr. LATOURETTE. Well, Congressman, thank you very much for

being with us this morning.

Mr. POMEROY. Thank you. Thank you, Mr. Chairman.

Mr. LATOURETTE. Mr. Barrow.

Mr. BARROW. This round of questioning has prompted a question

because I too am open to and sympathetic to the idea of spreading

the risk as far and wide as we can, but I think it is important to

recognize that good insurance takes those risks that can’t be avoided and spreads that as far and wide as possible. The question then

becomes how can we minimize the risk and what sort of insurance

plan is most calculated to actually reduce the risk.

I consider the taxpayer, the class of taxpayers who would subsidize a Federal insurance scheme and the class of consumers who

would end up subsidizing it ultimately under a scheme that puts

responsibility on the railroads to answer for the full cost of damage

done as a result of negligent handling of hazmat as being largely

overlapping. These are like Zen diagrams in which the two groups

largely overlap. There is not a complete coextensive overlapping,
9

but there is a significant extent to which the taxpayers and the

consumers, the folks who consume stuff that moves over rail, are

largely the same group.

So you could argue from one point of view that the cost is largely

the same and it is easier to manage from the taxpayer. My concern

is where is the incentive to minimize the risk if the taxpayers, represented by a board of directors that sits here in Congress, is the

group that is underwriting this and managing, where is the incentive to minimize the risk? If you have got stockholders for railroad

companies assuming the risk and managing this in the private sector, you might have an incentive to minimize the risk.

And, Mr. Hamberger, when you get a chance to testify, I hope

the folks will address this issue, because I think the pocket we are

reaching into ultimately is the same, but the management of the

risk problem and the incentive to increase profits by minimizing

these risks as much as possible rests more effectively with the private sector than with the public sector.

So I just want you all to be aware that is my concern. I think

the consumer and the taxpayer are largely the same folks. But who

is going to be managing the problem of minimizing the risk, because that is where I think we all want to get? We want to have

the fewest number of these incidents as possible.

Earl, I don’t know if you can address that, but that is an area

of concern that I wanted to put on the table after hearing the testimony.

Mr. POMEROY. I will be very brief, but I agree with that analysis.

I don’t think we want, on the one hand, to expose rail companies

to bankruptcy every time they run an anhydrous ammonia car

down the rail. On the other hand, I don’t think you want to make

this industry unique to other industries and say they are not responsible for their actions. Anybody needs to be responsible for

their negligent actions. They need to have some skin in the game

in the recovery business.

Mr. BARROW. Along those lines, in the health insurance industry

we have the idea of co-share and co-pay, a sharing of responsibility,

something like that, a blended area of responsibility. Just a

thought to consider.

Mr. LATOURETTE. Well, again, Congressman, I thank you for

coming.

I would tell you, Mr. Barrow, that I think that that is the first

time that the phrase ‘‘Zen diagrams’’ has been put into the record

of the Railroad Subcommittee. I appreciate that.

[Laughter.]

Mr. LATOURETTE. You go with our thanks.

On our second panel this morning, we are pleased to welcome

back the Honorable Joseph Boardman, who, of course, is the Administrator of the Federal Railroad Administration; and Mr. Robert

Chipkevich, who is the Director of the National Transportation

Safety Board, Office of Railroad, Pipeline, and Hazardous Materials

Investigations.

As soon as everybody gets situated. Gentlemen, thank you very

much for coming. We look forward to hearing from you.

Mr. Boardman, you are up.
10

TESTIMONY OF THE HONORABLE JOSEPH BOARDMAN, ADMINISTRATOR, FEDERAL RAILROAD ADMINISTRATION; ROBERT CHIPKEVICH, DIRECTOR, NATIONAL TRANSPORTATION

SAFETY BOARD, OFFICE OF RAILROAD, PIPELINE, AND HAZARDOUS MATERIALS INVESTIGATIONS

Mr. BOARDMAN. Thank you, Mr. Chairman, Ranking Member

Brown. I think I had the shortest oral testimony in history last

time. This one is going to be just a little bit longer, so if you will

bear with me. I appreciate being here today representing the Secretary of Transportation and the FRA.

I think you pointed out in your opening statement some of the

history of the Federal regulations on hazmat transportation with

the Hazardous Materials Act. I would like to talk about this in

terms of a design, construction, and maintenance of railroad tank

cars that has been regulated for much, much longer than many

people understand. As a matter of fact, it was in 1865 that the railroads began to really operate tank cars, and they actually regulated this for over 100 years.

In 1903, the master car builders at that time published the first

standards, and for chlorine tank cars it was three-quarters of an

inch of carbon steel surrounded by 4 inches of cork insulation and

an eighth inch metal jacket. In 1927, the ICC adopted those standards as Federal regulations, and they have progressed into our

present day requirements.

The NTSB has recognized that three major improvements alone

have reduced punctures, fires, catastrophic ruptures to tank cars,

that is, shelf couplers, both bottom and top couplers; head shields

on the front and rear tanks; and thermal protection of the tanks.

Those improvements have really come about with the efforts of

PHMSA, my sister agency, the FRA, and the industry working together to improve tank car safety in a long period of time.

But work to improve tank car survivability has not stopped. Skid

protection for protruding bottom outlets, part of the list of additional requirements that have taken 10 years to phase in will be

complete on July 1st of 2006. And research resulting from accidents

such as Minot or Graniteville and the SAFETEA-LU Section 9005

have all provided a continuing focus on the conditions of affecting

survivability and integrity of tank cars in an accident.

However, the FRA’s primary mission—and I also believe the industry’s primary interest—is in preventing accidents. We know the

causes for most accidents, and over 70 percent of them come from

just two categories. Human factors account for 37 percent of all accidents. Failure to clear the track, failure to clear a shoving move,

and failure to properly align a switch are primary factors relating

to accidents. The FRA will publish a proposed rule on these factors

this fall.

But regulation is only one of the ways we try to prevent accidents. Education is another. And we will publish a final report on

research that will help all railroads improve crew scheduling in August of this year. These are both part of the Secretary’s National

Rail Safety Action Plan announced last May. Other elements, like

the National Inspection Program, direct safety inspectors to where

problems are likely to arise, and all disciplines now are subject to

this new plan.
11

Track failure accounts for 34 percent of all accidents. Broken

rail, joint bars, and wide gage are the leading causes of track failure. Research is a key element of accident prevention. Vehiclemounted imaging technology to analyze rail joint bars to identify

and detect cracks has done so well that railroads are becoming believers very quickly and adopting the technology for their high-railers. The FRA will deploy two additional automated track inspection

vehicles that will be able to analyze, when combined with the one

we already have on the rails, 100,000 miles of track per year.

The FRA is also working with BMSF on remotely monitoring

switch positions in dark territory, and expect to issue a report this

fall. We will also begin a close call pilot project with the UP in

North Platte, Nebraska on July 1st, where what should have been

an accident, but was not, will be reported as part of our ongoing

research.

Railroad obligations to carry hazmat, routing requirements for

those shipments, preemption and liability exposures are important

issues and deserve serious discussion. Those serious discussions

are already being held not just here, but at the AAR, both at their

Tank Car Committee and their other meetings, the American

Chemistry Council and tank car builders, and the FRA’s RSAC

Committee and their working groups, and others.

The FRA wishes to complete the tank car research that it has

committed to prior to making major changes in the industry standard that the AAR Tank Car Committee is contemplating. The FRA

has accelerated its research by one year, adding additional resources to our plan to be done by research now in 2007, rather

than in 2008. We have also taken statements in a two-day information gathering here in D.C. on May 31st and on June 1st with over

20 speakers from the industry. We did this in conjunction with

PHMSA and will open a docket on the issue of the tank car construction.

I have been the administrator for a little over a year now, and

I can tell you that both the Department, led by the Secretary, and

the agency, filled with dedicated rail knowledgeable staff, keep all

elements of safety firmly in mind, with prevention being the primary mission and mitigation or survivability of an accident the

highest priority if the worst happens. Most railroads today are

striving for a safety culture in each of their work environments.

From the cab of the locomotive to the switching yard, working with

all interested parties, from management to union to customer to

consignee, safety can be and is being improved.

Freight scope is the newest reporting pilot that will provide better information to communities and those who need to know where

hazmat shippers are. Working with the TSA, the FRA short lines

and Class I railroads are making major improvements in near realtime reporting. I believe that working together will make railroads

safer and do it in a way that allows economic benefits to be balanced.

Thank you for your accommodation of my overrunning time.

Mr. LATOURETTE. Well, thank you very much, Administrator

Boardman. Just for purposes of the record, would you be kind

enough to introduce Mr. McGuire, who you brought with you?
12

Mr. BOARDMAN. Mr. McGuire is with the PHMSA organization

and is here as an expert if needed.

Mr. LATOURETTE. Thank you very much.

Mr. Chipkevich, welcome to you, and we look forward to hearing

from you.

Mr. CHIPKEVICH. Thank you. Chairman LaTourette, Ranking

Member Brown, and members of the Subcommittee, thank you for

the opportunity to discuss issues on the transportation of hazardous materials by rail.

Following catastrophic accidents in the 1970’s, safety mandates

such as shelf couplers, head shields, and thermal protection have

improved the performance of tank cars and accidents. Despite these

improvements recent accidents have raised new concerns about the

transportation of hazardous materials in tank cars.

The derailment of a Canadian Pacific train near Minot, North

Dakota in 2002 resulted in a catastrophic failure of five tank cars.

Each tank car held about 30,000 gallons of anhydrous ammonia, a

poisonous liquified gas. The accident resulted in a toxic plume approximately 300 feet thick and 5 miles long. An estimated 11,600

residents of Minot were affected. One resident was fatally injured

and 322 sustained minor injuries.

In 2004, a Union Pacific train struck a BNSF train as the BNSF

train entered a siding near Macdona, Texas. As a result of the collision, a tank car filled with chlorine was punctured. Three persons

died as a result of chlorine gas inhalation.

In 2005, a Norfolk Southern train encountered an improperly

aligned switch in Graniteville, South Carolina. The train was diverted onto the siding, where it struck a parked train head-on. A

tank car filled with chlorine was punctured, and 9 people died as

a result of chlorine gas inhalation and 75 were admitted to hospitals.

As a result of the Minot investigation, the Safety Board concluded that the low fracture toughness of steels used in the tank

shells that catastrophically ruptured contributed to their complete

fracture and separation. The Board recommended that the Federal

Railroad Administration conduct a comprehensive analysis to determine the impact resistance of the steels in the shells of pressure

tank cars constructed before 1989; based on the analysis, rank the

pre–1989 pressure tank cars according to risk and implement

measures to eliminate or mitigate those risks; to validate the predictive model being developed to quantify the dynamic forces acting

on railroad tank cars under accident conditions; and develop and

implement fracture toughness standards for steels and other materials of construction for pressure tank cars used to transport

liquified compressed gases.

We believe that the development of the predictive model and implementation of fracture toughness standards go hand in hand and

will lead to tank car designs that can provide improved structural

integrity and puncture resistance.

In Graniteville, the steel in the tank shell of the punctured chlorine car had a fracture toughness that was significantly greater

than the fracture toughness of the tank cars in Minot. Because of

the improved properties of the steel and increased wall thickness,

the Graniteville tank car was among the strongest tank cars cur-
13

rently in service. However, the Board concluded that, as shown in

the Graniteville accident, even the stronger tank cars in service

can be punctured in accidents that involve trains operating at moderate speeds.

Modeling accident forces and applying fracture toughness standards will improve the crash worthiness of tank cars. However, because of the time that it will take to design and construct improved

tank cars, the most expedient and effective means to reduce public

risk from the release of poisonous gases in accidents is for railroads

to implement operational measures that will minimize the vulnerability of tank cars transporting these products.

The Board recommended that the FRA require railroads to implement operating measures such as positioning tank cars toward

the rear of the trains and reducing speeds through populated areas

to minimize impact forces from accidents.

The tank car failures I have discussed are the consequences of

train derailments and train-to-train collisions. Reducing train

derailments and collisions can also reduce the risk of catastrophic

tank car failures.

Human performance failures have resulted in numerous collisions that could have been prevented with a safety redundant system such as positive train control. A recommendation to require

positive train control systems has been on the Safety Board’s list

of most wanted transportation improvements since 1990. Inadequate track maintenance and inspections have been causal to several serious accidents, including Minot. Greater attention to track

inspections and maintenance by the railroads and the FRA can

help reduce derailments and tank car failures.

Mr. Chairman, this completes my statement. I would be happy

to respond to questions at the appropriate time.

Mr. LATOURETTE. Mr. Chipkevich, thank you very much for coming and thank you for your testimony.

Administrator Boardman, I want to start with you. The members

of the Subcommittee have had the opportunity, twice in the last

couple years, to travel out to your testing facility in Pueblo, Colorado. It was recently—and for those who haven’t been out there,

they basically permanent train derailments for the purpose of

hazmat training and other training, and there was a group from

Union Pacific I think was training when I happened to be out

there.

I have been advised, though, that the facility in Pueblo has the

capacity to double or triple what the current amount of training

that currently goes on. Are you aware that you have additional capacity, that there is additional capacity?

Mr. BOARDMAN. I know that in some of the discussions, Mr.

Chairman, that we believe that we could use more training. We

have some, for example, other facilities that are beginning to train

now too, so, yes.

Mr. LATOURETTE. OK. I guess my question is why—has there

been any dialogue between DOT and FRA with the Department of

Homeland Security, and do you know why they wouldn’t be interested in using—the figure that I was told was that there could be

three times as many training sessions out of Pueblo as currently

exists, there is enough capacity for that. Are there discussions
14

going on with the Department of Homeland Security to get more

first responders trained in that type of setting?

Mr. BOARDMAN. Well, I think the Department of Homeland Security is using a training facility in Texas right now. Certainly, they

could. And I haven’t had any direct discussions with them, but I

can have. They could have use of especially train or locomotive railroad facilities if they come to Pueblo, and I will take that up with

the TSA deputy.

Mr. LATOURETTE. OK. I would appreciate that. Secondly, when

Congressman Pomeroy was talking, I think he was focusing on—

I guess it is the 8th Circuit, kind of a strange decision that indicated in the Minot hazmat release case, the decision held that the

Federal Railroad Safety Act preempts State tort law and precludes

recovery by an injured party for any alleged negligence in the accident. It came as a surprise to me, and I think it also came as a

surprise to the railroads. I am not going to speak for the railroads—in that they assume that section 201.06, on the preemption

of order and regulation, referred to regulatory requirements, not

tort law.

My question is was the FRA consulted, either on a referral basis

or did the district courts ever reach out to the FRA for the purpose

of filing an amicus brief just to collect the Administration’s view on

that?

Mr. BOARDMAN. We are considering being able to do something

like that. We have not been a party to this particular lawsuit. And

I do have some expectation—it is also being reviewed now—that

there might be a different decision.

Mr. LATOURETTE. OK. In my opening remarks I talked about the

fact that I don’t think rerouting, the city sort of up and doing this

not-in-my-backyard business is a good idea. But I do think that the

FRA has the authority—and I think you have already exercised it

under section 333—to promote a conference among the rail carriers

to, while shielding them from any antitrust violations, to discuss

more direct routing of trains, so that if you had a tank car filled

with chlorine that was leaving Louisiana, that it wouldn’t have to

go to Detroit before it came back down to Cincinnati, it could just

be more direct. So I appreciate that kind of effort.

Is it your understanding that the Department of Transportation

has any coercive ability, and that is, when you listen to Mr.

Chipkevich’s testimony, he didn’t say the best tank car, but I understood him to say that the one in Graniteville was a pretty good

tank car based upon today’s standards, and any tank car, even

with that kind of technology, in a, I think he said, a moderate

speed collision, we can have difficulty.

Is it your understanding that the FRA or the DOT has the ability

to coerce or mandate that less volatile alternatives be shipped than

are actually—for instance, if a conclusion is reached that we can’t

safely ship a certain substance without the danger of release in a

moderate collision accident, do you think that the FRA has the

ability to preclude the shipment on some lines of exceptionally hazardous materials?

Mr. BOARDMAN. I believe that a large part of that body of ability

rests with the STB, rather than with the FRA. And certainly there

is an interest on everybody’s part in reducing the risks. And I know
15

in some cases, in terms of the kinds of things that have happened

with railroads, that they would just as soon not carry some of this

material, but they do have a safety record. In fact, Mr. Chairman,

if you look ever the last ten years, while every life is absolutely

precious, we have lost 14 of them to releases in the railroad industry and over 100 in highway-related hazmat releases, and I think

that that alone demonstrates the safety of the rail side.

Mr. LATOURETTE. Thank you.

Mr. Chipkevich, just one question for you. I was visited by the

family of the engineer who lost his life in the Graniteville accident,

and they made the observation or had the opinion that if the train

had been outfitted with breathing equipment, their son may have

survived. Did the NTSB make any recommendations or observations relative to train crews being given gas masks or other escape

hoods for these types of collisions?

Mr. CHIPKEVICH. Yes, sir. The Safety Board also found that the

engineer had survived the dynamics of the crash and had ultimately died from inhalation of chlorine, and we have made a recommendation to the FRA to look at providing a requirement to provide protection for crew members to be able to escape that type of

situation.

Mr. LATOURETTE. OK. Thank you very much.

Ms. Brown?

Ms. BROWN. Mr. Boardman, I want to follow up on that question.

The NTSB has recommended that railroads provide emergency escape breathing apparatus for all crewmen on freight trains carrying hazardous materials. What is FRA’s response to this recommendation?

Mr. BOARDMAN. It is a recommendation that we certainly are

looking at in terms of what are the elements of this. I would like

to take you back for a minute, if you would, to my younger days

as a transit manager in Binghamton, New York, when there was

a derailment and a release many years ago, when I was not involved with the FRA or the railroads. My job at the time was to

evacuate the community and the senior citizen centers and some of

the facilities, and you had to tell your drivers to go down into the

location where this release occurred, and we did that.

There was a delay on the part of decision-makers about when

they were going to release the senior citizens from the home. And

I know one of the things that we had in discussion with our union

and our employees was perhaps if we were going to do that kind

of thing in the future, we needed to have some kind of a breathing

apparatus that would assist us.

So part of the difficulty here—and it is a very complicated issue

in the fact that it cannot be a filtered apparatus, because a filtering

apparatus would only be for something that was within the air and

didn’t displace the air like some of the hazardous materials that we

are dealing with. So we are really talking about an air pack type

of a breathing apparatus, if that is necessary. And the training, the

inspection, and all the things that go along with it are all additional complications in the process, but something we are looking

at.
16

Ms. BROWN. In SAFETEA-LU we provided $4 million per year to

nonprofit employee organizations to train hazmat employee instructors. What is the status of implementation of that program?

Mr. BOARDMAN. Yes. As part of SAFETEA-LU, the grant program was greatly enlarged, and one of the new provisions was for

that program. We are working to implement that program. It will

be implemented in 2007. The passage of the bill was such that we

could not get the funding and get the procedures underway for this

grant cycle, but it will be implemented next year.

Ms. BROWN. Mr. Chipkevich, in the Amtrak accidents the NTSB

has investigated, how many of those accidents was Amtrak’s fault

and how many was the freight rail’s fault? Who is responsible in

the event of an Amtrak accident, Amtrak or the freight railroad?

Mr. CHIPKEVICH. In the past ten accidents we have investigated

involving Amtrak, eight have been derailments because of track

problems, and they were operating on tracks that were owned by

freight railroads. The other two involved collisions, one is up near

Syracuse, New York, where an Amtrak train rear-ended the rear

of another train and a side collision in Baltimore with a Marc

train.

Ms. BROWN. Just to follow up on that one, so, I am not clear.

Who is responsible for maintaining the tracks?

Mr. CHIPKEVICH. Well, in the eight accidents we investigated, the

track was owned by the freight carrier and would have been maintained by the freight carrier.

Ms. BROWN. Well, who pays the damage?

Mr. CHIPKEVICH. NTSB does not get into the damage issue of

who pays cost on that, but, rather, in determining probable cause

and finding track-related problems, that would have been track

maintained by the freight carrier.

Ms. BROWN. So you can’t answer that question or you don’t get

into it? Do you know the answer to it?

Mr. CHIPKEVICH. That is correct, we don’t—NTSB does not determine liability, and so as far as issues regarding payment later and

things of that nature, NTSB has not gotten into.

Ms. BROWN. Mr. Boardman, can you answer that question?

Mr. BOARDMAN. Generally, it is Amtrak is liable and responsible

based on the agreements that they have with the freight railroads.

Ms. BROWN. So whether they are at fault or not, they have to pay

for the accident?

Mr. BOARDMAN. If there is a claim that occurs. Now, for example,

I think—and I don’t know, maybe Ed or somebody can help me out

a little bit with this, but the freight railroads would be responsible

for repairing their own facilities, I believe, but in terms of damages

or suits to people, it would be Amtrak.

Ms. BROWN. So just help me here, now. Of the ten accidents that

Amtrak has been involved in, eight of them were caused by the

tracks not being kept up properly. So Amtrak, from what he is saying, was not really responsible for it, but they had to pay for it.

Mr. BOARDMAN. That is correct, if that is the way Chip has put

it down. Amtrak is responsible for accidents that occur.

Ms. BROWN. Whether they are at fault or not.
17

Mr. BOARDMAN. That is a relationship between them and the

freight railroads themselves for a right to operate on the freight

railroads’ facilities.

Ms. BROWN. Well, do you not think it is the responsibility of the

railroad to make sure that the track is in proper———

Mr. BOARDMAN. It absolutely is a responsibility of the railroad

for that, of the freight railroad.

Ms. BROWN. All right, Mr. Chairman.

Mr. LATOURETTE. I thank the gentlelady.

Mr. Simmons.

Mr. SIMMONS. Thank you, Mr. Chairman.

I would like to make reference to a report produced by the Teamsters Rail Conference called High Alert. I think the witnesses may

be aware of this report. The topic is ‘‘Workers Warn of Security

Gaps on the Nation’s Railroads.’’ And one of the areas that is of

particular interest to me is the area of railroad security or railroad

police, and one of the sets of questions that was put out in a poll

to railroad workers is: Was the rail yard access secure today? Yes,

6 percent; no, 94 percent. Was there a visible rail police presence

in the yard today? Yes, 4 percent; no, 96 percent. Was equipment

access secure today? Yes, 10 percent; no, 90 percent.

I guess my question goes again to the issue that rail safety can

be an issue of negligence, but it can also be an issue where some

foreign entity, a terrorist group or some other disruptive group,

wishes to take advantage of the openness and access of our infrastructure to cause us harm and to cause us damage. We are certainly familiar with the attacks on the railroads in Spain, which

were passenger railroads, and of the subways of London.

So my question to you as Federal regulators is what role or responsibility do you have for rail security through rail police or

other police measures, and what progress are we making to improve that security in the yards, on trains that are idling without

crews on board, on movable bridges and other nodes of access for

terrorist groups.

Mr. BOARDMAN. Congressman, I think that ever since the events

of 9/11 there has been a continuing debate, struggle, difficulty on

the openness of our society and how we deal with the availability

of everything that is out there in front of us, and we recognize, for

example, at the FRA, when you look at, today, the results of how

people are killed on the tracks or fatalities occur, that a large percentage of that, matter of fact, the highest level today is trespass,

and people that are getting on the tracks, that are getting near the

tracks, that we are having a great difficulty with that.

And we are trying or find the profile—the largest majority of

that, in fact, all of them, are not terrorists, they are just people

who are trying to exercise, they are people who are trying to find

a quiet place or having a party of some sort or we don’t know all

the reasons why. That is a real problem for our industry. The railroads themselves, the FRA and our encouragement in the process,

have begun to really think about how do we train, how do we tell

our employees to try to be more secure. The common sense of people in sometimes just throwing their hands up; well, what does

that mean, how do you deal with this?
18

I recently watched a video, I think, produced by Norfolk Southern that really made a lot of common sense, and what it was was

that it is those people that are employed every day that are in that

facility, that go to work every day, that knows when something is

out of place. And I think that part of the education that is occurring here today is to be much more vigilant in terms of what is

going on around you.

For example, in our own building on Vermont Avenue here this

past fall, we share that with some of the DHS folks, and there is

always something going on with DHS in terms of the building

itself. They have a larger part of that particular facility than the

FRA does.

And I walked out one afternoon and there were people taking

pictures and writing notes around the building, looking at the

building, and I thought to myself, OK, if I am supposed to be paying attention to what is going on around me, I am going to go up

and introduce myself and find out what these folks are doing. And

they were doing a contract for DHS, but we weren’t told at the time

that that was the case, and I went over to find out what happened.

I think what we see happening today—and I understand the high

alert and the interest of the employees, because there is a high

level of anxiety that occurs out there, not just in terms of the potential for somebody putting an IED on one of the trains—and that

is part of what is in the video, looking, as you inspect your train,

as you walk your train, what can you see?

Mr. SIMMONS. Mr. Chairman, if I could interrupt, because my

time is rapidly disappearing, and I don’t think I am getting the answer that I want to hear.

One of the other questions was has your railroad increased the

frequency of inspections at critical infrastructure secure points? No,

42 percent. What additional training related to terrorism prevention have you had, if any? No, 83 percent.

My question is what is the FRA doing to try to implement a program either to educate employees—I agree employees are the ones

that know the yard best; it is like a neighborhood watch. Have they

been brought into the system of securing these facilities? Is there

a reporting mechanism that the FRA has recommended on these

issues? And I am not hearing that there is any such program.

Mr. BOARDMAN. I understand. And I think we are working with

TSA, who has the primary obligation for security, to try to make

those things happen.

Mr. SIMMONS. Thank you, Mr. Chairman.

Mr. LATOURETTE. I thank the gentleman.

Mr. DeFazio.

Mr. DEFAZIO. Thank you, Mr. Chairman.

Mr. Chipkevich, I notice that you say—there are two things that

sort of jump out at me here. One is—and I am more familiar with

your frustrations in the area of aviation security that I see here,

or aviation safety. A recommendation for requirement for positive

train control systems has been on the Safety Board’s list of most

wanted transportation safety improvements since 1990. That would

seem to be 16 years ago. And I note that apparently the FRA response has been to develop standards, but no mandate, is that cor-
19

rect? And does that meet your concerns, by having standards but

no mandate for positive train control?

Mr. CHIPKEVICH. Well, that is correct. We certainly believe that

there should be a requirement for positive train control systems.

We have investigated a number of accidents that are continuing to

occur that are either collisions, missed signals, running through

switches that were left in the wrong position, things of this nature

that can be prevented by a train control system. We know and understand that some of the railroads are working to develop those

systems, and we have seen more work in the last couple of years

than we have in a long time, but we certainly still feel that this

is something that should be required.

Mr. DEFAZIO. And I know, as you said in response to an earlier

question, you don’t determine liability and that, but if—and perhaps you may or may not want to venture an opinion on this, but

if the rail industry is asking for some sort of safe harbor, partial

protection or mandates regarding shared liability or liability limits,

do you think that implementing these sorts of procedures would be,

one, sort of minimal prerequisite to Congress going down that

path? Because otherwise it seems to me if they haven’t implemented positive train control—you have identified it to be a frequent and ongoing problem—that not having that as a mandate

would be a problem. Or maybe the ones who voluntarily do it could

get some assistance or limits on liability, and the ones who don’t

want to, they can just be out there.

Mr. CHIPKEVICH. Well, we have not ventured into the liability

issue area; however, we do believe that positive train control is a

very important safety redundant system. It is across the Nation

where we have had—it is not just in one local area, but across the

Nation where we have investigated head-on collisions and a lot of

accidents where we believe that would be very effective.

Mr. DEFAZIO. All right.

So, Mr. Boardman, why would we just make it advisory, voluntary, and not mandatory, with some sort of reasonable period to

phase that in?

Mr. BOARDMAN. Congressman, I think that what we have worked

with is with the railroads to develop the right kind of assistance,

and certainly on the northeast corridor today and the communication-based train control with Amtrak, that is working.

Mr. DEFAZIO. Yes, but we are here talking about freight, we are

not———

Mr. BOARDMAN. But we also have a product safety plan from the

BNSF right now for an ETMS system, and we think we are making

progress in that area.

Mr. DEFAZIO. But why wouldn’t you want to make it a requirement instead of voluntary and phase it in over a period of time if

it has been identified consistently as a factor in accidents and it

has been, for 16 years, their most wanted improvement in rail safety, and many accidents have occurred since then?

Mr. BOARDMAN. Because what we really believe is that there is

a need for us to have the technology and a cost benefit that provides the right facility for the future.

Mr. DEFAZIO. Well, cost benefit, but they are asking for some liability exemptions. So how would we factor that in?
20

Mr. BOARDMAN. Well, I think———

Mr. DEFAZIO. I mean, the point here is that there should be some

quid pro quos. The chemical industry is going to have to take part

of the cost here with improved design of the cars. The rail industry

wants some relief here, but I think there should be some improvement in performance required to get any sort of relief that Congress might grant them.

And you are saying, well, someday, if it fits their cost model and

when we have railroads like in my part of the Country being dominated by UP, who has been, you know, until very recently,

disinvesting in the system, I don’t see that they are exactly a leader in new technology and positive train control or moving in that

direction without some sort of mandate or deadline.

Mr. BOARDMAN. I think the UP is, but I do understand your

point.

Mr. DEFAZIO. OK. But, again, I am going to suggest strongly to

the Chair, if we are going down that other path, that there is going

to be some sort of quid pro quo.

Where are you on the standards we required in TEA-LU,

SAFETEA-LU in terms of developing new models and standards?

It seems to me another thing here that seems like a no brainer—

but I guess, again, it might impose some minimal cost because they

would have to move cars more—is, Mr. Chipkevich, would it really

help to put these cars toward the rear of the train?

Mr. CHIPKEVICH. We have reviewed studies that have been conducted in the past, and the answer is yes. We believe that certainly

the forces involved in an accident, the energy, would be significantly less affecting the cars towards the rear of the train. And

studies that we have looked at have supported that.

Mr. DEFAZIO. So, Mr. Boardman, where are we on perhaps asking them to develop voluntary models———

Mr. BOARDMAN. We don’t agree with NTSB.

Mr. DEFAZIO. Oh, you don’t.

Mr. BOARDMAN. We have looked at our own studies, and random

placement of the cars is just as good as the other kind of placements, placements to the rear. For example, if you are going to specifically locate them, the number of times that you have to cut the

train and move them increases the risk of the opportunity for a release.

Mr. DEFAZIO. So cutting and moving at very slow speeds in yards

is as dangerous as trains being derailed operated at higher speeds

and/or crashing?

Mr. BOARDMAN. They are for employees, Congressman.

Mr. DEFAZIO. Right.

Mr. BOARDMAN. For the employees of the railroad. And the nonaccident releases that we have each year, which are nearly 700, are

really on the low-speed yard kind of transfers, and those kinds of

things increase the risk, we think, for the overall picture.

Mr. DEFAZIO. OK.

Thank you, Mr. Chairman. My time has expired.

Mr. LATOURETTE. I thank the gentleman.

Mr. Cummings?

Mr. CUMMINGS. Thank you very much, Mr. Chairman.
21

Mr. McGuire, Section 7131 of SAFETEA-LU requires PHMSA to

conduct nine multi-modal studies on hazmat transportation as described in TRB Special Report 283, and I am wondering, DOT is

to submit a report on the need for cooperative research program on

hazmat transportation.

Can you update us on the status of that? That was my provision.

Those are my provisions in the SAFETEA-LU bill, and I just want

to make sure it is working and something is happening. You can

go ahead.

Mr. MCGUIRE. Yes, Mr. Congressman. We have put in place a

contract with the National Academy of Sciences. We are negotiating with them right now. The funding for this year will be about

$900,000 because of the over-subscription of the Highway Trust

Fund. But those monies are now available to us and we are working on setting up the oversight committee for the cooperative program, and that program will be underway by the end of this fiscal

year.

Mr. CUMMINGS. OK, thank you.

Mr. Chipkevich, I want to return to the hazardous materials

transportation issue. In January of last year, the NTSB released a

brief on the Baltimore Tunnel fire that actually took place back in

2001. In other words, NTSB took three years, three years, to release a report on this accident. Can you explain to me why it takes

so long, particularly when you are talking about hazardous materials, you are talking about safety issues, things that probably need

to be corrected, and it takes three years?

Mr. CHIPKEVICH. Yes, sir. That was an accident that we could not

determine what the cause was. We spent extensive resources to do

a finite element analysis of the tunnel structure, to do further examination. There were millions of gallons of water that flushed

through that tunnel following the accident, before we could get access to it, so there was a lot of work and examination done.

On the contrary, the accident in Graniteville, South Carolina, we

did complete in less than a year, where the circumstances were

more clear on what the cause of that accident was. So sometimes

the complexity of the accident, as well as our resources, will affect

how long it takes us to complete it.

Mr. CUMMINGS. Talking about resources, do you feel that you

have enough resources and personnel to do what needs to be done?

Mr. CHIPKEVICH. We have asked for additional resources in the

past, and we have 13 investigators, basically two teams to cover

the entire United States for all accidents.

Mr. CUMMINGS. So in a reasonable, ideal situation, how many

teams would be suitable and reasonable?

Mr. CHIPKEVICH. Certainly, we have provided—we can provide

for the Committee the requests that we have made by number in

the past, but we have asked for, gosh, in the neighborhood of about

double the number of investigators that we do have.

Mr. CUMMINGS. All right, so, in other words, basically four

teams?

Mr. CHIPKEVICH. Yes, sir.

Mr. CUMMINGS. All right, fine. Let us go back to you just mentioned the Graniteville, South Carolina situation. Tell me, what do

you believe needs to be done to improve the ability of local first re-
22

sponders to respond to a hazardous materials incident on a train?

In other words, what are the main weaknesses in our current first

response capability?

Mr. CHIPKEVICH. Well, we felt in Graniteville, the local emergency response staff did a very good job, considering the situation

that they faced. We believe that—and we have done studies over

the years with a lot of accidents—a need for there to be good coordination ahead of time between local responders and the railroads so that when an accident happens, local responders will be

able to get information from the railroad quickly about what is involved in the derailment, and then can make a good decision on actions that they need to take, whether it is evacuating or sheltering

in place, and what type of resources they would need. So I think

the most important issue is preplanning and coordination between

railroads and the emergency responders.

Mr. CUMMINGS. Mr. Chairman, I will yield back to give somebody

else time to ask questions.

Mr. LATOURETTE. I thank the gentleman very much.

There are currently two votes occurring on the floor, so we are

going to stand in recess. The Chair would ask members that have

additional questions of this panel to sort of hustle back after the

second vote. We have two more panels that each have four witnesses, and the Coast Guard Subcommittee wants the room at

1:00, so we want to try and move forward.

We stand in recess subject to the votes on the floor.

[Recess.]

Mr. LATOURETTE. If I can ask everybody to find a seat, we will

get started. I apologize for the delay. They tell us the next votes

are going to be in a couple hours, so hopefully we can get through

the other two panels.

Mr. Barrow.

Mr. BARROW. Thank you, Mr. Chairman.

Mr. Boardman, if I understand correctly, the NTSB is of the view

that car placement is in the area of railroad operations that can

address not the issue of trying to reduce mishaps, but trying to

make them more survivable, more crash worthy. The issue of car

placement moves on a parallel track, it seems to me, then the issue

of trying to prevent accidents, because if we can make all these poison containers absolutely puncture-proof in any and all incidents,

we could tolerate a fair number of mishaps and nobody—no innocent bystanders would be hurt. But since we can’t, we can’t eliminate mishaps altogether, it seems to me we have got to try to move

the train down the track on parallel tracks.

We ought to try to make accidents as preventable as we can. We

also ought to make them as survivable as we can. And making

them more puncture-proof is one way of making them survivable.

That leaves the universe of incidents and accidents just as violent

and just as frequent as they are right now. All the things being

equal, make them tougher and they will be more survivable. All

things being equal, reducing the number of incidents and you have

got more people surviving.

Let us take the same number of incidents. Just take the equipment as we find int, but rearrange stuff on the trains in such a

way as to put stuff in different areas of the train, and a good case
23

can be made that you can make a lot of these incidents more survivable for people, for all concerned.

Now, I hear the NTSB saying that is what we ought to do, and

I hear you saying that the FRA disagrees with that assessment because you all throw into the assessment the frequency of minor

mishaps happening in the yards at yard speeds, and incidents like

that. And you say when you compare that to the incidents we are

dealing with at track speed incidents, it is really more risky to

have a policy of deliberate placement of hazmat cars toward the

end of trains. You say random placement is better than a consistent policy that tries to minimize the incidents.

But I read that back in 1992 the FRA issued a report, and it was

entitled ‘‘Hazardous Materials Car Placement in a Train Consist,’’

and it took the exact opposite position that you are expressing

today. What happened between 1992 and today to make a policy

of placing your more hazardous stuff toward the rear of the train

a better idea back then than it is now?

Mr. BOARDMAN. I think, Congressman—and I understand, it is a

very thoughtful question and you certainly got to the heart of a lot

of the issues. We certainly have a—when a consist goes together,

a preferred way that we would like to see the consist put together

with hazardous materials. For example———

Mr. BARROW. I heard you before say that random is better

than———

Mr. BOARDMAN. Well, I may have misspoken in some ways, but

the study that I am relating to—and I can ask staff for a little

more specificity to it—is we looked at the random placement of cars

on the———

Mr. BARROW. Is it a published report?

Mr. BOARDMAN. Yes, I believe it is.

Mr. BARROW. Can you get that for us?

Mr. BOARDMAN. Certainly. We looked at that and we found that

there really wasn’t a difference in the kind of risk that you were

dealing with with that random placement, especially when you

look———

Mr. BARROW. Well, let me tell you the difference that I foresee,

because I can see, right offhand, a difference between a lot of mishaps involving trains moving around in the yard at 4 and 5 miles

an hour. The zone of people responsible for the mishaps are the

people exposed to the risk. They are trained to prevent the mishaps. They are the ones who face the consequences if there are any

mishaps, and the mishaps are much smaller in proportion because

you have got minor things happening in the same place at minor

speeds.

You contrast that with incidents that occur at track speed out in

dark territory in the middle of the night, the risk of a bigger spill

is much greater, the universe of people who are affected by the risk

is altogether different. You are not talking about folks who are

trained to prevent it and trained to respond to it, you are talking

about innocent bystanders dying in their sleep.

I just cannot understand how there is—of course, if we had that

kind of thinking, that because you have got a new kind of risk created by this policy, as opposed to the old kind of risk we are trying
24

to eliminate, we would never have seatbelt laws. There are people

who are actually injured as a result of seatbelt use.

But the number of people who are saved by seatbelt use is vastly

larger. The risk of preventable harm is greatly reduced by a deliberate policy of seatbelt use. And this Government promoted that

through laws that encourage folks to assume the much smaller risk

of being hurt by a seatbelt in exchange for the much greater benefit of not being harmed by not wearing seatbelts. When we spread

that across the whole universe of people exposed to risk, that is the

benefit, the public safety benefit we get out of that.

I have a hard time understanding how the FRA can think that

what happened to the folks at Graniteville is the price we ought

to pay in order to minimize the number of———

Mr. BOARDMAN. Well, the FRA did not say that, Congressman.

Mr. BARROW.—to minimize the much smaller risk of harm to a

much smaller zone or universe of trained professionals who are

trained to prevent much smaller mishaps from happening and who

are trained to respond to it. Seems to me that is a hell of a policy.

Mr. BOARDMAN. I understand, and I will get you that study.

Mr. BARROW. Yield back.

Mr. LATOURETTE. I thank the gentleman.

Ms. Norton.

Ms. NORTON. Thank you, Mr. Chairman.

Mr. Chipkevich, I just want to confirm that on April 10th your

agency preempted D.C. law and gave 20 days to appeal. What is

the status of that, has there been any appeal of that?

Mr. CHIPKEVICH. No, ma’am, that would not be our agency.

Ms. NORTON. That wasn’t your agency?

Mr. CHIPKEVICH. Pardon me?

Ms. NORTON. That was not your agency?

Mr. CHIPKEVICH. No, ma’am.

Ms. NORTON. Oh, no, I am sorry, you are the National Transportation Safety Board. I am sorry.

Mr. CHIPKEVICH. Yes, ma’am.

Ms. NORTON. Mr. Boardman, do you know the status of———

Mr. BOARDMAN. Congresswoman, I was just checking. I think

that is FMCS. Do we know the—we do not know.

Ms. NORTON. As I indicated in my opening statement, I am also

a member of the Homeland Security Committee, and I appreciate

that we are discussing liability here, but I suppose the fact that I

represent the District of Columbia and am on that Committee gives

me a notion of preemption as well. It is less preemption of law than

preemption of accidents and risks.

I recognize the difficulty posed by the increasing toxicity of what

you are forced to carry, what railroads are forced to carry, and the

risks from terrorism. May I ask, Mr. Boardman, if hazardous substances are still being transported within two and a half blocks of

the Capitol itself?

Mr. BOARDMAN. We would have to defer to TSA to answer that

question to know specifically whether that is occurring.

Ms. NORTON. You do not know whether or not—you, the Railroad

Commission, do not know, do not have any information———

Mr. BOARDMAN. Congresswoman, it is part of their security program, and we do not talk about their mitigation measures.
25

Ms. NORTON. So you know but will not talk about their mitigation?

Mr. BOARDMAN. I am not permitted to talk about it. TSA should

be the one that answers that question.

Ms. NORTON. Well, you can imagine the position it leaves those

of us who come to work every day in the Capitol and those of us

who happen to live in this region, including 200,000 residents who

cannot find out even at a hearing whether or not these substances

were still traveling close to the monumental core. The notion that

that—we had information, for example, to the effect that that was

not the case, but you are saying you cannot confirm that that is

the case?

Mr. BOARDMAN. Congresswoman, we can give you that information, but not in a hearing open to the public. We can provide that

information.

Ms. NORTON. I very much appreciate that that might not be information you could give here. How might I be assured of getting

that information? I also have no reason to make public information

that is secure information. I am a member of Congress. I am simply trying to find out.

Mr. BOARDMAN. I understand absolutely. And I will make sure

that———

Ms. NORTON. You will personally make sure I get the information?

Mr. BOARDMAN. Yes.

Ms. NORTON. Mr. Hamberger, I was interested in your testimony

where you took on some of these issues———

Mr. HAMBERGER. I am on the next panel.

Ms. NORTON. Sorry?

Mr. HAMBERGER. I am on the next panel.

Ms. NORTON. Sorry?

Mr. HAMBERGER. I am not on this panel, I am on the next panel.

Ms. NORTON. Well, who—you are on the next panel? I will have

to wait for you? All right, I will do that. I will do that.

Let me ask you, Mr. Boardman, the difficulty created by the suit

from a local jurisdiction trying to take trains and reroute them

surely points up an issue of national concern. I indicated to you

that I certainly didn’t see how people could reroute trains where

tracks had been laid long ago. We, of course, have discussed liability and ways to spread the liability. That is very important. And

you are taking actions, as are the railroads.

This is a very old industry, old tracks, lots of problems just to

keep the tracks in working order. Rerouting always seemed to me

to be an impossible solution. Perhaps some rerouting within the

capital only, but that would be a one of a kind matter because it

is the capital of the United States, and these trains are routed so

close to the monumental core. So that certainly wasn’t a solution.

Have you thought about—given the fact that this is a chess game

where you cannot move the pieces, have you thought about ways,

short of rerouting, to mitigate the harm? I am talking about ways

like when such substances travel, for example—I don’t know, you

tell me. Since you are so closed in, so fenced in by the nature of

the industry you regulate, the railroads themselves are fenced in

because they have to carry everything, and yet are placed in this
26

position. I am astounded that we have not taken action of the kind

we have taken to protect the nuclear industry, for example.

But short of impossible solutions like rerouting, given you have

the cards you have been dealt, and considering that these trains

necessarily now travel through the most densely populated areas of

our Country, are there ways, short of rerouting, to mitigate the

danger to these populations?

Mr. BOARDMAN. Congresswoman, we have, in the work that we

have done—and I spoke a little bit about in my opening statement—the work that we have done with the couplings and the

work we have done with head shields on the tank cars, on the work

that we have done on our new thermal coating on the tank car

itself, those kinds of things have reduced the risks to what we need

to do substantially. We have also———

Ms. NORTON. Does that mean that, for example, if there were an

attack on a hazardous substance car—because, you know, we have

been shown these scenarios—that you think that the coating and

the reinforced cars would protect———

Mr. BOARDMAN. We already know that the particular insulation

coating for cars that would be on fire is working. We don’t have a

catastrophic failure of the car itself because of that technological

change. That has already been proven, we know that. There is another coating that exists that we are testing at this point in time,

that has been used in the war zone, to try to minimize the impact

on the tank car itself, and we are actually looking at how railroads—on our new rule that we are working with PHMSA on—

might reroute, frankly, to reduce the risks that are out there today

along with what the Chairman brought up earlier, on having a 333

conference of the chemistry industry and the railroads to try to reduce the risks.

You certainly have pointed out to us today an understanding of

how difficult this problem is, and we do appreciate that. We understand and value every life that is out there today, whether it is in

a rural area or whether it is in an urbanized area, and we are taking every step that we can to look at how we would reduce the risk.

Ms. NORTON. Well, finally, I think that the railroads are in an

inherently impossible position. I really think that the Homeland

Security Committee and the research that only a national government can do can help us deal with and that the oldest transportation industry in our Country, and one which I think is far more

vulnerable to attack than, for example, the industry we have fixed

because it was attacked. I regard the North Dakota and South

Carolina accidents as a shot across our bow, and it tells us, of

course, that accidents are going to be the problem that we have to

be very careful with.

But the notion, when we consider the fallout in lives and in communities from those accidents ought to make us work very closely

with the Homeland Security Committee to get a national approach

so that we can assure people in metropolitan areas that we are

working very fast on this problem. I mean, we are working very

fast on problems like Avian flu, where we can’t find any birds in

this Country and we can’t find any way that the disease is passed

on, because we want to prevent the disease. We have had these ac-
27

cidents. We have got to do more to speed up protection of this industry.

Thank you very much, Mr. Chairman.

Mr. LATOURETTE. I thank the gentlelady.

And Administrative Boardman and Mr. McGuire and Mr.

Chipkevich, I thank you very much for your testimony. I thank you

for answering our questions and, again, I apologize for the delay

that occurred within the votes. But you go with our thanks.

Our Ranking Member, Ms. Brown, had a problem with her

schedule and she will be joining us later, but she mentioned to me

before she left that she may have a couple additional questions,

and I will have her submit them, and if you could get back to us,

we would appreciate it. But you go with our thanks. Thank you

very much.

In our third panel this afternoon we will hear from Mr Thomas

D. Simpson, who is the Executive Director of the Railway Supply

Institute; Mr. Thomas Pontolillo, who is the Director of Regulatory

Affairs with the Brotherhood of Locomotive Engineers and Trainmen; Mr. Richard F. Timmons, who is the President of the American Short Line and Regional Railroad Association; and, last, Mr.

Edward Hamberger, who is the President and Chief Executive Officer of the Association of American Railroads.

I want to thank all of you for coming, and we look forward to

your testimony.

Mr. Simpson, we would like to hear from you first.

TESTIMONY OF THOMAS D. SIMPSON, EXECUTIVE DIRECTORWASHINGTON, RAILWAY SUPPLY INSTITUTE; THOMAS

PONTOLILLO, DIRECTOR OF REGULATORY AFFAIRS, BROTHERHOOD OF LOCOMOTIVE ENGINEERS; RICHARD F.

TIMMONS, PRESIDENT, AMERICAN SHORT LINE AND REGIONAL RAILROAD ASSOCIATION; AND TRAINMEN; AND EDWARD HAMBERGER, PRESIDENT AND EXECUTIVE OFFICER,

ASSOCIATION OF AMERICAN RAILROADS

Mr. SIMPSON. Thank you, Mr. Chairman. Good afternoon. Mr.

Barrow, Ms. Norton. I am pleased to be here.

My name is Tom Simpson. I am Executive Director of the Railway Supply Institute. I am here on behalf of the RSI Committee

on Tank Cars, which has represented this industry for more than

50 years. The RSI Committee on Tank Cars represents companies

that manufacture virtually all the tank cars operated in North

America and also own, manage, and full service lease 180,000 tank

cars. We are approximately 70 percent of the Nation’s tank car

fleet.

In 1970, we joined with our partners at the Association of American Railroads to create the Railroad Tank Car Safety Research

and Test Project. The mission of the project is to collect and analyze data received to the performance of tank cars and derailments,

and to use those data to support research to improve tank car safety. The Federal Road Administrator did an excellent job of outlining the improvements we have made in tank cars over the years

because of the safety project. Since 1970, RSI and AAR have invested more than $20 million in the safety project, while car own-
28

ers have invested more than $700 million in safety improvements

to the tank car fleet.

These joint efforts have helped make rail the safest mode for

transporting the vital raw materials our society demands. Approximately 1.7 million carloads of hazardous materials are transported

by rail throughout the United States each year and 99.998 percent

of these shipments reach their destination without a release caused

by an accident.

The reduction in accidental releases of hazardous materials has

been driven in part by continuous improvements in tank car design

and materials, and the RSI Committee on Tank Cars fully supports

continued efforts to improve the tank car package.

I have four specific points I would like to make this afternoon.

First, an important step towards improving rail safety is for

PHMSA and FRA to take a more active leadership role in the effort

to improve safety. PHMSA and FRA are uniquely positioned to ensure an open, transparent, unbiased, and comprehensive process is

used to create any new safety standards.

Secondly, we believe rail safety improvement efforts should be

based on a comprehensive analysis of rail hazmat risks that looks

at all aspects of the rail system. Safety improvement efforts should

explore railroad operating practices, shipper commodity handling

practices, emergency response procedures, and tank car design improvements.

Thirdly, any changes to tank car design should be driven by

sound science and engineering. The recently initiated AAR Tank

Car Committee dockets intended to reduce the probability of release of chlorine or anhydrous ammonia are first steps towards improvement in the safety of shipping those materials. The work of

those task forces must be coordinated with the critical research

FRA has undertaken at the direction of Congress on derailment

forces and steels as passed in SAFETEA-LU.

The results of these studies are critically important because they

provide facts about the real-world conditions in which the cars operate, and they should be completed prior to deliberation on any future car designs. We are concerned that the design specification developed as a result of the current accelerated AAR docket approach

will not take this research into account and may be superseded or

contradicted once this additional FRA research data is evaluated.

Fourth, initiatives to improve security of shipping hazardous materials by rail should be coordinated between dot and DHS to ensure prioritized action items can be efficiently implemented. Funds

for research and implementation of technology to reduce tank car

vulnerability should be granted. As the Administrator also indicated, government and industry are currently evaluating materials

that may prevent the penetration of a tank car or, alternately, to

seal a commodity leak if the tank car is penetrated by a terrorist.

If it is decided that such materials should be applied to tank cars,

tank car designs would need to be changed to incorporate the additional weight and thickness of the material.

We are prepared to immediately work with Congress, the Federal

Government, railroads, shippers, and others to ensure that the

transportation of hazardous materials continues to be done safely.

I would be glad to answer any questions.
29

Mr. LATOURETTE. Thank you, Mr. Simpson, very much.

Mr. Pontolillo, we would like to hear from you.

Mr. PONTOLILLO. Good afternoon, Mr. Chairman, Mr. Barrow,

Ms. Norton. My name is Tom Pontolillo. I am Director of Regulatory Affairs for the Brotherhood of Locomotive Engineers and

Trainmen, which is a division of the Teamsters Rail Conference.

And on behalf of the 33,000 BLET members and 70,000 Rail Conference members, and, really, the 175,000 men and women who

serve America working for the Nation’s railroads, I thank the opportunity to address the Subcommittee.

For the BLET, this hearing is personal and carries special meaning, because the three TIH accidents that we have been discussing—Minot, Macdona, and Graniteville—claimed the lives of two

BLET members: Heath Pape in Macdona and, of course, Chris

Seeling in Graniteville. So we continue to have an abiding interest

in improving safety of all hazardous material shipments.

The reality is that our lifestyle depends upon chemicals that end

up in a very benign form, but during transportation can be very

hazardous, and it is all our duty in the industry to make sure that

we work together to prevent future tragedies.

I want to touch briefly on five subjects that are of interest to the

men and women on the ground level. One is security. Not to belabor the point—as has been mentioned by Ms. Norton and was

also mentioned earlier by Mr. Simmons—the High Alert report that

the Teamsters put out shows a troubling lack of effort on the part

of the industry to stay on top of security affairs, and, indeed, the

CDC, in January of 2005, issued a report warning that the consequences of an acute hazmat release could result in environmental

damage, severe injury, or death.

Last Wednesday, as I began preparing this testimony, I heard on

the radio the Akron, Ohio Beacon Journal was reporting that a 17

year old and a 16 year old had admitted derailing a train consisting of two locomotives and 103 cars by sticking ties on the tracks

near Barberton, which is an Akron suburb. Fortunately, that was

a coal train, it occurred in May of this year, but the consequences

could have been much more serious.

On the security front, rail labor has been proud to support H.R.

2351, which was sponsored by Mr. Oberstar, and we will continue

to support security legislation in the future.

The industry currently suffers from severe capacity problems.

Many lines are running at or near capacity and there is an everincreased demand for rail service, particularly in the coal fields.

Productivity is up over 500 percent since 1978 and, as a result,

staffing levels in the industry are lower than they have ever been

before. This creates stresses on equipment, on track, and, most importantly, on the human resources that operate America’s railroads.

Twelve to 16-hour days for many railroad workers are becoming

commonplace and, in fact, internal data prepared by one Class I

railroad concerning hours of service for train crews for the first five

months of this year shows that railroad averaged over 105 crews

a day that worked in excess of 15 hours—this is train and engine

crews—and about three crews a day over 20 hours.
30

The industry’s solution has been to cut back more at the bargaining table; they want to take all the shop crafts and make a composite mechanic out of, subcontract out work, and they want to take

their operating crafts and reduce them to one person. And I mention that here because Railway Labor Act disputes sometimes end

up on your doorstep for resolution, but there is a safety aspect to

staffing.

And there is also a training aspect at this point in time because,

in addition to the industry operating at or near maximum capacity,

this is also the period when the beginnings of the baby boomer generation of railroaders is retiring. So there is a whole bunch of new

people coming in that need to be trained. We have had serious

problems with training on the part of the industry in the past.

That has been no secret.

Sometimes it seems like it is driven more in the need to get people out on the property than it is to make sure they are well

equipped to do the work, and hazmat rail labor has taken the burden on its own shoulders. Over the last 15 years, a program that

we have at the George Meany Center in Silver Spring has trained

over 20,000 railroad workers, and next month we are going to institute the first training in radioactive material transportation, and

we are unaware of the railroad industry providing any of our members with this stuff. SAFETEA-LU has thought of us in helping to

provide funds, and we appreciate that.

Very briefly, in accident causations, we have heard about human

factors accidents. That is only one piece of the puzzle. We believe

all accidents need to be studied, and beyond the primary cause. We

believe there should be root cause analyses. There is now an analytical taxonomy to provide that. Positive train control will provide

a help but, as NTSB said, really, it is an overlay What we really

need in the short term are switch protection and switch position

detection for dark track as we start to evolve in.

And, lastly, it is important that the Subcommittee consider the

fact that in the next few years the numbers and amounts of radioactive shipments, spent nuclear fuel and high level radioactive

waste, will increase tremendously as storage facilities are opened,

and current regulations need to be looked at thoroughly. For example, railroad workers, my understanding is, currently can be exposed to greater radiation than nuclear industry workers. That

needs to be looked at along with monitoring systems.

FRA has done a study and recommended that these be dedicated

trains, and we support that conclusion 100 percent. And we are

participating in the DOE Transportation External Coordinating

Working Group, but that is going to be the next new issue in the

transportation of hazardous materials.

And having said that, I appreciate the extra time, Mr. Chairman.

I would be pleased to take any questions.

Mr. LATOURETTE. I thank you, Mr. Pontolillo.

General Timmons, welcome to you, and we look forward to hearing from you.

Mr. TIMMONS. Good afternoon, Mr. Chairman, and thank you for

the opportunity to talk on Class II and Class III railroad issues,

and particularly the status of hazardous materials movement in

the small railroad industry.
31

As this Committee is well aware, the short line industry operates

over approximately 50,000 miles or right-of-way in 49 States, with

23,000 railroaders who move freight each day. Carloads of hazardous materials, the vast majority of these products are not toxic by

inhalation, and short lines are by no means the primary mover of

these commodities across the Nation’s transportation system. But

for the communities that we do serve, these products are essential

to the health and well being of their citizens and are only available

through freight rail movement.

The short line and regional record of hazmat transportation is

excellent. The U.S. Department of Transportation Hazardous Materials Information System indicates, for 2004 and 2005, that no

short line railroad has been responsible for any fatalities, injuries,

or hospitalizations resulting from a hazardous materials release.

Since 1973, FRA has recorded only one hazardous material related

fatality on a short line, and that fatality involved an unauthorized

rider on a freight train.

Needless to say, we take this matter very seriously and we continue to strive for improvement and reduced exposure for crews,

communities, and responders. We believe our commitment to educate our personnel and maintain rigorous adherence to industry

safety and technical standards has facilitated these solid statistics.

For short lines, several areas are essential to the safe and efficient movement of hazardous materials, the first of which is that

the infrastructure must be sound. Rail, roadbed, bridges, and signals must be continually improved. The Federal tax credit you approved in 2004 has allowed short lines to increase investment,

which is improving our track structure and enhancing our network.

As I have discussed with this Committee in the past, the tax credit

is accomplishing exactly what was intended, and we hope that Congress will see fit to extend it before it expires at the end of next

year.

Second, car availability is critical. Much of the current equipment is aging quickly. Reliable and robust hazmat cars must be up

to the challenges of long and hard service and be reliable under all

circumstances..

Third, tracking hazmat shipments is essential in the event manmade or natural disasters threaten to expose the contents of these

cars to emergency responders or unwary citizens. A recently introduced computer tracking system now gives the short line industry

the ability to track and report shipments by commodity, by railroad, and location in real-time to computer terminals in the FRA,

AAR, and the Short Line Association offices. This is an area of

weakness for us in the past, and we have devoted considerable time

and effort to addressing this need. The new system, known as

Freightscope, gives us the ability to provide on-demand information

very similar to Class I operations.

Fourth, security must be a part of every day operations and procedures in a more comprehensive way than ever before. Reporting,

tracking, communications, rapid response, and preparation for a

terrorist strike or accident must be part of what we do and train

for each day. Short lines have worked steadily since 9/11 to prepare

for the unexpected. I will not repeat here, but have listed in my
32

written statement, nine activities that the Association and its

members have engaged in since 9/11.

Certainly, there is much more that can and should be done, and

I know determining the next steps are part of what is driving this

hearing today. The short line railroads stand ready to work with

the Congress and the industry to take whatever next steps are

deemed appropriate and necessary. And at the appropriate time I

would be happy to answer any questions from the Committee members.

Thank you very much, sir.

Mr. LATOURETTE. Thank you very much.

And the last witness on this panel is Mr. Ed Hamberger. Mr.

Hamberger, thank you for coming to see us, and we look forward

to hearing from you.

Mr. HAMBERGER. Mr. Chairman, thank you once again for the opportunity to appear before this Subcommittee. And on behalf of the

AAR, I appreciate the opportunity to discuss rail transportation of

hazardous materials.

At the last hearing, which seems like just yesterday, you observed that I have a tendency to say that I have five messages.

Today, Mr. Chairman, I have two, two messages. The first is that

the railroads take very seriously their responsibility to transport

safely and securely the hazardous materials entrusted into our

care. We have an excellent record in that regard. Nonetheless, accidents do happen, and part of the first message is extending to the

family, friends, and victims of the accidents that have occurred our

regret and sympathy.

The second message is that the current environment for the rail

transportation of highly hazardous materials, especially the socalled toxic-by-inhalation hazards (TIH) is untenable. Or, as Congresswoman Norton so eloquently put it just a few minutes ago, inherently impossible. The Federal Government requires railroads to

transport these shipments whether they want to or not.

As Wick Moorman, Chairman of the AAR Board of Directors and

CEO of Norfolk Southern Corporation, points out in a statement

filed with this Committee, railroads do not make these highly hazardous materials, railroads do not use these highly hazardous materials, and railroads do not make enough money transporting

these materials to justify the risk they take. Yet, unlike other companies, even other transportation companies, railroads cannot just

say no to these materials.

And I take respectful difference with your opening statement,

Mr. Chairman, when you said we all benefit when railroads transport these materials. I respectfully suggest to you that railroads do

not benefit from the current legal framework governing these shipments. Every time a railroad moves one of these shipments, it faces

potentially ruinous liability.

As Mr. Beardsley, of Aon, will testify—at least my interpretation

of his testimony—the next tragic accident could well spell the end

of insurance availability, not just cost, but availability, for the railroads to move these materials. And, of course, this would have a

collateral impact on our ability to move every carload, not just

chemicals.
33

Railroads face these huge risks for a tiny fraction of their business. Shipments of TIH, for example, constitute only 0.3 percent of

all rail carloads. Still, history demonstrates that railroads can suffer enormously costly judgments even for accidents where no one

gets hurt and railroads do nothing wrong. If this risk is not limited,

railroads will be forced to seek an elimination of their government

mandate to carry highly hazardous materials or to challenge its applicability with regard to TIH and other highly hazardous materials.

If the Federal Government is going to continue to require railroads to transport these materials, it must address the company

risk it forces railroads to assume. Congress can do this in at least

two ways. One is to create a statutory liability cap for the railroads

similar to the one that applies to Amtrak, which I believe is $200

million per incident.

Or, two, Congress could also enact a Price-Anderson-like solution

which limits the liability of a company from an incident involving

the release of nuclear material and provide for a fund to cover any

damages in excess of that amount. Thus, precedent does exist

where public policy needs demand spreading the risk. And I would

emphasize that in both of these proposals railroads would have

‘‘skin in the game.’’

In the meantime, railroads continue to support prompt, bold action by all stakeholders to further reduce the risks associated with

the manufacture, transport, and use of highly hazardous materials.

I suggest a number of actions in my statement. Let me just emphasize several here.

One, and as is exemplified by the presence of Chief Bell on the

next panel, one of our highest priorities is to provide emergency response information and training to the emergency responders in

the community in which we operate. It is my understanding that

Chief Bell and his colleagues responded valorously and admirably

during the accident in Graniteville last year. We train 20,000 emergency responders each year, both on our own and in cooperation

with the American Chemistry Council.

Two, we have a very rigorous training program, notwithstanding

what others may believe. And I would like to submit for the record,

Mr. Chairman, the hazardous materials training delivered at the

Norfolk Southern Training Center in Macdona, Georgia, to every

employee of Norfolk Southern. It is similar to an example of what

each of our Class I railroads does around the Country.

Number three, we have talked and you have seen the new technologies we are deploying trackside to try to have better predictive

maintenance to eliminate an accident before it happens.

Number four, we are moving aggressively as an industry into

train control technology, which would have, again, predictive enforcement: stopping a train before it exceeds its authority.

And, five, another action that would result in tremendous longterm safety gains, is rail industry effort to significantly improve

tank car safety. Our Tank Car Committee is evaluating a new

standard for both chlorine and anhydrous ammonia tank cars.

Based on research from the University of Illinois, we believe that

the probability of a release, if there is an accident, could substantially be reduced. The Committee is also examining whether the
34

phase-out of tank cars constructed of non-normalized steel should

be accelerated.

And that was number five, but I do have one more, Mr. Chairman, number six, and that is to accelerate the development and

use of inherently safer technologies as substitutes for highly hazardous materials. As noted in a just released report by the National Research Council, ‘‘The most desirable solution to preventing

chemical releases is to reduce or eliminate the hazard where possible.’’

Likewise, in January, the Government Accountability Office recommended that the Department of Homeland Security ‘‘work with

EPA to study the advantages and disadvantages of substituting

safer chemicals and processes at some chemical facilities.’’ Railroads agree and strongly support efforts aimed at finding and utilizing product substitutes or inherently safer technologies for hazardous materials, especially TIH.

In closing, Mr. Chairman, we cannot continue to transport highly

hazardous material under the conditions that currently exist. The

inordinately high risks now shouldered by the railroads must be

dramatically reduced both through improved safety and the provision of reasonable liability protection. All participants in the

hazmat logistical chain, working together and working with appropriate government agencies, must accept responsibility to take a

comprehensive, holistic approach to hazmat safety.

If railroad risks are not reduced, Congress should relieve railroads of their mandate to carry TIH and other highly hazardous

substances. We should be permitted to decide for ourselves whether

to accept, and at what price to accept, such materials for transportation.

Thank you for the opportunity to testify on this critical topic, and

I apologize for running long.

Mr. LATOURETTE. I thank you, Mr. Hamberger. And without objection, your materials will be made part of the record. And just so

you know that I am paying attention, you had six points, but you

tried to confuse us by saying you only had two, and you made the

six subparts of the second point.

Mr. HAMBERGER. I should have known better, sir.

Mr. LATOURETTE. And let me start with you. Obviously, from

your testimony and observation, that if the transportation of these

materials was voluntary, it really wouldn’t make a lot of business

sense for the railroads to engage in that. But if it is the position

of the railroads that the shipping rates for hauling chlorine, for example, don’t really reflect the liability exposure, why don’t the railroads just raise the rates for shipping?

Mr. HAMBERGER. Well, that would be one approach, but when

there are uncapped liabilities, you can’t charge enough. That is to

say, the insurance—and I think what we will hear from the representative from Aon is that there is a limit on liability insurance

that can be achieved—not only here, but through the reinsurance

markets in London—and the overall damages that could be assessed could far exceed that cap, and we are talking about 100,000

shipments a year. You just can’t charge that much.

Mr. LATOURETTE. Let me ask it a different way. I think I talked

to the Administrator about coercion. And I am not a chemistry
35

guy—that is why I went into politics—but it is my understanding

that if you, rather than using chlorine gas at a water treatment

plant, for instance, you could use something called sodium

hypochloride. If the railroads took the position that they were going

to charge as much—a lot more for hauling chlorine gas, don’t you

think that there would be some adjustments in behavior, and perhaps we would see safer materials being shipped to water plants,

as opposed to chlorine gas?

Mr. HAMBERGER. As I know you will understand and appreciate,

we do not talk about rates at the AAR. So I can’t really address

that directly, other than to say no matter what the cost is, you

know, we are concerned that you could not charge enough to cover

an unlimited liability.

Mr. LATOURETTE. Let me ask you this, because you used the

‘‘skin in the game’’ reference, and Mr. Durbin is going to be on the

next panel and it has already been brought up in some of the questions. The argument is being made that if railroads are absolved

or their liability or their exposure is reduced, that would be a disincentive to safety, that they would have no incentive to carry

these materials safely. Do you have a response to that?

Mr. HAMBERGER. Well, I think on several levels. Number one, it

is good business to travel—to do things safely, and so that is why

we are focused on safety, we are focused on the safety of our employees, the communities in which we operate. So I don’t believe

there would be any diminution in emphasis on safety. Number two,

the proposal in the testimony does not absolve all liability, so there

would be ‘‘skin in the game.’’

I guess I will take this opportunity to express my surprise at testimony from the American Chemistry Council, where they actually

oppose any limitation on liability because they believe it would act

as a disincentive for railroads to act safely, while at the same time

the American Chemistry Council is a founding member of the

American Tort Reform Association, whose Web site talks about how

tort liability is not a driver for corporate responsibility.

We also have members of that ATRA, and we also believe that

tort liability is not a driver of corporate responsibility for safety

and security, and, actually, we believe it about them too. It would

be nice if they believed it about us.

Mr. LATOURETTE. Thank you.

Mr. Pontolillo, we were talking about the Graniteville accident a

little earlier and the observation from the National Transportation

Safety Board relative to breathing equipment. Does your organization have an opinion or view as to whether or not additional safety

equipment should be placed in the locomotive?

Mr. PONTOLILLO. We can see a value to it, but, I think as Administrator Boardman said this morning, it brings with it a bunch of

subissues as to type, and you need to make sure that there is testing and inspection and stuff. We do, but we believe that that is just

one part of an overall picture, because while that provides protection for the crew, it provides precious little for the community at

large. So we do favor that, but within the context of a much broader approach designed to reduce accidents and, when there are accidents, to reduce breaches in the tanks.

Mr. LATOURETTE. Thank you.
36

Mr. Simpson, how much does a tank car cost, roughly, and how

long does it last when it is in service?

Mr. SIMPSON. Well, like Mr. Hamberger, we don’t talk prices, but

I can provide a—for the record, I can survey my membership and

give you a range of prices. The life of a tank car is approximately

40 years.

Mr. LATOURETTE. Forty years? And you talked a little bit, and

I know some of this you can’t talk about as well, but you talked

about the self-sealing technology. I always think of it sort of like

Bars-leak for your radiator, I think. Without going into the specifics, well, can you be as specific as possible and tell us a little bit

about that technology?

Mr. SIMPSON. We are working with DHS and the railroads and

shippers to identify and look at materials that could be applied to

the side of tank cars that would either absorb a rifle shot or repel

a rifle shot. They are currently polyurethane type products. There

was a story in USA Today last week about truck liners, truck bed

liners that are being used, and this kind of material has been used

in Iraq on Humvees, and we are looking to see if it is applicable

to use on tank cars.

Mr. LATOURETTE. OK. I know that when the District of Columbia

was looking at having their ban on hazardous materials on the

CSX lines through the District, a well-meaning councilwoman came

in to meet with me and brought a picture of a tank car on a bridge

that we could probably see if we walked out the front door. Is this

technology designed to deal with that type of terrorist exposure?

That is what you are hoping to get at?

Mr. SIMPSON. We are hoping for either a deflection or an absorption.

Mr. LATOURETTE. OK. Thank you very much.

Mr. Barrow.

Mr. BARROW. Thank you, Mr. Chairman.

Mr. Hamberger, I certainly agree and understand the predicament that the industry is in. The level of risk is unbelievably high,

and we are just one incident away from railroads having basically

to bet the company every time they roll down the track, and I understand we have got to address that in some way or another. But

it does seem to me that if the risk is that high and that great of

continuing to do things the way we are doing them now, it just

makes it that much more important that we try to minimize the

risk in every way we can.

Mr. HAMBERGER. Yes, sir.

Mr. BARROW. So I would like for you to weigh in with me a little

bit on the subject of car placement. And I think it is helpful to review the facts of the Graniteville incident just to put this in context.

As I understand it, there were forty-something cars in that train

consist. The three or so cars that had hazardous material were in

the front fourth, cars like six through nine, something like that.

Mr. HAMBERGER. Nine through eleven, I think, but yes.

Mr. BARROW. The last one of those was the only one to have suffered a puncture. And as was explained earlier on, it was among

the toughest that are currently in use.
37

Now, if Norfolk Southern, in that incident, had been following

the practice that had been recommended by the FRA way back in

1992, the policy that is still urged and recommended by the NTSB

today, all other things being equal—exactly the same human error,

exactly the same outcome, exactly the same collision, exactly the

same forces—but if those cars had been in the back third of the

train, anywhere in the back half of the train, there would have

been no puncture at all, because the last train to actually come off

the rails at all was like 12 or 13; and they were off the rails, but

they were standing up and weren’t hurt at all.

So all of the damage of this track speed collision with a standing

locomotive on a side track, all of this was absorbed in the crumple

zone of the front end of the train. And if we just had those cars

toward the rear, just in the back half of the train, nobody would

have died; and we had nine people who died just about as ghastly

a death as you possibly can. And, of course, if it had happened not

just over the line in Mr. Gresham Barrett’s district, in his rural

area, but downtown Augusta, in my district, it would have been untold numbers of people dying the most ghastly death that you can

imagine.

So my question is the railroads are following a policy, whether

it is dictated by Federal regulation or not. It is either a policy of

random placement—put them where you get them, where you

can—or it is a policy of deliberate placement. One concern I have

got is that the Federal Government is understood to weigh in and

basically say random is best. That will immunize you all from any

liability from following this Federal mandate of random, as opposed

to deliberate.

But if we do what most folks, put the baby in the back seat of

the car because it is safer than putting the baby in the front seat

of the car, if we do what most folks agree is the right thing to do,

and if the claims of—if the practice of random isn’t preempted from

State tort liability, railroads are running an incredible risk of having someone say in a jury case someday, if it has been litigated to

a fair thee well that this claim isn’t preempted, that they are going

to have to pay a huge liability, when it could have been avoided

if they had adopted the smarter policy.

Wouldn’t it help the railroads if the Government were to be the

bad guy in this picture and come in and mandate the best standard, the best management practice, to mandate a policy of deliberate placement, one that you can work with, one that your members can actually handle and deal with, but impose the cost uniformly so no railroad is going to be working at a competitive disadvantage compared to others by incurring the extra expense, the

marginal cost of stepping out and going front with a policy of deliberate placement? Wouldn’t it be best for everybody if the Government does what sometimes only the Government can do, and that

is be the heavy in the picture and make everybody do the right

thing at the same time?

Mr. HAMBERGER. Let me try to respond as best I can. Number

one, I do not believe that the word ‘‘random’’ was quite right. That

is to say, there are rules and regulations, and one of the modules

from this Norfolk Southern training is switching and train placement charts. That is to say, certain materials are not supposed to
38

be placed next to each other depending on their volatility, and certain kinds of carloads are not supposed to be next to tank cars. So

it is not an entirely random———

Mr. BARROW. So already a standard of care is being set?

Mr. HAMBERGER. There are already standards of care being set.

I did discuss this, and I would ask your permission to give you a

more detailed submission for the record, but as I understand it,

there is also some concern with the railroads on train dynamics,

that is to say, where some of these cars are placed based on their

weight in relationship to other cars in the train.

And then, third, I don’t know how often this happens, but it does

strike me, sitting here, thinking about it, that if the car is near the

end of the train and the impact comes from that end, you have the

reverse situation.

Mr. BARROW. There is no question that a policy of deliberate

placement creates a risk profile to replace an existing one.

Mr. HAMBERGER. Right.

Mr. BARROW. The question is one better than the other. And all

I would offer to you is that the industry already recognizes some

element of responsibility and sets a standard of care when you try

and keep bad things apart from each other.

Mr. HAMBERGER. Yes, sir.

Mr. BARROW. But if you are not also applying the same logic toward where you are putting them on the train someday, either that

policy is preempted by Federal law because we are putting our

blessing on it, in which case folks are going to be hurt as a result

of preventable injuries if the policy of deliberate placement actually

makes more sense in more cases. And to apply that logic that there

are some risks that you actually would create gets back to the seatbelt scenario; some folks are hurt by seatbelts, but far more lives

are saved by requiring everybody to do the thing that is best for

all concerned, it is that is the price you have got to pay in order

to save more lives.

Mr. HAMBERGER. I have probably said more than I know on this

already, so if I can respond in more detail for you.

Mr. BARROW. Well, understand this. I am trying to help you all.

Mr. HAMBERGER. I understand that.

Mr. BARROW. Where you all will minimize the risk, because, like

I said, if these claims aren’t preempted, you all are already staring

down the barrel of that gun. You have kind of aimed it at yourself

by recognizing the placement is an area of risk generation that you

create for the bystanders.

Mr. HAMBERGER. Yes, sir.

Mr. BARROW. Thank you.

Mr. LATOURETTE. Thank you, Mr. Barrow.

Ms. Johnson?

Ms. JOHNSON. Thank you very much, Mr. Chairman. I ask unanimous consent to submit my remarks and also to submit my questions. I had a couple of questions for Mr. Chipkevich, and I am sure

I didn’t get back right away. So I will submit those, if you don’t

mind.

Mr. LATOURETTE. Perfect. Ms. Brown also had some questions

that she wanted to ask of the panel. So just get them to us and

we will ship them along. Thank you.
39

Are there any questions you want to ask this panel, Ms. Johnson?

Ms. JOHNSON. No, thank you.

Mr. LATOURETTE. OK.

Ms. Norton.

Ms. NORTON. Thank you, Mr. Chairman.

Mr. Hamberger, I knew I would get to you soon.

Before I do, let me ask a question, though, based on your testimony, of Mr. Pontolillo. The railroads have this legendary history:

it is not I live near the railroad, it is working on the railroad. And

if you are a connoisseur of American literature, I suppose as much

has been written about working on the railroad as has been written

about being a cowboy.

Well, today we recognize that working on a railroad is to take

your life in your hands, and we are all sitting here trying to problem-solve, recognizing this to be a vital industry. I don’t even

think—there was testimony earlier that I don’t know if Mr. Hamberger was going to say, well, we are going to seek not to be a common carrier anymore, well, you know, he knows that is not going

to happen. So we really have to just grapple with this really difficult problem.

I want to look at South Dakota and South Carolina for a moment. Our good colleague testified about somebody on the front

porch. Of those who were killed or injured, how many of them or

what percentage of them were workers, as opposed to passengers

or others in the community? Do you have any figures on that?

Mr. PONTOLILLO. I don’t have it off the top of my head, Congresswoman. In Minot, I am not sure any of the casualties, perhaps one

was a railroad worker. In Macdona I do know that I believe there

were three fatalities, one was a BLET member and I believe a couple of the other crew members were injured, although not fatally.

And I think in South Carolina, well, obviously Chris Seeling, one

out of the nine fatalities was a railroad worker, the other eight

were residents of the community. And Mr. Seeling’s train crew was

injured in that as well.

Ms. NORTON. Are these fumes, the toxic fume issue?

Mr. PONTOLILLO. Yes. And there may have been some traumatic

injuries, I am not certain.

Ms. NORTON. The fume issue is a huge, huge issue. Of course,

workers have some protection. I didn’t know, frankly, until preparing for this hearing that workers could work 12 hours a day, but

now you say they work more, 16, 20 hours a day. You know, as an

enforcement agency, I just wanted to ask you a word about, you

know, if a worker is in fact working that far—first of all, you are

already working more than most members of Congress. So if you

are working even beyond that, is there a system for the FAA or

FAR, or somebody, to simply deal with that issue, either through

enforcement or some other remedy?

Mr. PONTOLILLO. What has caused this particular problem for

the train and engine crews—and you are right, Congresswoman,

there is a 12-hour limitation for their working. In 1996 the Supreme Court decided that the time when you stop your train because your 12 hours is up, if you don’t reach your final terminal,

whatever period of time it takes to transport you—you are not
40

working at that point, but whatever time it takes to transport you

from there to where you finally get released is not counted as onduty time.

Ms. NORTON. So are you working, though?

Mr. PONTOLILLO. You have a responsibility and an obligation—

if, for example, the train begins to move and you are sitting on it,

waiting for transportation, you have a responsibility to take action

to stop the train. You are not—you won’t be required to perform

any duties; you will sit there and wait for transportation.

In an ideal situation, you may only have to wait 15 minutes or

a half hour, but it is becoming increasingly common that crews

have to wait three, four, five, and six hours for that transportation,

and then have to be—once they finally get to their resting place,

be prepared to work again in as little as eight or ten hours.

Ms. NORTON. So this is a question of just being transported.

Then has this problem always been with us?

Mr. PONTOLILLO. Since 1996, since the Supreme Court decision.

But in the last several years it has gotten significantly worse for

two reasons. Number one, as I mentioned during my testimony, the

system itself is running at capacity, and running at capacity, it sort

of—there have been shortages of crews in many places. And there

are time when a train will sit sometimes with a crew on it, but

sometimes on unattended, eight, ten, twelve hours waiting for another crew to have rest under the Hours of Service Act to be able

to come out and move it. It is something that has gotten worse as

time has gone on.

Ms. NORTON. Something really has to be figured out here. And

I don’t know what the answer is, but I am worried about the next

ride that crew gets on, that is kind of sitting around, getting

tired———

Mr. PONTOLILLO. So are we.

Ms. NORTON.—without the usual kind of R&R. And an already

hazardous situation doesn’t help things. I do see the problem. I do

see that like the problem the industry is in in the first place.

All right, Mr. Hamberger, it is your time. Look, I sit on the Aviation Subcommittee, and I think that was easy compared to what

this industry has to deal with. I mean, you know, we just spend

a lot of money, deal with it on the ground, and we think we have

fortified the industry. Of course, there was an attack first, and I

would like to prevent that. I take your point, or the point of someone, about collateral, the collateral effect Let us not call it damage.

I take it that the Amtrak passenger trains are often on the same

tracks, use the same tracks as, for example, CSX and other———

Mr. HAMBERGER. That is correct, yes.

Ms. NORTON. I appreciated the problem-solving nature of your

testimony. I am going to ask you a couple questions about that. At

page 19 you began a discussion about what government should not

do.

Mr. HAMBERGER. Yes, ma’am.

Ms. NORTON. And you have also discussed what government

should do. Now, I have already said I understand the problem of

rerouting. One of the things that has been suggested is this notion

of pre-notification. I take your point that a train moves and the notion of saying to everybody, we are coming, we are coming, and we
41

have got hazmat on board probably is, as you say in your testimony, difficult to implement.

Sitting on the Homeland Security Committee, I now see the way

in which whole regions are working together, for example, this region, you know, Maryland, Virginia, through which these trains go,

sit at the same table all the time, even receive money together,

which is then distributed among them.

Would it not be possible, particularly if you didn’t have to design

it, for notification within a region to come, and then it is on the

region to notify everybody else? We now have given them all kinds

of homeland security equipment that nobody had before 9/11. But

if nobody even knows, nobody, even the larger New York area or

Chicago area or national capital region even knows that such

trains are coming, then, of course, the whole question of notification becomes troubling to people in that region. That kind of point

notification with responsibility elsewhere, wouldn’t that be possible

to use and help perhaps mitigate at least the concern in metropolitan regions which now can do nothing about the fact that we have

to transport these materials with a common carrier? Wouldn’t that

mitigate the concern?

Mr. HAMBERGER. Well, I think what we do try to do, and through

our rules internally, we do work with each community in which we

operate and let the emergency responders know what material is

going to be coming through that community.

Ms. NORTON. You said pre-notification———

Mr. HAMBERGER. You know, not by train, but we will sit down

with the chief of police or the chief of the fire department, Chief

Bell, and say here is the kind of material, here are the top 25 toxic

materials, hazardous materials that are coming through your community; here is how we believe the emergency response should be

handled for each one of those. We will help train the emergency responders.

And we have found—and as I have in my testimony from some

of the emergency responders—that getting notified every time a

train comes through sort of gets lost and it is a blizzard of paperwork. So the idea is preparation, training, and then immediate notification through the Freightscope project that———

Ms. NORTON. So you think they come through so often that even

regional notification or notification that today we are transmitting

certain kinds of materials would not be beneficial?

Mr. HAMBERGER. That is our opinion, yes.

Ms. NORTON. Let me ask you about your notions about liability,

because I found them interesting, because you don’t say that the

railroads should not be liable or they should be capped and then

you are on your own. You indicate that there should be a cap for

common carriers who, after all, have no choice but to carry these

substances, but that over and above the cap, in one idea, the government would pay in excess and in another the industry would

contribute to a fund.

Now, since you are virtually a monopoly of this, you are the only

folks who can carry this, in effect. What I don’t understand is why

some notion of a cap with government accepting the responsibility,

there are going to be people, as you indicate, that are going to be

so seriously injured that you can’t possibly charge enough so that
42

you would be able to take care of all the liability. Would you or

anybody else ever proposed either of these ideas to this Committee

or anybody else?

Mr. HAMBERGER. No, ma’am, we have not. This testimony was

very seriously considered by the Association, was cleared with our

board of directors, and I think individual companies have broached

these topics, but as an association, this is the first time we are proposing either a cap in liability or a release from the governmental

mandate that we haul this material.

Ms. NORTON. Let me ask you about insurance. In your testimony

I was caught off guard, I must say, by a phrase: and hopefully

more insurance companies would once again be willing to offer railroads coverage. What does that mean, that you can’t get coverage?

Mr. HAMBERGER. Number one, I am impressed and honored that

you actually read the testimony, thank you very much, because it

was rather long. And I would really refer and defer to Mr. Beardsley from Aon, but it is my understanding that the number of insurance companies who are willing to come forward and offer coverage

is dwindling to just less than a handful, and that his testimony indicates that if there is another accident, that that may dwindle

even further.

Ms. NORTON. Was there a fall-off of insurers after South Dakota

and South Carolina?

Mr. HAMBERGER. Yes, ma’am. And, in fact, there was some concern among some of our members that the availability would not

be there, notwithstanding the cost. The cost has gone up depending

on the company. I have heard 30, 40 50 percent. The retention

level has been increased and there is a cap even, as I say, in the

reinsurance market.

And to Mr. Barrow’s point, if the Graniteville accident had occurred in another location, or had it occurred at 10:00 in the morning and not 2:39 in the morning, when the textile factory that was

there was not fully staffed or the elementary school a few blocks

away was fortunately not in session, had that not been the case,

I believe that the cap and liability would certainly have been approached, if not breached.

Ms. NORTON. Well, you can’t move without some insurance.

Mr. Chairman, that may be the most serious problem. We can’t

afford a Katrina-like situation where there are people who will not

be able to move back because no insurer, given the fact that they

now think that Louisiana is prone to these issues and that it is

going to be hard to protect, so there are places where no insurer

would go. Well, you know, the difference there, of course, is, as

heartbreaking as it is, not everybody has to live in New Orleans

or in that Louisiana area; whereas, these substances have to go,

which leads me to my final question.

You indicated something that interested me in my role on the

Homeland Security Committee, and that is about research for substitutes for some of these materials. But, Mr. Hamberger, we are

talking about some of the most commonly used materials in the

United States. I mean, one of the reasons people think that there

is an increase in incidents of cancer is just plain chemicals. Now,

you know, many of these chemicals really start in their primary

state as some of these chemicals.
43

And by the way, as much as we are doing something about cancer, nobody says that, you know, the chemical that is in your

clothes or in this desk we are going to do away with. We simply

are finding cures for cancer and trying to do as much as we can

about our environment.

But when you look at what would happen if, for example, a car

blew up or there was an accident, or it was attacked, we are talking about chemicals that once you get them together is where the

issue is. We are talking about things like chlorine and ammonia.

We are not just talking about the rarified ones that we are most

afraid of, we are talking about hydrochloric and sulfuric acid. We

are talking about the kind of chemicals that we all learned about

when we took chemistry in junior high school and where, in a real

sense, it is unimaginable that somehow or the other, as visionary

as I like to be, that somehow we would live in a world in which

some mixture of these chemicals were no longer necessary or no

longer had to be transported.

What do you have in mind? Could you elaborate, finally, on what

you have in mind that would eliminate at least these most common

ones, or are you only talking about the newer ones that we are

most afraid of?

Mr. HAMBERGER. No. And let me just emphasize that our effort

to try to encourage product substitution is not meant in any way

was an attack on the chemical industry. They are a very important

part of our customer base, and we appreciate their———

Ms. NORTON. No, you see, they would probably make the substitutes as well, Mr. Hamberger.

Mr. HAMBERGER. Good point.

And so the example that I am just familiar with here is the Blue

Plains Wastewater Treatment Plant, which used to get, I believe,

a tank car full of liquid chlorine once a week and now gets several

truckloads of what I call a chlorine bleach—I am not sure what the

official chemical is, but it is a chlorine bleach—that provides the

purification needed at Blue Plains.

But there is no fantasy here, this will not be a perfect substitution, but we are talking about 100,000 carloads. If, with research

and incentives, some of those carloads can be replaced with chlorine bleach to purify a water supply, you know, our view is that

that makes sense, and it will just reduce the scope of the exposure

for the communities and the employees. So if you can get 20,000

replaced by chlorine bleach, you now have 80,000 carloads moving.

The other big piece is anhydrous ammonia, which is used for fertilizer. And I know that that is critically important. It is the most,

I am told, effective fertilizer out there. There are substitutes, but

they are not quite as effective. And as we are trying to grow more

corn to make more ethanol—which we are proud to haul as well—

you know, the need and demand for fertilizer is there.

But I guess our thought is—and not our thought so much as the

National Research Council and General Accountability Office say—

let us spend some time and resources taking a look and doing the

research, because that is the long-term solution. That is the way

to figure out how to minimize the liability and the exposure for the

communities.

Ms. NORTON. Thank you, Mr. Chairman.
44

Mr. LATOURETTE. Thank you very much.

And to this panel, I want to thank you very much for your testimony and thank you for answering our questions. You go with our

thanks.

Our next panel consists of Mr. Martin Durbin, Managing Director of Federal Affairs, American Chemistry Council; Mr. Steven

Bell, Battalion Chief of the Augusta Fire Department in

Graniteville; Mr. Lawrence M. Mann, representing the American

Trial Lawyers Association; Mr. James R. Beardsley, who is the

Managing Director of the National Rail Transportation Practice

Aon Risk Services, Inc. Mr. Beardsley is accompanied by Ms. Deborah Bates, who is Vice President and Complex Casualty Broker,

also of the same company.

Thank you all very much for coming. We look forward to hearing

from you.

Mr. Durbin, you are first.

TESTIMONY OF MARTIN DURBIN, MANAGING DIRECTOR, FEDERAL AFFAIRS, AMERICAN CHEMISTRY COUNCIL; STEVEN

BELL, BATTALION CHIEF, AUGUSTA FIRE DEPARTMENT;

LAWRENCE M. MANN, AMERICAN TRIAL LAWYERS ASSOCIATION; JAMES R. BEARDSLEY, MANAGING DIRECTOR, NATIONAL RAIL TRANSPORTATION PRACTICE AON RISK SERVICES, INC., ACCOMPANIED BY: DEBORAH BATES, VICE PRESIDENT AND COMPLEX CASUALTY BROKER, NATIONAL RAIL

TRANSPORTATION PRACTICE AON RISK SERVICES, INC.

Mr. DURBIN. Thank you, Mr. Chairman, Congressman Barrow.

Again, I am here on behalf of the American Chemistry Council, a

trade association representing America’s leading chemical companies. Today, I am here to deliver one message: Safety is the starting point and the finish line. That is where we begin and where

we want to wind up in our manufacturing operations, our transportation system, and throughout our entire value chain.

Materials transportation safety, that is the avoidance of accidents and accidental releases of hazardous materials, is the primary focus for ACC, our member companies, our transportation

partners, and the emergency responders with whom we work every

day.

Through ACC’s Responsible Care initiative, our member companies and our partners are committed to continuous safety improvement in every aspect of the value chain.

We have a strong and successful partnership with our rail carriers, the government, and emergency response community. For example, in the 1980’s, ACC members, together with the railroads

and other stakeholders, developed TRANSCAER, a voluntary national outreach effort that helps communities prepare for and respond to possible hazardous material transportation incidents.

ACC and its partners have invested billions of dollars in training, systems, technology and tank car safety and we will continue

to do in the future. Together, we have learned that hazardous material safety is the result of many interrelated factors, including

overall safety of rail operations, track conditions and rail infrastructure, placement of tank cars in their coupling to other cars,

training supervision and staffing of train crews, inspections of
45

equipment, use of appropriate cars for specific hazardous materials,

and of course, the design and construction of the tank cars.

In short, we and our partners know hazardous materials safety

is a holistic process. Today, we are concerned that the partnership

is being compromised by some of our partners, and believe their

proposals are driving us down the wrong track regarding hazardous materials transportation safety.

Among our concerns is the rush to require new car designs without waiting for the technical study of car performance now underway at DOT’s Volpe Center. We are also troubled by efforts to alter

the basic liability rules that govern hazardous materials transportation.

The hazardous materials transportation safety issue is before us

for many reasons, but one crucial reason is that the product supplied by the business of chemistry and including these hazardous

materials are essential in virtually every sector of our lives. We

have a $550 billion industry that employs more than one million

people in all 50 States. It accounts for 10 percent of all U.S. merchandise exports. In fact, more than 96 percent of all manufactured

goods are directly touched by chemistry.

Congress wisely established a national science-based hazardous

material transportation system administered by DOT. That system

ensured that chemicals and other hazardous materials are delivered safely and reliably. The system’s goal is not to prevent their

movement.

We are concerned, however, by testimony from rail labor unions

regarding training and staffing deficiencies. Proposals to permit

one-person train crews should not be considered until proven technology solutions are in place to allow for safe operations with a single crew member.

Why is this so crucial? The FRA reported last year the train accident rate has not shown substantive improvement in recent years,

and that the great majority of train accidents are caused by track

and human factors. Human factor accidents are growing in number. Now, we are aware and are encouraged by reports of recent

improvements in rail safety performance, but believe that more can

and should be done.

Let me briefly address the issue of liability that has been raised

today. Again, we believe that the cost of liability is the result of

safety performance. If safety improves and accident rates fall, liability will diminish. The legal system appropriately places liability

on the party or parties that are responsible for an incident. The removal or reduction of liability could have unforeseen or undesirable

consequences, including a further erosion of safety performance.

Regarding the common carrier obligation, I believe Congress recognized it as the framework on which the entire national rail

transportation system was founded, and that it remains crucial

today.

Finally, I want to address emergency response. For 35 years,

ACC’s CHEMTREC program has shared expertise with emergency

responders. When an incident takes place, responders contact

CHEMTREC’s state of the art, 24/7 emergency center to determine

the best way to handle a wide range of hazardous substances. I

want to personally invite the members of this subcommittee and
46

their staff to tour our CHEMTREC emergency center in Rosslyn,

to see how we work with local responders to help protect your communities.

ACC would also like to work with the subcommittee to help

emergency responders nationwide receive the CHEMTREC and

TRANSCAER materials and training opportunities that are available.

The Nation needs a safe and reliable system of hazardous material transportation governed by uniform national rules. That is the

system we have today and the challenge, for both the private and

public sectors, is to ensure that this system continuously improves.

We look forward to working closely with the subcommittee, with

the Congress, Department of Transportation, and all of our transportation partners to make that happen.

Thank you, and I will be glad to answer questions.

Mr. LATOURETTE. Mr. Durbin, I thank you very much. I will take

you up on your offer, and I think I will have the staff get in touch

with you. I know I would like to come to Rosslyn and I am sure

that other members of the Subcommittee would as well. I look forward to that.

To introduce our next witness, Chief Bell, I yield to Mr. Barrow

for just a moment.

Mr. BARROW. Thank you, Mr. Chairman.

Our next witness is someone we really ought to listen very closely to because he is the only person here today who speaks for the

first responder community. In fact, he was in charge of the first responder community that responded to the Graniteville incident, the

worst of the ones we have heard about today.

So Mr. Chairman, it is my pleasure to introduce Mr. Steven Bell.

He is the Battalion Chief, the fellow at the Augusta Richmond

County Fire Department, the fellow who is in charge of the hazmat

team that responded to the Graniteville incident.

Chief Bell, thank you for being with us today.

Mr. BELL. Good afternoon. My name is Steven Bell. I am a Battalion Chief with the Augusta Fire Department.

I would like to start off and thank Chairman Steve LaTourette

and Ranking Member Corrine Brown for holding this very important meeting. I also want to thank you, Congressman John Barrow,

for inviting me to testify here.

Let me give you a little history. For the past 31 years, I have

been a firefighter/first responder. My tenure began in the 1970’s as

a firefighter, but it wasn’t until about the mid–1980’s that we

began to realize that there was a need for a specialized team of

firefighters that would be needed to handle any type of transportation of industrial accident there in the Augusta area.

Prior to the 1980’s, the only thing that we worried about in the

line of hazardous materials was gasoline, natural gas and propane.

That was it. The tools we had to deal with that were water, foam,

hand-held fire extinguishers, and a handful of these rubber gasline

plugs for natural gas.

In 1985, a group of firefighters decided it was time to begin the

uphill battle to form our first hazmat team. Any equipment that we

got was obtained by way of donations from the local industry. But

today, our hazmat teams consists of 23 members who are trained
47

to technician level. We also have two custom-built hazmat units,

level A, B, and C suits. We have patch kits and other specialized

equipment.

On January 6, 2005, our training and equipment were put to the

test when a freight train carrying chemicals hit a parked train

near the Avondale Mills in Graniteville, South Carolina. The impact caused poisonous chlorine gas to leak from the ninth car of the

train that was moving. More than 5,000 people were evacuated

from the site and 9 were killed.

I was on duty the morning that the Graniteville accident occurred. The GVW, which is the abbreviation for GranitevilleVaucluse-Warrenville Fire Department, initially responded to this

accident. After their initial response, we were requested to send

our hazmat team to assist in the incident. Initially, our 9–1–1 dispatcher contacted me in my office and gave me the information

that she had. However, the information was still not clear. Our

first step after that is we got the team together there in my office

and we tried to assemble some information and obtain more information.

What we decided to do at that time was to have a GVW member

to meet us at an appointed place miles away from the incident site.

That enabled us to get first-hand information so that we could assess it even better. After this meeting with him, I knew that this

was not going to be the typical response. Our initial response from

our fire department consisted of both hazmat units, six on-duty

team members, we had six members called back for standby, a Battalion Chief, which was myself, the Special Operations Chief, and

our Emergency Management Director who now serves as the Chief

of the Augusta Fire Department.

Because I knew that the GVW had limited resources, I knew

there was much more that was going to be needed than what we

could supply. Our department supplied personnel at the scene and

equipment for two weeks. Not only did we assist in the planning

and making an action plan, we also had a direct involvement in

seeing that these action plans were implemented.

I certainly hope an incident like this does not occur in any one

of the cities that you represent. While I don’t want anyone to have

to deal with hazardous materials accidents, I do think the Federal

Government has an important role to play in ensuring our Nation’s

emergency responders are properly trained and properly equipped

to respond to these types of accidents.

Specifically, more funding should be provided for training. Firefighters need to have the appropriate level of training and we

should have new tools that should be developed to better identify

the hazardous cargoes. While the safety of emergency responders

cannot be fully guaranteed, the number of those injured or killed

as a result of exposures to hazardous materials can be impacted

through hazardous materials training.

Training is not only necessary for the new recruits, it is essential

for the fellow who has been there for a while. All first responders

need to have reoccurring hazardous materials training. Additional

funding is needed to ensure that all firefighters who respond to an

incident involving hazardous materials be prepared to respond appropriately and safely.
48

First responders not only need just plain everyday training. We

need an exceptional training. There is a facility, it is called the

Transportation Technology Center in Pueblo, Colorado that handles

that type of training. Through the generous sponsorship of CSX

Railroad, I was provided the opportunity to attend a week-long

course in March, 2005. The main emphasis of this training was on

rail cars, but more specifically the tank cars. Even though I serve

in a position that no longer I have to work in the hot zone, this

week-long class allowed me to become familiar with everyone and

they became familiar with me, and we knew what each other’s duties are. This, in itself, is priceless.

We must work as a team on incidents like this. When we do this,

it builds confidence with one another. If you take classroom work,

add hands-on training, and add applying this training to a practical exercise, it equals a formula for the safest and most effective

resolution to a hazmat incident.

Unfortunately, most first responders are not afforded this same

opportunity due to the restricted budgets. We owe a lot of thanks

to Norfolk-Southern and CSX for providing a way for some of this

country’s first responders to attend these courses. In my opinion,

providing the opportunity for more first responders to attend is the

type of training that is money well spent.

I think the Federal Government should assist local communities

to provide this type of training to their firefighters.

Another good example of this type of training with hazardous

materials is a program that is offered by the International Association of Firefighters. They are using instructors who are both certified in fire service instruction and certified hazmat responders.

They offer this free of charge real-world training in local communities that few institutions can match.

This brings me to a second point: Firefighters need to receive appropriate levels of training. It is extremely important that emergency responders are trained at a level that is appropriate to their

response. The Department of Labor regulations identifies five different levels of hazmat emergency response. That is: awareness,

operations, technicians, hazmat specialists, and then the on-scene

commander. But unfortunately, the normal training that is provided in many States is the awareness level, and this is totally unacceptable. This is inadequate.

This type of training is inadequate to prepare a firefighter response to a hazmat call. Awareness training is really intended for

employees at a facility where hazardous substances are present,

and is intended to do, one, train them to recognize a potential release; and two, to initiate the response. In other words, let’s call

the proper agency, like the fire department.

All firefighters at a minimum should be trained at the operations

level. Operations level is designed for individuals who respond to

releases and/or potential releases. It teaches them how to protect

the nearby persons, property and the environment from the release

itself.

They also train to contain a release from a safe distance, keep

it from spreading, and prevent exposures. Clearly, this is the minimum level of training that firefighters should be trained.
49

Finally, as the Graniteville train accident proved, timely and accurate information are the key to any successful emergency response. This is especially true in a hazmat call. Without the ability

to quickly and accurately identify hazardous cargo, firefighters may

lack the necessary information to properly respond to a hazmat incident. An improper response could result in injury and even death

to both the responder and civilians.

Identifying placards for hazardous materials rail cars are also an

important life-saving tool that can help provide firefighters with

the necessary information they need to respond. They are essential

for first responders to quickly obtain and easily obtain information

they need to size up the scene.

However, I do believe new technologies should be examined just

to see how they may be best utilized to supplement placards and

enhance the ability of the first responders to properly respond to

incidents involving hazardous materials.

I apologize for going over, and I want to thank you again for inviting me to appear here today. If there are any questions, I will

be pleased to attempt to answer them.

Mr. LATOURETTE. Chief Bell, thank you very much. You don’t

have to apologize. My experience with those of you from below the

Mason-Dixon line, it takes about 10 minutes what we up north say

in five.

Mr. BELL. Yes, sir. OK.

Mr. LATOURETTE. Mr. Mann, thank you very much for coming.

We look forward to hearing from you.

Mr. MANN. Thank you, Mr. Chairman. I am also from the South,

and being a lawyer on top of that, you can see the problems.

My testimony today is endorsed by the Association of Trial Lawyers of America. I am a trial lawyer. As background, I participated

in drafting the Federal Railroad Safety Act in 1970, and in particular the preemption section. In fact, I looked at some of my old files

going back to those years, and I found some of my handwriting on

the preemption section which I helped draft.

I have been involved in quite a number of hazardous materials

accidents as either a consultant or representing the plaintiffs in the

litigation. So I think I can give the Committee some insight on

what Congress did in its deliberations in 1970 regarding preemption, and where it is today.

First, the rail industry, I appreciate Mr. Hamberger stating that

he regretted and offered his sympathy to the innocent victims, but

two points. One is in every case that I have ever been involved in

regarding hazardous materials accidents and serious injuries, the

entire industry has argued in front of the courts that we were preempted. State common law did not apply. I submit to you that nowhere in the Federal Railroad Safety Act deliberations by Congress

was there any suggestion that State common law should be preempted. It wasn’t even proposed by the railroads in those days. It

is a recent phenomenon.

It is just inconceivable that Congress at that time, or even today,

would even consider depriving innocent victims from recovery

where there is negligence involved. We are not talking about cases

where there was no negligence. We are talking about negligence.

If there was no negligence resulting from these accidents, there
50

would be no litigation. We are talking about somebody who caused

a problem.

I submit to you that the Minot decision is a strange decision, I

must admit. It is wrong on many grounds in my view. Of course,

my view is just as an individual, but the Supreme Court has offered its views on preemption. I am just going to spend just a

minute on what it has said. First of all, there is a presumption

against preemption. Secondly, it pointed out under the Federal

Railroad Safety Act that it displays considerable solicitude for

State law. And finally, to be preempted, there must be a clear and

manifest purpose of Congress. That certainly didn’t happen in the

Federal Railroad Safety Act.

Now, I want to point out a couple of things that were raised in

the hearings today. One is, Mr. Barrow, you mentioned train makeup. Well, the railroad workers going back into the early 1980’s proposed to both Congress and the Federal Railroad Administration

that there be standards set by FRA on train makeup. However,

train track dynamics is a complicated issue. I will just give you one

example. If there are heavy loaded cars at the rear of the train and

empty cars in the front of the train, you are begging for a derailment. So that can’t occur. You have to have some combination that

is a safe train makeup. But there should be standards. I absolutely

agree with you, and so do all the railroad workers in the country.

Regarding the issue of human factor accidents, which you have

heard this morning, where they pointed out, various witnesses,

that it is up to about 40 percent today. I want you to keep in mind

that the railroads themselves and the railroads only determine the

causes of accidents, which are reported by the Federal Government.

The FRA doesn’t investigate. They may investigate maybe 1 percent of the accidents in the country. So that statistic must be taken

in context with everything else you have to consider.

With regard to the national insurance issue, well, first of all, if

you look at what happened with the nuclear industry and the Federal insurance, I think you are going to find there are significant

problems there.

But aside from that, the incentive to provide a safe railroad is

the key to everything. Unless an innocent victim can recover, that

incentive goes away because in truth, if one would really analyze

Federal Railroad Administration enforcement, it is very weak. They

do a nice job on certain things, but it is barely a slap on the wrist

on the number of penalties that they impose versus how many violations they discover.

Thank you very much.

Mr. LATOURETTE. Thank you very much, Mr. Mann.

Mr. Beardsley, thank you for your patience. We look forward to

hearing from you.

Mr. BEARDSLEY. Thank you, Mr. Chairman, Mr. Barrow. Good

afternoon and thank you for the invitation to speak today.

My name is James Beardsley. I am here with my colleague Deborah Bates, and we are attending the hearing representing Aon’s national rail practice. We are in the business of providing insurance

brokerage and risk management solutions to the railroad and railrelated industries.
51

As representatives of Aon’s national rail practice, we currently

design the excess liability programs for all but one of the five

American Class I freight railroads. In addition, we have a substantial book of short line, transit and national passenger rail accounts.

Our purpose for being here today is to give the committee a

snapshot of the current state of the rail liability market and how

the transportation of hazardous materials may impact the capacity

and pricing of the insurance for those railroads.

Globally, there are currently three geographic centers for railroad liability insurance: the United States, Europe and Bermuda.

Their combined capacity for rail is about $1 billion. Our written

testimony gives a rundown of the more substantial underwriters in

this arena, but I don’t see that there is any need to go through

those things individually right now.

In the overall global insurance market, there is substantially more than $1 billion available, but we are dealing with a class that

is considered to be quite volatile and only a select few companies

are willing to participate.

Of the underwriters referenced in the written testimony, there

are about four of them that are considered to be lead markets. The

lead markets set the terms and conditions of the insurance in negotiation with ourselves and our clients, the railroads. They set the

pricing and the attachment point on the lowest layer of the insurance.

The American domestic leaders, the American Home and the

Lexington, are both divisions of AIG. The European leaders are the

Gerling, which is headquartered in Cologne, Germany, and Lloyds

of London, of course, led by the syndicate, the Wellington. Over the

last several years, the North American railroad liability market

has contracted substantially. Five years ago, railroads were able to

purchase in excess of $1.5 billion of liability coverage.

The number of insurance companies and Lloyd syndicates willing

to write freight railroads has decreased, while the price charged for

the capacity has increased. There are several events that have exacerbated this situation, including the events of September 11,

large derailments with chemical releases, contraction of the worldwide insurance market for risks like railroads, large passenger

losses, and even the hurricanes.

It is important to note that the recent bombings in both London

and Madrid focused underwriters’ attention on the terrorist threat

as well as it relates to the rail industry. This is in light of the fact

that most of the participating liability underwriters provide full

terrorism cover and a large percentage of that capacity is not eligible for protection under the extended TRIEA as it comes from foreign insurance companies. As a result, any further terrorist event

on a transit passenger or freight railroad could have a disastrous

impact on the available rail capacity and the breadth of coverage

available.

Now, perhaps more specific to the subject of this hearing, we are

very concerned that a further large liability loss involving hazardous chemicals, especially inhalants, could result in an additional

contraction of the liability market capacity and a spike in its price.

When underwriters are examining a submission in order to evaluate the exposures on freight railroads, their attention is drawn to
52

the number and type of hazardous material carloads. This information will have a direct bearing on the premium charged and the capacity offered.

Underwriters focus on the holding of hazardous materials because they have been the proximate cause of many of the largest

losses to insurers to date. We feel that we should emphasize that

terrorism and hazardous chemical data must be looked at in conjunction with each other. These are the two major areas of concern

for the participants on excess liability programs for freight railroads, and thus are a major concern for the railroads themselves.

In conclusion, as the professionals charged with the task of securing financially secure capacity for our railroad clients to cover

catastrophic accidents or events, we must report that we are concerned. We are concerned about the continued viability of the railroad liability market in the face of another catastrophic hazmat

claim.

We are concerned more from the standpoint of adequate availability than merely cost. Had the Graniteville, South Carolina loss

happened at a different time of day or another railroad derailed in

a more populated area, the likelihood of the ultimate loss exceeding

the available insurance, and thus undermining the liability market’s long-term commitment to railroads, increases dramatically.

At Aon, we are always in search of new and additional capacity

to replace underwriters who exit the rail liability market. At this

point in time, there are not many options open to replace the waning capacity. One more catastrophic loss could collapse the available structure of the risk transfer completely.

Thank you very much for your time, and I look forward to your

questions.

Mr. LATOURETTE. Thank you, Mr. Beardsley.

Just so I am clear, when you say that the current capacity of $1

billion, are you indicating that if I was a railroad and I wanted to

buy the most insurance that was available to me, that the most insurance that is available to a Class I railroad today is a policy of

$1 billion?

Mr. BEARDSLEY. It is about $1 billion.

Mr. LATOURETTE. About $1 billion. And just when you talk about

attachment points, is that what I would call a deductible?

Mr. BEARDSLEY. Right.

Mr. LATOURETTE. OK.

Mr. BEARDSLEY. Similar to that, but I won’t get into insuranceese with you.

Mr. LATOURETTE. OK. So basically, if the railroad was flush with

cash and wanted to buy the best policy that they could, they could

get maybe $1 billion of coverage. What would the attachment point

be, $50 million?

Mr. BEARDSLEY. Most of the attachment points currently are at

about $25 million.

Mr. LATOURETTE. About $25 million. Are you aware of any judg- ments or any exposure above $1 billion that has been incurred in

judgments against railroads?

Mr. BEARDSLEY. No, I don’t. The largest insured loss to date that

we are aware of is the Graniteville, South Carolina loss, which is

reserved as something substantially less than that.
53

Mr. LATOURETTE. OK, thank you.

Mr. Mann, I have to agree with you. I don’t know how the court

came up with a decision in the Mehl case. I don’t know what they

were thinking. I don’t know how they determined that there was

preemption.

I was interested because one of my questions was whether or not

the railroad had argued that there was preemption, because I find

that to be kind of an interesting argument. Without naming the

railroad, we had a similar situation back in Ohio where a railroad

came in and said that State law should apply, and then when they

lost, they said, oh, wait a minute, we think Federal law should

apply.

I didn’t quite understand that. Are you aware, however, in that

case that in both of our opinions was wrongly decided, is there any

constitutional recourse for the folks that had their claims dismissed

or settled in light of the fact that the court ruled the way that it

did?

Mr. MANN. The litigation has moved to Minnesota because the

Federal judge apologized in his opinion, and he suggested that the

plaintiffs move their case to Minnesota. However, both cases have

been removed to the Federal court. In the Federal court system,

there have been inconsistent decisions. In most all of the State

court decisions, they have not ruled that there was preemption of

State common law.

One of the arguments made in the preemption arena is that

under the 49 U.S.C. 20–106, which is the preemption section, the

railroads, one of their favorite arguments is Congress said there

should be national uniformity. Well, the Supreme Court has addressed that also, I would submit, in a case called Sprightsman v.

Mercury Marine at 537 U.S. 51. The Supreme Court said, the concern with uniformity does not justify the displacement of State

common law remedies that compensate accident victims and their

families and that serve the actual prominent objective of promoting, this was a Boat Safety Act case, which is almost the same language as the Federal Railroad Safety Act language regarding preemption.

So the Supreme Court told the judge that uniformity is not the

key here, but the judge just paid no attention to it.

Mr. LATOURETTE. Right. And Chief, I took from your testimony

that you found the experience out at the Pueblo site run by the

FRA and AAR to be time well spent. Did you train on the permanent train wreck out there that they have?

Mr. BELL. Yes, sir. It is as realistic as it can get, even as far as

live fires and actual explosions.

Mr. LATOURETTE. I remember when I was out there, I was so impressed with it. We had the folks from Union Pacific who were

training at the time, and they had one fellow in on his laptop corresponding with people so that they could assess what it is that the

first responders were dealing with, and then the crew was out

there.

I found it to be great. I know you were in the room. We discovered in preparation for this hearing that they had a capacity out

at Pueblo to do three times as much training as they are currently

doing. I hope Administrator Boardman takes it up with his coun-
54

terparts at Homeland Security. I don’t know why we wouldn’t be

sending people out there. I think it is money well spent.

And then lastly, before I yield to Mr. Barrow, Mr. Durbin, you

were in the room when you heard Mr. Hamberger’s proposal about

a Federal backstop, for lack of a better word, and I assume I know

your answer, on being relieved from the common carrier obligations. I am not even going to ask you on that question.

But what is your reaction to the proposal by AAR relative to this

Federal backstop or cap?

Mr. DURBIN. Again, our concern was whether or not removing or

reducing liability would end up somehow providing a disincentive

for improving safety. But it is an issue that has got to be discussed

within the entire transportation system, to make sure that we are

doing everything possible from rail operations to tank car design to

emergency response, to look at the whole picture before we start

looking at where do we reduce and remove liability in the system.

Mr. LATOURETTE. Then let me just ask you this, we have this

whole issue of these dangerous chemicals. I think I asked Mr.

Hamberger about it. Why don’t some of your members substitute

this sodium hypochloride for chlorine gas? Why isn’t that a decision

that is made to benefit, reducing everybody’s liability? Do you

know?

Mr. DURBIN. Well, those are decisions made by the customers

and the users, and those decisions are being made. They are legitimate decisions that have to be made, and that are made, but they

are not simple, just let’s go swap out a chemical here. The Blue

Plains decision was a three year process to come up with, is this

the right thing for the Blue Plains facility. There were a lot of risk

tradeoffs there. I think it was a perfectly legitimate decision to

make, but they no longer have the rail tank car there. You now

have for every tank car, multiple trucks that are on the railroad.

I am not saying it was a bad decision, and those decisions are

being made.

Secondly, I would tell you from an industry standpoint, I mean,

this is an industry, and certainly our members don’t shy away from

innovation and competition, and are always changing and innovating and improving the safety of their products and the way we distribute them. We spend $23 billion a year in research and development. One of every eight patents goes to the business of chemistry.

We have the safest manufacturing industry in the country. We

are very proud of that. So I think that these are things that we

bring to the table when we are part of this system for improving

safety in the transportation sectors.

Mr. LATOURETTE. Thank you very much.

Mr. Barrow?

Mr. BARROW. Thank you, Mr. Chairman.

Chief, I want to follow up on your comments and explore a couple

of areas: one, the importance of training and the level of training,

and also the importance of real-time notice. If we take anything

away from this hearing today, from the first responder community,

it is to take an understanding of just how training plays a role in

this.

I don’t think a lot of folks realize this, but any level of training

and responding to a hazmat situation delays your response to some
55

extent. And inadequate training delays your response even more.

I know it runs kind of counterintuitive because the culture of the

first responder community is rush to the hazard, as close as you

can; close with the enemy; and deal with it.

But how is the situation different when you all know you are

dealing with a hazmat situation?

Mr. BELL. Well, you are exactly right. That is the reason there

are red lights and sirens on fire trucks is to get there quick. That

is the typical norm for firefighters. We want to get there quick and

our ultimate goal is to help. When we show up, we are there to

help, whether it is to save a life or property.

When you look at the hazmat aspect of it, it changes completely.

We have to sit back. We have to formulate game plan, and you

have to make sure the game plan is well organized and put together, and everybody has to agree on it.

Let me make a quick comparison. I have thing in my head that

I compare a hazmat situation to. If you were to take me outside

this room, blindfold me, tie my hands up, and cut out all the lights

and cover all the windows, and you tell me: Over there on the left

side of the room there is a rattlesnake; go get it.

And see, you just can’t rush in. That is what a hazmat situation

is like. It is trying to deal with something and the more information you get, you know, you untie my hands, and I get more information, and the blindfold comes off; more information, the lights

come on, and so forth and so on.

So you have to sit back and wait until you have the right information and wait until you have the right plan, then go.

Mr. BARROW. This leads to my next observation about the importance of training, and inadequate training. Any amount of training

tells you you have to stand off from the hazardous situation. Inadequate training doesn’t give you some idea of how to attack the situation. So I first want to commend the industry and the FRA, because together they are funding training efforts. But this is an area

where I think we can and need to do more.

What is the effective level of training we have right now? And

how does that delay response even more?

Mr. BELL. Basically, everybody trains to awareness, which is

what just tells you, watch out; there is something going to happen;

get out of the way. The International offers the operations level

free of charge, and I really think that is a good program. They offer

a very good program.

Mr. BARROW. It gives you the ability and the training to actually

do something about it.

Mr. BELL. Exactly. You know, you can take it further. We have

a few in our fire department that are beyond the hazmat tech level.

But operations is the minimum. Awareness, to be honest with you,

is just not enough.

Mr. BARROW. Lastly, on the subject of real-time notice, an important subject any way you look at it. According to the reports of the

NTSB and others, there was at least a 25 minute to one hour delay

in getting information on what the railroad knew and when they

knew it, to the first responders on the scene. When you tack a 25

minute to one hour delay in responding to all the people in the sit-
56

uation, aren’t you increasing significantly the risk of harm to folks

who could be rescued?

Mr. BELL. Yes, sir. First of all, to get the information, you can

formulate a game plan and do your rescue. The further you delay

it, until you get the information, you can’t formulate a plan.

Mr. BARROW. They had a lady who was trapped in the car as a

result of the collision and was right next to the incident, who managed to survive the thing. If the wind had changed, she would be

dead today.

Mr. BELL. That is correct. She did survive and she was rescued.

But like I said, until we knew exactly what was going on, we didn’t

want to send a rescuer in there, so we had to get the information.

Mr. BARROW. My point is, as long as it takes you all to formulate

a plan, and as long as it takes you all to implement a plan, if you

tack on the time it takes for us to get the information the railroad

had to you all, that is just that much added time, that much added

exposure to risk of harm.

Mr. BELL. Yes, that is exactly right. Time is a very important

factor. The more time you take to get to a victim, the less chance

their survivability is.

Mr. BARROW. Thank you, Chief.

Mr. LATOURETTE. Thank you, Mr. Barrow.

To this panel, I want to thank you very much for your testimony,

and also for answering our questions. I want to thank all of the

witnesses who appeared before us today, together with the members who participated.

This hearing is adjourned. Thank you very much.

[Whereupon, at 1:42 p.m. the subcommittee was adjourned.]
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