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REDUCING REGULATORY BURDENS AND 

ENSURING SAFE TRANSPORTATION OF 

HAZARDOUS MATERIALS 

(112–24) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

RAILROADS, PIPELINES, AND 

HAZARDOUS MATERIALS 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

APRIL 12, 2011 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

Available online at: http://www.fdsys.gov/ 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JOHN L. MICA, Florida, Chairman 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington 

FRANK C. GUINTA, New Hampshire 

RANDY HULTGREN, Illinois 

LOU BARLETTA, Pennsylvania 

CHIP CRAVAACK, Minnesota 

BLAKE FARENTHOLD, Texas 

LARRY BUCSHON, Indiana 

BILLY LONG, Missouri 

BOB GIBBS, Ohio 

PATRICK MEEHAN, Pennsylvania 

RICHARD L. HANNA, New York 

STEPHEN LEE FINCHER, Tennessee 

JEFFREY M. LANDRY, Louisiana 

STEVE SOUTHERLAND II, Florida 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

VACANCY 

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 

ELIJAH E. CUMMINGS, Maryland 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

RUSS CARNAHAN, Missouri 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

MAZIE K. HIRONO, Hawaii 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

STEVE COHEN, Tennessee 

LAURA RICHARDSON, California 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

(II) 

SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS

BILL SHUSTER, Pennsylvania, Chairman 

GARY G. MILLER, California 

SAM GRAVES, Missouri 

SHELLEY MOORE CAPITO, West Virginia 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

JAIME HERRERA BEUTLER, Washington 

RANDY HULTGREN, Illinois 

LOU BARLETTA, Pennsylvania 

LARRY BUCSHON, Indiana 

BILLY LONG, Missouri 

PATRICK MEEHAN, Pennsylvania 

RICHARD L. HANNA, New York 

STEPHEN LEE FINCHER, Tennessee 

JEFFREY M. LANDRY, Louisiana 

JEFF DENHAM, California 

JOHN L. MICA, Florida (Ex Officio) 

VACANCY 

CORRINE BROWN, Florida 

JERROLD NADLER, New York 

RICK LARSEN, Washington 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

LAURA RICHARDSON, California 

ALBIO SIRES, New Jersey 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

NICK J. RAHALL II, West Virginia 

(Ex Officio) 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vi 

TESTIMONY 

Boston, David W., President, Owen Compliance Services, Inc., on behalf of 

the Institute of Makers of Explosives ................................................................. 67 

Byrd, LaMont, Director, Safety and Health, International Brotherhood of 

Teamsters ............................................................................................................. 67 

Chapman, Sandra, Director of Transportation, Corporate Regulatory Affairs, 

Sherwin-Williams Company, on behalf of the American Coatings Association ........................................................................................................................ 67

Derig, Paul, Environmental, Health and Safety Manager, J.R. Simplot Company, on behalf of the Agricultural Retailers Association ................................ 67 

Quarterman, Hon. Cynthia, Administrator, Pipelines and Hazardous Materials Safety Administration ................................................................................. 67 

Windsor, Barbara, Chairman, American Trucking Associations ......................... 67 

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Graves, Hon. Sam, of Missouri ............................................................................... 111 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Boston, David W. ..................................................................................................... 116 

Byrd, LaMont ........................................................................................................... 126 

Chapman, Sandra .................................................................................................... 137 

Derig, Paul ............................................................................................................... 140 

Quarterman, Hon. Cynthia ..................................................................................... 146 

Windsor, Barbara ..................................................................................................... 158 

SUBMISSIONS FOR THE RECORD 

Boston, David W., President, Owen Compliance Services, Inc., on behalf of 

the Institute of Makers of Explosives, response to request for information 

from Hon. Shuster, a Representative in Congress from the State of Pennsylvania ...................................................................................................................... 80 

Brown, Hon. Corrine, a Representative in Congress from the State of Florida, 

request to submit the following for the record: 

Pipeline and Hazardous Materials Safety Administration, ‘‘New Approaches 

Needed in Managing PHMSA’s Special Permits and Approvals Program,’’ 

Report No. AV–2010–045, March 4, 2010 ...................................................... 5 

Committee on Transportation and Infrastructure, Summary of Subject Matter for hearing on ‘‘Concerns with Hazardous Materials Safety in the 

U.S.: Is PHMSA Performing Its Mission?’’ September 9, 2009 ..................... 38 

Air Line Pilots Association, International, written statement ......................... 59 

Byrd, LaMont, Director, Safety and Health, International Brotherhood of 

Teamsters, response to request for information from Hon. Brown, a Representative in Congress from the State of Florida ............................................ 96 

Derig, Paul, Environmental, Health and Safety Manager, J.R. Simplot Company, on behalf of the Agricultural Retailers Association, response to request for information from Hon. Richardson, a Representative in Congress 

from the State of California ................................................................................ 92 

Quarterman, Hon. Cynthia, Administrator, Pipelines and Hazardous Materials Safety Administration: 

Response to request for information from Hon. Shuster, a Representative 

in Congress from the State of Pennsylvania .................................................. 99 

Response to request for information from Hon. Brown, a Representative 

in Congress from the State of Florida ............................................................ 102 

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(1) 

REDUCING REGULATORY BURDENS AND 

ENSURING SAFE TRANSPORTATION 

OF HAZARDOUS MATERIALS 

Tuesday, April 12, 2011 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON RAILROADS, PIPELINES, AND

HAZARDOUS MATERIALS, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 3:00 p.m., in room 

2167, Rayburn House Office Building, Hon. Bill Shuster [chairman 

of the subcommittee] presiding. 

Mr. SHUSTER. The hearing will come to order. 

Good afternoon. Welcome everyone. Thanks for being at this subcommittee hearing on railroads, pipelines, and hazardous materials. 

As you might notice, this is a fly-in day, so we might be light on 

members here. I am informed the ranking member will be here. 

She is en route. We are glad to have Mr. Filner here today. 

The hearing today will focus on the reauthorization of hazardous 

materials safety programs of the Pipeline and Hazardous Materials 

Safety Administration, or PHMSA. The current authorization of 

these programs expires September 30th, 2008. 

We also will be focused on how we can best reduce the regulatory 

burdens while ensuring hazardous materials are transported in a 

safe and efficient manner. 

We have a distinguished panel of witnesses here with us today, 

and it is my pleasure to welcome back Administrator Cynthia 

Quarterman, the Administrator of PHMSA. I believe this is your 

first trip up here in 2011. In 2009 and 2010, I think we saw you 

here about every week, so we are very familiar with you, as you 

are with us. So, again, thanks for being here. 

I think, as most people know, that the Transportation Committee 

is working on the reauthorization of a transportation bill, and it is 

important that I say transportation bill. In years past, it has really 

been called the highway bill, but Chairman Mica is going to put 

great focus on it being a transportation bill looking at the wide variety of transportation needs we have in this country. 

In addition to a strong rail title which will be included in the reauthorization, we are looking to reauthorize hazardous materials 

safety programs in the transportation bill and look forward to the 

discussion here today. 

2 

I am interested in highlighting some of the key areas that I feel 

strongly must be given closer examination and that we have raised 

before: special permits and approvals and cargo tank wetlines. 

Special permits provide a means for varying from a specific provision of the Hazardous Materials Regulation, the HMR, in a way 

that achieves at least an equivalent level of safety to regulations 

or is otherwise consistent with public interest. 

Similarly, special permits and approvals allows its holder to perform a particular function that requires consent under the HMR. 

For example, explosives and fireworks may only be transported 

with an approval. To be issued, a special permit or approval of the 

application must have a fitness determination made by PHMSA. 

In October of 2009 and August, 2010, PHMSA changed its procedure for conducting fitness determinations for special permits and 

approvals. I am concerned that PHMSA failed to go through usual 

notice and comment procedures in making these changes. Doing so 

in this manner lacks transparency and takes away the ability of 

stakeholders to give their input. Moreover, the current criteria for 

judging fitness are not entirely clear, which creates a climate of 

regulatory uncertainty. 

During the same period of time, PHMSA noticed a rulemaking 

that became final on January 5, 2011, requiring additional information in special permit applications. Much of this additional information does little to increase safety, while creating unnecessary 

burdens on shippers, while also increasing costs. 

We are focused on streamlining the special permit and approval 

procedures, incorporating more special permits into the hazardous 

materials regulations, and establishing fitness criteria in a manner 

that promotes consistency, predictability, and transparency. Doing 

so will both enhance safety and allow the economy to grow. 

I also want to touch on the issue of cargo tank wetlines. We have 

addressed this issue in the subcommittee previously and will discuss it in more detail today. 

According to the U.S. Department of Transportation, from 1999 

to 2009 there were eight incidents of fatality or injury attributed 

to wetline releases. There are over 50,000 cargo tank shipments of 

flammable liquids each day, meaning the risk of a fatal wetline incident is one in 30 million. Despite this low incident rate, in January, 2011, PHMSA issued a notice of proposed rulemaking on this 

issue to require trucks to undergo retrofits or meet certain performance standards that would increase costs. Simply put, the rulemaking overstates the benefits of changes to wetlines regulation 

and underestimates the significant cost to retrofit tank trucks and 

the inherent risk of retrofitting. 

In closing, I am looking forward to hearing from our witnesses 

regarding issues concerning maintaining uniformity and avoiding 

duplication. I continue to highlight in our hearings that, throughout our government, I am deeply concerned with the regulatory 

overreach that cripples our economy, stifles job creation, and ties 

our Nation in red tape. 

I applaud President Obama for his recent comments on reducing 

the regulatory burden and for calling for a governmentwide review 

of burdensome regulations. However, it seems like every time I 

3 

turn around, another agency is making—moving forward with new, 

difficult, and expensive rulemakings. 

We must ensure that our regulatory process maintains the highest level of safety while appropriately balancing the importance of 

promoting economic growth, innovation, and competitiveness and 

job creation. There is a significant disconnect between the President’s word and the action of many of the agencies in his administration. 

And, with that, I would like to yield to the ranking member, if 

she has a statement. 

Ms. BROWN. Thank you for holding this important hearing on the 

reauthorization of the Department of Transportation hazardous 

materials safety program. 

Last Congress, when I was chair of this subcommittee—it seems 

like a very long time ago—we conducted an extensive investigation, 

along with the DOT general, which raised some serious safety concerns within the agency. I am happy to be here today to hear from 

PHMSA and other stakeholders to see how the program is doing, 

how they have made it safer, and what we need to consider as we 

work to reauthorize the important safety program. 

SAFETEA–LU made a number of significant changes in the hazardous materials safety program. The law provided DOT with enhanced inspecting authority. Last time we had a PHMSA in this 

room, we testified—I raised concerns about the number of inspectors we had. In 2009, it was just 35 inspectors to monitor in the 

entirety of the entire country. Today, I understand we are up to 51, 

which I believe will go a long way to conduct more adequate inspections and help ensure compliance with the regulations. Yet I believe there is still a lot of room for improvement. Fifty-one inspectors for 300,000 entities is not a lot. 

SAFETEA–LU also strengthens training requirements and doubles funding for the firefighters training program. The hazardous 

material emergency preparation grant program is critically important for training firefighters and other workers on how to respond 

to accidents and incidents involving hazardous material. PHMSA 

estimated that the program provided more than two million emergency responses with initially trained or re-certifying trainees. 

As we look forward to reauthorization, I think it is important to 

continue this program and to ensure that the level of training these 

firefighters and other HAZMAT workers are receiving is adequate. 

I look forward to hearing today about what changes they have 

made to the special permitting and approval program, the subject 

of our investigation just 2 years ago. During our investigation, we 

discovered that the agency was not reviewing the applicant’s safety 

record before issuing these exemptions from safety regulations. It 

did not follow up on unreported incidents. In many cases, it did not 

know whether a carrier was even authorized to transport hazardous material. 

At that time, we issued an alarming number of special permits 

or exemptions from important safety regulations and provided little 

or no oversight to the program. Special permits and approvals are 

not a right but a privilege for carriers to be exempted from certain 

HAZMAT regulations. In law, safety is mandated to be the highest 

priority. We need to make sure that there is significant oversight 

4 

over this program, that exemptions are not just blindly handed out 

to individuals or trade associations. Safety background review and 

fitness determinations are a critical part of making this program 

a success so that, while commerce is not hindered, safety is not 

compromised. 

I would like to state for the record that I think it would have 

been more appropriate that the DOT Inspector General testify before us today to discuss their investigations and recommendations. 

I would like unanimous consent to submit for the record a copy 

of the DOT IG report and a copy of the committee’s reports on its 

investigation and findings. 

Mr. SHUSTER. Without objection, so ordered. 

[The information follows:] 

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Ms. BROWN. And I ask unanimous consent for a statement from 

the Air Line Pilots Association to be included in the hearing 

records 

Mr. SHUSTER. Without objection, so ordered. 

[The information follows:] 

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Ms. BROWN. With that, I thank the witnesses for appearing before our subcommittee today, and I look forward to hearing their 

testimony. 

Mr. SHUSTER. I thank the ranking member; and, Mr. Filner, if 

you have an opening statement. 

Mr. FILNER. Thank you, Mr. Chairman. 

I would like to take advantage, though, first of the fact that 

there is Chairman Shuster in the room by moving that we reinstate all earmarks in the transportation bill. 

Mr. SHUSTER. Without objection. I am OK with that. I have just 

got to get my leadership to go along with that. 

Mr. FILNER. Thank you. 

I want to talk just briefly, Mr. Chairman, about one issue that 

will come up in the testimony, and that is primary lithium metal 

batteries and cells. 

As you know, we passed the FAA Reauthorization Act recently, 

which included a provision that prohibits the Department of Transportation from enacting safety standards for lithium batteries and 

cells that exceed the standards set by the International Civil Aviation Organization, ICAO. I think it is absurd that the United 

States government would be prohibited from doing anything to protect U.S. citizens beyond the standard set by an unelected group 

of these representatives. The convention that set up ICAO made 

clear that the U.S. and any other country would have the right to 

adopt regulations to protect the safety of its citizens and would not 

be prohibited from doing so by ICAO. This right was provided to 

each signatory which was signed in 1944. 

This right to protect our citizens was also codified in our own 

law. Section 5120 of title 49 allows the Secretary to prescribe a 

safety standard or requirement more stringent than the standard 

or requirement adopted by international authority if the Secretary 

decided the standard or requirement is necessary in the public interest. 

When we considered the FAA bill, I intended to offer an amendment that would restrict the carriage of primary nonrechargeable 

lithium metal-based batteries and cells on cargo aircraft. It would 

have prohibited these dangerous materials on cargo aircraft until 

safe packaging materials were available and proven to contain a 

fire and the cargo aircraft itself was equipped with an effective fire 

suppression system. 

It would also—my amendment would have required cargo aircraft be equipped with smoke suppression systems that maintain 

cockpit visibility sufficient to allow the pilots to see basic flight instruments and outside environments at all times during emergencies when dense, continuous smoke was in the cockpit. 

Now, I withdrew my amendment, due to concerns that the language would prohibit the transportation of life-saving medical devices, but I think the problem of the safety still remains. 

As you all know, I think there are two types of lithium batteries, 

the primary nonrechargeable and secondary or rechargeable. My 

amendment only affected primary, nonrechargeable metal-based 

batteries and cells, which constitute, at the most, 5 percent of batteries shipped. These batteries and cells use a different manufacturing process in which lithium metal is used versus lithium ions, 

66 

which are used in the secondary type battery. The metal used is 

much more volatile at low temperatures and easily catches fires. 

While shipments containing primary lithium metal batteries 

have been banned on both foreign and domestic passenger aircraft 

since 2004, there is no such restriction on the Nation’s all-cargo 

carriers. Lithium metal batteries are increasingly finding their way 

into our air transportation system. Airlines such as UPS and 

FedEx are flying hundreds of thousands of lithium metal batteries 

on a daily basis. 

For years, cargo aircraft have safely carried hazardous materials, 

but lithium metal battery fires exceed the existing design specifications of commercial aircraft. Currently, there is no fire suppression 

system, as I understand it, that is capable of extinguishing a lithium metal battery fire in flight. In fact, on February 7, 2006, a fire 

caused by lithium metal batteries on board UPS Flight 1307 destroyed the aircraft. The pilots, fortunately, were able to land the 

flight and evacuate the plane before it became fully engulfed in 

flames. But the NTSB investigation raised serious questions about 

the safety of transporting these materials and the adequacy of fire 

suppression systems. 

The report also showed that the pilots were unable to see their 

hands in front of them as they exited the plane. Now, thankfully, 

they were close enough to the airport before the smoke blinded 

them; and if the flight had been further out it could have crashed 

into a populated area. 

Dense cockpit smoke caused by lithium battery fires has also resulted in other tragic crashes, including the fatal crash of UPS 

flight number 6 on September 3rd, 2010, in Dubai. According to the 

accident report issued by Dubai’s government, the cargo of this 

UPS plane included lithium batteries that should have been declared as hazardous cargo. They were not, and there were no hazardous cargo declarations on the flight’s manifest, but at least 

three of the shipments contained rechargeable lithium battery 

packs that should have been treated as hazardous cargo on an 

international shipping regulations. So we have a harrowing picture 

here of pilots struggling to land their plane while running low on 

emergency oxygen, fighting smoke so thick they couldn’t see their 

flight instruments. 

This report raises serious questions about shipment of lithium 

batteries which can short circuit and cause fires that burn hot 

enough to melt an airplane. Fires involving rechargeable lithium 

ion batteries can reach 1,100 degrees, close to the melting point of 

aluminum, a key material, of course, in airplane construction. Lithium metal batteries fires are far hotter, capable of reaching 4,000 

degrees. 

In light of these incidents, Mr. Chairman, I believe we have a responsibility to act to prevent future tragedies; and until adequate 

packaging and fire suppression systems are in place, we need to restrict the carriage of primary lithium metal batteries and cells 

aboard cargo aircraft. 

I thank the chair for the time. 

Mr. SHUSTER. I thank the gentleman. 

Now, Mr. Bucshon, do you have an opening statement? 

67 

Dr. BUCSHON. Good afternoon. I am Congressman Bucshon from 

Indiana’s 8th Congressional district and, in the past, a 

cardiothoracic surgeon; and I do want to comment just briefly on 

the lithium battery issue as it relates to airline safety. 

I was not in support of the amendment that was proposed and 

then withdrawn based on the fact that what we have learned from 

medicine through the years is applicable to a lot of things. There 

are a lot of anecdotes in the world about what can happen, what 

has happened, and what could happen. But I think Congress 

should regulate based on factual information. 

Some of the airline instances that have been mentioned, there is 

no definitive evidence that the lithium batteries is what caused the 

problem, in addition to the fact that hundreds and hundreds of 

thousands of these type of things have been transported on planes 

across the world with what we can find about two quoted instances 

of possible resulting airline damage. 

My State, Indiana, is the second-largest producer of medical devices in the country; and adding this type of unnecessary regulation based on anecdote would significantly hurt the economy, putting possibly 20,000 jobs at risk, based on the increased costs. 

Again, in my view, with some anecdotal evidence, I think this is 

one of the things that we need to avoid. One of the reasons I came 

to Congress is we need to avoid the Federal Government always 

stepping up when there is a very isolated incident and creating 

broad policy, again, based on anecdotal information. 

So, again, in regards to this type of regulation in general, I think 

Congress needs to avoid that and go with statistical analysis, statistical fact, and have appropriate regulation to protect the American people and to protect the world. 

Thank you. 

Mr. SHUSTER. I thank the gentleman. 

And, again, I want to thank all members for being here today. 

This is our fly-in day, so we typically don’t have hearings on the 

first day back, but I am trying to change it up so that we can get 

our work done and not be interrupted by votes and things like that. 

So I appreciate all you members for being here. 

With that, we will start with our witnesses. 

TESTIMONY OF THE HONORABLE CYNTHIA QUARTERMAN, ADMINISTRATOR, PIPELINES AND HAZARDOUS MATERIALS 

SAFETY ADMINISTRATION; DAVID W. BOSTON, PRESIDENT, 

OWEN COMPLIANCE SERVICES, INC., ON BEHALF OF THE INSTITUTE OF MAKERS OF EXPLOSIVES; LAMONT BYRD, DIRECTOR, SAFETY AND HEALTH, INTERNATIONAL BROTHERHOOD OF TEAMSTERS; SANDRA CHAPMAN, DIRECTOR OF 

TRANSPORTATION, CORPORATE REGULATORY AFFAIRS, 

SHERWIN–WILLIAMS COMPANY, ON BEHALF OF THE AMERICAN COATINGS ASSOCIATION; PAUL DERIG, ENVIRONMENTAL, HEALTH AND SAFETY MANAGER, J.R. SIMPLOT 

COMPANY, ON BEHALF OF THE AGRICULTURAL RETAILERS 

ASSOCIATION; AND BARBARA WINDSOR, CHAIRMAN, AMERICAN TRUCKING ASSOCIATIONS 

Mr. SHUSTER. Our first witness, the Honorable Cynthia 

Quarterman, the Administrator of PHMSA. I understand you have 

68 

to leave here at 5:00. If we are still here at 5:00 ourselves, there 

is probably trouble, so I will make sure, one way or the other, that 

you are out and will be able to catch your plane. 

So, with that, Administrator, proceed. 

Ms. QUARTERMAN. I appreciate that. 

Good afternoon, Chairman Shuster, Ranking Member Brown, 

and distinguished members of the subcommittee. On behalf of Secretary LaHood, I appreciate the opportunity to discuss the progress 

the Pipeline and Hazardous Materials Safety Administration is 

making in addressing current safety issues in the hazardous materials safety program. Each year, more than $1.4 trillion in hazardous materials shipments cross the United States by air, rail, highway, and water, totaling 2.2 billion tons and 320 billion ton-miles. These statistics 

show the enormity of not only PHMSA’s mission but the mission 

of the other modal administrations within the Department of 

Transportation that share responsibility in overseeing and enforcing hazardous materials transportation safety. 

In the past year, PHMSA has made groundbreaking progress in 

enhancing its hazardous materials safety program, including a 

major reorganization. Our objectives, from the outset, have been to 

protect and improve safety outcomes, improve employee relations, 

and to broaden perspectives across the agency. 

In addition, PHMSA undertook an extensive requirement campaign, filling 90 percent of all hazardous materials vacancies. As a 

result, PHMSA had a banner year in 2010, including seeing the 

lowest number of hazardous material incidents with death or major 

incident in recorded history. 

PHMSA has addressed 12 of the 22 National Transportation and 

Safety Board’s open safety recommendations, including those related to lithium batteries, cargo tank motor vehicle wetlines and 

loading and unloading of hazardous materials. Meanwhile, PHMSA 

has successfully closed all 10 outstanding Office of the Inspector 

General audit recommendations related to the agency’s special permits and approvals program. 

In the past 12 months, PHMSA doubled its rulemaking output, 

issuing 33 separate Federal register notices to establish new hazardous material regulations, including rules incorporating into regulations 45 special permits that affected tens of thousands of applicants. 

In addition, PHMSA commissioned an independent audit of our 

hazardous materials emergency preparedness grants program. The 

preliminary findings have already resulted in an action plan and 

improvements to the program, and we have released a sample application that provides State and territorial grantees with best 

practices demonstrating effective planning and training activities. 

In summary, the Department and PHMSA are taking positive 

steps to address its regulatory priorities, decrease the incidents associated with hazardous materials operations, properly manage the 

special permits and approvals program, and closely examine the 

emergency preparedness grants program to ensure that all allocated funds are being accounted for. 

We welcome any and all recommendations for making our safety 

program more effective and further ensuring the public safety. I 

69 

look forward to working with this subcommittee as we continue to 

implement measures to ensure our safety oversight. 

Thank you. 

Mr. SHUSTER. Thank you very much. 

Next, Ms. Barbara Windsor, who is the chairwoman of the American Trucking Association by day, but by night she is the president 

also of Hahn Trucking, President and CEO. 

So, with that, Ms. Windsor, please proceed. 

Ms. WINDSOR. Thank you, Mr. Chairman. 

Chairman Shuster, Ranking Member Brown, and members of the 

Subcommittee, thank you for this opportunity to testify. Once 

again, my name is Barbara Windsor, president and CEO of Hahn 

Transportation, a Maryland-based regional trucking firm that 

hauls petroleum and other bulk products. My family built and grew 

this business over 75 years, and today we operate more than 100 

trucks and employ 150 individuals. 

This afternoon I appear before you representing not just my company but also as the Chairman of the American Trucking Association. 

The trucking industry delivers virtually all of the consumer 

goods in the U.S., including essential hazardous materials such as 

pharmaceuticals to treat the ill, chemicals to purify water, and fuel 

to power our cars. The safety and security record for HAZMAT 

transportation by truck is impressive. Serious incidents have decreased by 30 percent over the past decade. 

Further, the annual number of highway fatalities caused by hazardous materials has declined from 16 to 4. While the existing regulations governing HAZMAT transportation have a proven track 

record, my written statement addresses six specific recommendations to further improve the safe, secure, and efficient transportation of HAZMAT. I will highlight three of these recommendations 

this afternoon. 

Recommendation number one, ensuring equitable enforcement. 

Primary compliance with the HAZMAT regulations rests with the 

shipper, who must properly classify the material, select appropriate 

packaging, mark and label the package, and prepare a compliant 

HAZMAT shipping paper. Each of these pre-transportation activities occurs before the carrier arrives to load HAZMAT packages on 

the truck. 

Since most HAZMAT enforcement occurs during roadside inspections, the responsible party may not be present. A carrier should 

not be cited for transporting HAZMAT where a shipper neither labels the package nor presents a HAZMAT shipping paper. Similarly, where a shipper omits a certain required information on a 

shipping paper, it is not realistic to expect the truck driver to research the chemical and catch the shipper’s mistake. 

Carriers must remain responsible for the correct performance of 

HAZMAT functions under their control. However, Congress should 

ensure that the carriers are not responsible for violations of pretransportation functions that are performed by the shipper unless 

the carrier has actual knowledge of the violation. 

Recommendation number two, reform incident reporting requirements. ATA supports the current Federal reporting requirements 

when there is a release or an incident involving HAZMAT. HowVerDate Aug 31 2005 13:43 Jul 06, 2011 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\RR\4-12-1~1\65720.TXT JEAN
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ever, today, there are dozens of telephonic reporting requirements 

at the State and local level that vary from jurisdiction to jurisdiction. Drivers have no way of knowing whether a particular incident 

triggers a local reporting requirement, and motor carriers are being 

fined if the local requirements are not met. 

The universal 911 system, combined with the existing Federal incident reporting requirements, eliminates the need for separate 

State and local reporting requirements. It should be sufficient that 

the carrier calls the national response center, when required, or 

calls 911 to ensure the local emergency response teams are mobilized. 

And recommendation number three, wetlines. The wetlines issue 

is not new to the veteran members of this subcommittee. Wetlines 

refer to the product piping underneath cargo tank trucks that 

transport gasoline and other flammable liquids and are used for 

both loading and unloading of tank trucks. 

Incidents involving wetlines are extremely rare. In fact, an individual is more likely to be struck by lightning than to be injured 

by a wetline incident. Notwithstanding this incredibly low incident 

rate, PHMSA has proposed a new restriction restricting the transport of flammable liquids in wetlines. 

My written testimony goes into additional detail on the costs and 

benefits of PHMSA’s proposed wetlines ban. We recognize that 

wetlines are the subject of an open NTSB recommendation, and we 

therefore urge Congress to have the National Academy of Sciences 

objectively study the issue and hold PHMSA rulemaking in abeyance until the analysis is complete. 

Thank you for allowing me to testify today, and I would be very 

pleased to answer any questions. 

Mr. SHUSTER. Thank you very much, Ms. Windsor. 

Next is Mr. David Boston, who is President of Owen Compliance 

Services, Incorporated. 

Mr. Boston, please proceed. 

Mr. BOSTON. Chairman Shuster, Ranking Member Brown, and 

members of the subcommittee, I am testifying on behalf of the Institute of Makers of Explosives, whose members have been adversely affected by changes to the procedures and requirements of 

PHMSA’s approvals and permits program. 

Mr. SHUSTER. Could you speak into the mike a little more? Pull 

it towards you. 

Mr. BOSTON. My written statement provides background on the 

purpose of special permits and approvals, the exceptional years’ 

long safety record achieved by industry while using these regulatory authorities, and the importance of these agency authorities 

to the economy. During my remaining time, I will highlight the serious problems that have resulted from PHMSA’s management of 

the program over the last 18 months. 

The investigations of this program in the last Congress revealed 

procedural inadequacies, none that contributed to a death or serious injury. Instead of asking holders of special permits and approvals to resubmit missing documents, PHMSA implemented standard 

operating procedures governing the issuance, revocation, and termination of these authorizations without providing for public notice 

and comment as required by statute. These new procedures set up 

71 

a complex system of application reviews, including costly site visits 

based on unpublished and unknown standards that have the potential to shut businesses down. These burdensome procedures render 

no commensurate safety benefit but affect every applicant for and 

holder of special permits and approvals. 

Adding to the complexity, PHMSA expedited new rules that radically increased the types of data applicants must submit. How this 

information would enhance safety was never explained by the 

agency. The new requirements imposed on industry and the agency 

significant additional burdens and costs. 

Without notice and comment, PHMSA has used the approvals 

process to establish unpublished requirements, undoing longstanding practices used to classify explosives without any record of 

incidents of fatality or serious injury, including issuing classification approvals with expiration dates, second-guessing the results of 

classification tests performed by laboratories approved by PHMSA, 

and relooking at the merit of so-called family approvals, as well as 

asking some applicants to break up family groups. 

Without notice and opportunity for public comment, and in spite 

of the regulated community’s longstanding safety records, PHMSA 

has redefined the historic use of the agency’s fitness authority and 

established a three-tier fitness determination scheme. 

PHMSA asserts that it is not obligated to establish fitness criteria through rulemaking because this is something that relates to 

internal processes within PHMSA. We respectfully disagree. Every 

decision has an outside effect. Industry must understand the performance standard against which it will be measured. 

Despite promised improvement, an unprecedented backlog of special permit and approval applications has developed as a result of 

the agency’s new paperwork and processing requirements. Industry 

has been told that the application processing procedures, like fitness criteria, are internal agency procedures with no external effect. However, any delay in processing applications due to the agency’s new multi-layered clearance procedure results in lost business 

opportunities. American industries are now disadvantaged in the 

global race to market by our own government. 

PHMSA’s now using this backlog and its inflated application 

processing procedures to justify imposing a user fee on special permit and approval applicants. A portion of the fee would cover 

PHMSA’s general operating budget, even though only a small percentage of the regulated community are holders of these authorities 

and the Federal Government is the program’s largest user. 

PHMSA’s user fee proposal is a hidden tax on companies whose innovation and goods are needed for economic recovery. 

While approvals, as other regulatory standards, may safely remain unchanged for years, Congress never intended that special 

permits be a long-term solution for the innovations they authorize. 

Rather, proven special permits were to be incorporated into regulation. Regrettably, PHMSA’s failure to incorporate such permits into 

its regulations now exposes the affected industries to current 

whims of agency action. 

Last week, this subcommittee heard testimony from an explosives company about PHMSA’s use of the special permit process to 

force the installation of untested technology on trucks used to haul 

72 

bulk explosives and consequences that followed. Despite best efforts 

to comply, the retrofitted systems failed, causing total system shutdown while loaded vehicles were operating at speed. Instead of 

using scarce resources to incorporate these decades-old, proven special permits into regulation, as Congress intended, PHMSA has created a perverse, upside down regulatory environment, where it is 

more difficult to move a truckload of significantly less risky explosive precursors than to move a truckload of dynamite. 

In closing, special permits and approvals are necessary regulatory tools. The approvals and permits program which provides 

safety benefits to the public has been successfully run for decades 

without serious incident and without user fee. 

Industry wants the certainty of regulations and believes that 

changes to how PHMSA implements these regulatory authorities 

should be subject to notice and comment rulemaking. PHMSA’s extensive bureaucratic changes would not have saved one life. They 

have created wasteful delays and expenditures of resources. 

This subcommittee should ensure that PHMSA promptly addresses these issues through rulemaking and without imposing 

user fees or demands for untested technology. 

Thank you. 

Mr. SHUSTER. Thank you, Mr. Boston. 

Next we will hear from Mr. Paul Derig—did I pronounce that 

right? 

Mr. DERIG. That is correct. 

Mr. SHUSTER [continuing]. Who is the environmental, health and 

safety manager for J.R. Simplot Company. 

Mr. Derig, please proceed. 

Mr. DERIG. Thank you, Chairman Shuster, Ranking Member 

Brown, esteemed members. I appreciate the opportunity to appear 

here before this subcommittee. 

I am here to testify on behalf of the Ag Retailers Association, a 

trade association which represents America’s agriculture retailers 

and distributors of crop inputs, equipment, and services. 

As stated, I am the environmental, health and safety manager 

for the J.R. Simplot Company, directly responsible for support and 

oversight of regulatory programs, including transportation in 

Simplot’s agribusiness retail operations. 

Simplot retailer operations are comprised of retail farm supply 

distribution systems, with over 100 facilities in 16 western states 

that provide products, technical, and field services to local farmers, 

horticulturists, and landscapers. 

Over the past 30 years, I have been involved with many aspects 

of hazardous material handling and transportation, both through 

industry experience and as a public responder in the States of 

Idaho and Oregon. This hearing is important to ARA, as the ability 

to safely and effectively transport crop input products is vital to 

our industry and food production. 

ARA supports the Federal Government’s principal role in 

HAZMAT transportation, regulation, and enforcement but is concerned about the administration of several portions of the Hazardous Material Transportation Act. 

First, the hazardous material safety permit program needs improvement. Every 2 years, carriers must renew their hazardous 

73 

material safety permit; and the eligibility criteria for that renewal 

cycle is on a floating scale. So the bottom 30 percent in each category are disqualified for permit renewal. This results in greater 

than 50 percent of the applicants being deemed ineligible for the 

hazardous material safety permit. 

Furthermore, the system is biased against carriers that operate 

in rural areas. Carriers in rural areas receive far fewer inspections 

than carriers operating on Federal highways and busy areas. 

The safety level should not float from permitting cycle to permitting cycle. A level of safety should be defined and not fluctuate 2 

years later. This disqualifying category data should be aggregated 

so that a company’s entire record is taken into account. Additionally, Congress should conduct oversight of this program. 

To illustrate, I would like to share a personal experience. In January, 2010, Simplot’s hazardous material safety permit renewal 

was denied based on eligibility. In other words, Simplot was in the 

top 30 percent of the national average for out-of-service violations 

in that permitting cycle. After lengthy review, I found that half of 

the out-of-service inspections were performed by the Minnesota Department of Transportation on ammonia nurse wagons that were 

not currently in use. The Minnesota Department of Transportation 

referred to a State Department of Agriculture rule stating that 

cargo tanks with more than 10 percent liquid level are deemed to 

be in service. 

After a long process of disputing the violations with State and 

Federal authorities, all of the Minnesota inspections were overturned and the out-of-service violations were removed from the system, leaving Simplot with 14 inspections for the year, with one 

hazardous material out-of-service violation. 

Simplot still did not qualify for the hazardous material safety 

permit. The denial of the permit resulted in losing the ability to deliver two products that amount to $12.5 million in annual revenues 

for our company. 

Secondly, I would like to further explain the importance of the 

DOT federally preempting State and local regulations that impose 

an unreasonable burden on commerce. 

The safe and secure transportation of hazardous material is best 

achieved through the uniform regulatory requirements. In the previous example, the State Department of Agriculture Regulation had 

Federal regulatory consequences that reached far beyond Minnesota. For a business to move forward, it is very important to 

have consistency in the rules. We suggest that Congress strengthen 

DOT’s preemptive authority, authorize DOT to preempt State and 

local regulations that impose an unreasonable burden on commerce, also remove the 2005 hazardous material amendment which 

put a limitation on the preemptive effect of the law. These amendments create a loophole through which States can use enforcement 

authority to impose inconsistent requirements on the regulated 

community. 

Lastly, I would like to talk you about preempting State hazardous materials registration and permitting programs. States are 

free to institute their own hazardous material registration programs, resulting in varying registration requirements from State to 

State. To date, only six States participate in the Alliance of UniVerDate Aug 31 2005 13:43 Jul 06, 2011 Jkt 000000 PO 00000 Frm 00085 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\RR\4-12-1~1\65720.TXT JEAN
74 

form Hazardous Materials Procedures State HAZMAT registration 

and permitting programs. Since the inception of the test program, 

we have not seen any type of safety review in our operations, and 

this has increased paperwork and costs with no added value. Congress should preempt these hazardous materials State regulation 

programs that are ineffectual to safety and security concerns. 

We look forward to working with the committee and DOT in the 

future. 

Mr. SHUSTER. Thank you, Mr. Derig. 

Next, Sandra Chapman, who is the Director of Transportation, 

Corporate Regulatory Affairs, for the Sherwin-Williams Company; 

and she is testifying on behalf of the American Coatings Association. 

Ms. Chapman, please proceed. 

Ms. CHAPMAN. Thank you, Mr. Chairman and members of the 

subcommittee. 

I want to address two issues to the committee today, the enhanced enforcement authority of PHMSA and the authority of the 

agency in the international arena. 

Historically, PHMSA has been a leader in the U.N. Subcommittee of Experts, serving as chair and, more recently, as vice 

chair. This very important multi-modal organization makes decisions that have significant repercussions throughout the hazardous 

materials transportation industry. 

Likewise, PHMSA is a multi-modal agency that has broad authority to oversee and coordinate the requirements for all modes. 

This broad, multi-modal vision is essential to PHMSA; and the 

agency must be permitted to continue to serve in this capacity in 

the international arena. 

The coordinating of the domestic and international standards for 

limited quantities over all modes of transport is a great example 

of PHMSA’s valuable work. For almost 2 years, PHMSA worked 

with industry stakeholders and through the U.N. subcommittee to 

develop standards that would provide as much multi-modal uniformity as possible. PHMSA worked closely with the Coast Guard 

to address standards for vessel mode and with the FAA to address 

standards for the air mode. The results of PHMSA’s efforts are limited quantity requirements that are clear, reasonable, and appropriate, given the limited risk presented by these materials in transport. 

Since 1967, the Secretary of Transportation has delegated responsibility to lead and coordinate DOT’s activities in these international forums to PHMSA. More recently, however, it is no longer 

clear that PHMSA is the lead agency for this work. In the most recent reorganization of the Office of Hazardous Materials, the International Standards Division appears to have been minimized in 

staff resources, and the current international standards coordinator 

is also serving as an acting director for another office within 

PHMSA. This situation is unacceptable, and Congress should send 

a strong message to PHMSA that this international work is paramount to the safety of transporting dangerous goods and by specifying that PHMSA should be the lead agency for this important 

work. 

75 

Turning to the enforcement issue, as a shipper, my industry understands that PHMSA is an enforcement agency; and there is no 

doubt that PHMSA needs the tools to enforce the HMR aggressively. But these enforcement tools must be based on safety and accountability. 

PHMSA’s partners in HAZMAT safety and enforcement are the 

State agencies. Safety demands uniformity in the regulatory requirements applied to industry and in their enforcement. We highly recommend that DOT work closely with State enforcement personnel to provide consistent training in HAZMAT enforcement, because businesses must have uniformity in enforcement standards 

and procedures in order to operate efficiently. 

PHMSA’s enforcement teams have always had the authority to 

open and inspect a package under very limited circumstances. Following the Value Jet tragedy in 1996, this authority was broadened 

to address the serious concern of undeclared hazardous materials. 

Those would be materials that are hazardous but are not packaged, 

marked, and labeled accordingly and were not presented to the carrier as hazardous. 

However, in a very recent final rulemaking PHMSA has interpreted this amendment language very broadly and is applying the 

enhanced authority to open and inspect packages to more than just 

those packages that are undeclared. PHMSA intends to apply this 

authority to packages that are declared but may be out of compliance with some other aspect of the regulations. 

For the paint industry, this has the potential to be very disruptive, as a regulated can of paint looks exactly like a nonregulated 

can of paint, except for the labels and markings. Open-and-inspect 

authority should be applied as Congress intended to undeclared 

packages. PHMSA already has an enforcement process to address 

noncompliant packages, and this process should be employed. 

Congress also must consider the broader safety and accountability concerns in this situation. Package-opening activities should 

only take place at properly equipped facilities in order to protect 

public health and safety. 

In addition, there should be notification to the offerer that a 

package is being removed from transport for inspection and testing. 

We urge Congress to consider the impact to the shipper, carrier, 

and consignee when a package is removed from transport for inspection. If a worst-case scenario occurs and there is a release, who 

is liable? 

This is an extremely difficult situation, and we ask Congress to 

include indemnification language intended to hold harmless persons who are injured, including economic injury, by a release from 

a package that is opened or otherwise handled under this section. 

With these additional safety and accountability norms, we believe that PHMSA will have the appropriate tools to aggressively 

enforce the HMR. 

Mr. Chairman, we are happy to answer any questions at an appropriate time. Thank you very much for this opportunity to address the committee. 

Mr. SHUSTER. Thank you very much, Ms. Chapman. 

76 

Next, we will hear from Mr. LaMont Byrd, who is the Director 

of Safety and Health for the International Brotherhood of Teamsters. 

Mr. Byrd, please proceed. 

Mr. BYRD. Good afternoon. My name is LaMont Byrd; and, again, 

I am the Director of Safety and Health at the International Brotherhood of Teamsters. I would like to thank Chairman Shuster, 

Ranking Member Brown, and members of the subcommittee for the 

opportunity to testify here today. 

The Teamster’s Union represents approximately 300,000 workers 

in the U.S. who handle and transport hazardous materials. These 

workers include truck drivers, dock workers, warehouse workers, 

airline pilots, and law enforcement officers and emergency response—or medical personnel who respond to traffic accidents that 

may involve the release of hazardous materials. 

We recognize the need for comprehensive hazardous materials 

legislation that ensure the strong enforcement of the rules, clearly 

defines regulatory jurisdiction, and provides for safety and security 

training of workers who are involved in HAZMAT transportation 

activities. 

We are particularly concerned with strengthening hazardous materials transportation safety in the tank haul industry and support 

the notice of proposed rulemaking to protect workers who load and 

unload cargo tanks. 

We also support the proposed rule concerning safety requirements for external product piping on cargo tanks transporting 

flammable liquids. 

Today, I will briefly comment on training for hazardous materials workers and emergency responders, OSHA jurisdiction, and 

transporting lithium batteries on aircraft. 

It is critical that HAZMAT workers be provided with comprehensive worker safety and security training to enable these workers to 

protect themselves from the hazards associated with transporting 

HAZMAT. Likewise, it is essential that emergency responders receive a level of training that allows them to protect themselves, 

nearby persons, property, and the environment. Therefore, the 

Teamsters Union supports operations level training for emergency 

responders. 

The Union developed a comprehensive HAZMAT/HAZWASTE 

training program for our members and other transportation workers, and the Union receives a training grant from DOT PHMSA to 

conduct instructor training for HAZMAT workers. To successfully 

complete our train the trainer course, aspiring trainers must complete 56 hours of classroom, lecture, and small group activities and 

teach at least one HAZMAT awareness level course while being 

evaluated by a Teamster master trainer. 

Our students who completed our program reported that they had 

their HAZMAT-related job responsibilities increase as a result of 

receiving the training. They joined the Safety and Health Committee, answered HAZMAT-related questions asked by their coworkers, responded to HAZMAT releases, helped to prevent workplace accidents, and conducted HAZMAT-awareness-level training. 

77 

We believe that the HAZMAT training program adds value in the 

workplace, as trained workers have greater safety and health 

awareness and can therefore work more safely. 

The Union is aware of efforts to eliminate OSHA authority to 

protect HAZMAT transportation workers. This is an extremely important issue to the Union, and we recommend that any attempts 

to eliminate or weaken OSHA’s authority be rejected. 

The Union has had many experiences working with OSHA on 

HAZMAT transportation issues. We feel that the agency has appropriately addressed the issues. Hazards were abated. Employees 

have been protected. We think that OSHA is doing a good job, and 

we would like to see the agency retain its jurisdiction. 

There is much concern about hazards associated with transporting lithium batteries on aircraft. The IBT is on record regarding our position, and I would like to reemphasize that we agree 

with the NTSB recommendations regarding transporting lithium 

batteries and would like to advise the subcommittee that we do not 

support the amendment to the Federal aviation authorization bill 

that essentially prohibits the FAA from promulgating or enforcing 

regulations regarding the transportation of lithium batteries by aircraft if the regs are more stringent than ICAO standards. 

The Teamsters Union believes that the current regulations that 

are more stringent than ICAO standards should be retained and 

enforced. In addition, there should be no obstructions to promulgating and enforcing any future rules that are more stringent than 

ICAO standards. 

The Teamsters Union commends the committee’s concern about 

the safety and security of the traveling public and hazardous materials workers. We urge the committee to use great care as you consider streamlining regulations as the lives, health, and safety of 

workers is dependent on strong, well-enforced regulations. 

Again, thank you for the opportunity to appear here today. I am 

pleased to answer any questions you may have. 

Mr. SHUSTER. Thank you very much, Mr. Byrd. Appreciate your 

testimony. 

I am going to start questioning, and I am going to focus on Ms. 

Quarterman so we can try to get her out of here on time. 

We heard from the industry. There is great concern being expressed over the backlog and some of the criteria that PHMSA has. 

Moving forward, I understand that there is 1,000 special permits 

and maybe as many as over 4,000 approvals that are backlogged. 

So how are you proceeding to correct the backlog and address the 

backlog that you have out there? 

Ms. QUARTERMAN. With respect to approvals, there is no backlog. 

Let me say, to give you a matter of perspective, if you look in 

my testimony, there are several charts that show the number of applications for approvals with respect to fireworks and explosives 

that were received in the past 3 years and the number that have 

been processed through the first quarter of 2011. In summary, in 

fiscal year 2009, we processed 2,100 special permits, as compared 

to 3,800 in 2010. At this point, there is no backlog above 180 days 

with respect to explosive approvals. There are three that are over 

90 days. 

78 

With respect to firework approvals, we have seen an exponential 

growth in the number of applications and in our processing of 

those. In fiscal year 2009, we processed only 1,460 firework applications. In 2010, we received 12,000. That was almost three times as 

many as we had received the prior year, and yet we managed to 

process a full 13,562 of those. 

In the first quarter of this fiscal year, we have already received 

7,500 applications, which suggests that we are seeing another doubling in the number of applications for fireworks; and we have 

processed 6,900 of those. We have 24 of those that are more than 

180 days old, and those are all subject to fitness holds because of 

issues that we are looking into with those particular applicants. So 

there is no backlog with respect to approvals. 

With respect to special permits, as you will recall, we had a very 

laborious effort with responding to concerns with that program. We 

put in place special operating procedures, and last year we managed to reduce the backlog in special permits in August of 2010. 

So it disappeared altogether. 

When we looked closer at the backlog, we discovered that the 

files for those special permits were missing a key ingredient, and 

that is the safety equivalency determination that is required. We 

found that more than half of those were not in place. So we had 

to go back and essentially recreate safety equivalencies in the files 

that appeared to be missing that document. We have hired outside 

contractors, including Volpe, who have been working with us to put 

those safety equivalencies in place. 

We fully expect that the backlog will be over with by August of 

this year. So there is a backlog in special permits, but there is a 

good reason for it, and we have a plan to get on course with that. 

Mr. SHUSTER. OK. Mr. Boston, I have got information—I guess 

submitted by your folks—that say there is a backlog of 4,000. Is 

that accurate? I mean, the numbers aren’t jibing here. 

Mr. BOSTON. The numbers that you have are taken from 

PHMSA’s approvals database that they provide on-line. If that information is not up to date, then that data would be inaccurate, 

but we have no way of knowing that. And it is the only source of 

information we have regarding the number of approvals that are 

outstanding. 

Mr. SHUSTER. I have here on this document that it is from April 

5 of 2011. Is the database incorrect? 

Ms. QUARTERMAN. Unfortunately, our Web site is not updated as 

often as it should be. We will update that with more current information. It doesn’t get updated on a daily basis. The information 

that I have is as of April 11, and I am not sure where the 4,000 

number is coming from, unless he is considering every application 

that we have as being in backlog status. We calculate backlog 

based on whether it has been in our coffers for more than 180 days, 

and there are none in the approvals program, or very few that fit 

into that category. 

Mr. SHUSTER. It is based on your Web site so—it says submitted 

and pending, and it totals 4,000. So that is something we need to 

get—Mr. Boston, are there people from your industry you are hearing from crying out that there are pending? I mean, again, we need 

79 

to—we would like to get to the bottom and see what is the right 

number—0 or 4,000 or 40 or whatever the number is. Mr. Boston. 

Mr. BOSTON. I don’t have any immediate information from other 

members, but I would be happy to research that and provide that 

information to the subcommittee for the record at a later date. 

Mr. SHUSTER. That would be important that we get that. 

[The information follows:] 

80 


Insert offset folio 66 here 65720.066
81 


Insert offset folio 67 here 65720.067
82 


Insert offset folio 68 here 65720.068
83 


Insert offset folio 69 here 65720.069
84 


Insert offset folio 70 here 65720.070
85 

Mr. SHUSTER. My time has expired. 

We are going to do a second round. But I will go to the ranking 

member, Ms. Brown, for 5 minutes; and, again, we can go another 

round. 

Ms. BROWN. Thank you. 

Ms. Quarterman, recently, PHMSA was replaced as the lead U.S. 

representative at the United Nations Committee of Experts on the 

Transportation of Dangerous Goods, an International Civil Aviation 

Organization, by FAA. Do you support this change and why did it 

occur? 

Ms. QUARTERMAN. PHMSA has not changed its status with respect to the U.N. Committee that you cited. 

With respect to the ICAO Committee, PHMSA is the person who 

determines who the representative is; and we, as a department, 

made a determination that the person who—that FAA should be 

the representative during this round because there are several 

operational issues related to aviation that are on the table. 

The authorities still rest with PHMSA in terms of who will be 

appointed to that committee, and we have the alternate position. 

So we work hand in hand with the FAA person, and we have created internal operating procedures about how things proceed forward. 

Ms. BROWN. So you have not been replaced? 

Ms. QUARTERMAN. No. 

Ms. BROWN. The Institute of Makers of Explosives claim that the 

change of the special permits and approvals over the past 18 

months have not enhanced safety. What is your response to that? 

Ms. QUARTERMAN. Well, as I mentioned in my testimony, this 

has been a record year in terms of safety with respect to the hazardous materials safety program. 

In addition to that, as the committee is well aware, in past years 

the special permit and approvals program had not been enforcing 

or following a number of items within its regulatory requirements, 

including doing a fitness determination, finding a safety equivalency. Or, if it had, it was old, and we didn’t know where it was. 

The agency didn’t know where it was. 

We now have that information and have verified the fitness of all 

the operators who have those special permits as they come forward 

and approvals. I think that enhances safety markedly. 

Ms. BROWN. We had testimony last week in this area, and it was 

indicated by DuPont that it has been slowing down and it is taking 

a longer time. And we tried to find out that information, and we 

could not. 

Ms. QUARTERMAN. Well, as the statistics show in my testimony, 

we are working at a record pace. You can see that we have been 

issuing approvals, you know, multiples of prior years. 

Ms. BROWN. And I guess my last question for you, what do you 

think Congress should do to help prevent cargo truck rollovers? 

Ms. QUARTERMAN. Well, cargo truck rollovers are a large cause 

of incidents for hazardous material safety. This past year, the 

NTSB held a hearing where PHMSA, the FMCSA, and NHTSA 

were all represented, and we began to have a conversation about 

some things that needed to be done. I think we are at the beginning stages of that. 

86 

We did put out a video with FMCSA that essentially tells a driver what to do to prevent a rollover. A large cause of these incidents 

appears to be human error, not knowing what to do when something happens in the truck. 

I think NHTSA is also looking at the possibility of electronic stability controls for some of these trucks. So we have a number of initiatives under way. 

Ms. BROWN. It seems to me that that was more of a problem 

when we had the hearing as opposed to the wetlines. 

Ms. QUARTERMAN. Are you asking if that is a higher risk? 

Ms. BROWN. It seemed to be in the testimony that we had. I want 

your response to that. 

Ms. QUARTERMAN. I agree it is a higher risk. 

One of the things that we did very recently that has never been 

done before historically is to look at what are the top 10, for example, commodities that cause incidents, what are the top 10 causes 

of the incidents and that kind of data. We are just at the beginning 

stages. In fact, it is hot off the presses in terms of being able to 

work that into our regulatory process and determine what rulemaking should follow on. 

But, importantly, flammable liquids are the number one cause of 

incident, and the wetlines rule does address potential issues with 

flammable liquid transportation. 

Ms. BROWN. Can Ms. Windsor respond to that? 

Mr. SHUSTER. Yes. 

Ms. WINDSOR. I would have to agree that a rollover is a much 

more potential issue than wetlines. There are very few cases of accidents involving wetlines as was stated before, when you consider 

that we have over 50,000 cargo shipments on a daily basis. And we 

as an industry would rather see roll stability worked on versus the 

wetlines. 

Ms. BROWN. Thank you. I will save my additional questions. 

Mr. SHUSTER. Thank you. 

Mr. Fincher. 

Mr. FINCHER. Thank you so much; and thank you, panel, for coming today to give us your comments. 

It is very frustrating to me. It seems like the right hand doesn’t 

know what the left hand is doing. And we just—keep on regulating 

and have more oversight, and we are not getting to the root of the 

problem. 

Industry, you know, it is just not from one company or one individual, but it is from multiple, about how overregulation and too 

much oversight is not the answer. We all want to make sure that 

we are doing things by the book and the safest way possible. But, 

at the same time, if we don’t stop breaking the back of our businesses by overregulation, then we are not going to be able to sustain this path. 

Just a couple of questions, just I guess one. 

Of the most recent rules and regulations that have been made 

related to transporting hazardous materials, in your opinion, what 

is the one rule or regulation that has the most negative effect on 

your industry? And this is to Ms. Windsor. Where should we focus 

first to help relieve the regulatory burdens? 

87 

Ms. WINDSOR. That is difficult. As I said, we have six recommendations. Among the issues I didn’t discuss are background 

checks, which are very onerous for our drivers, and they spend a 

lot of money on them. The Safe Trucker Act, which has been proposed on a number of years, would allow one fingerprinting. That 

would help alleviate a lot of regulatory issues on our drivers. In 

fact, we have a number of drivers that just won’t get a HAZMAT 

endorsement because of the current process, so we are losing out. 

Uniform permitting is another thing. If we just needed to go to 

one State, versus having to hire someone to contact each State individually every time we want to do a special permit it would help 

a lot. It wouldn’t change the dollar amount. It is just the way the 

processes take place. Obviously, this issue is near and dear to my 

heart, because I am a cargo tank carrier hauling petroleum products. 

There is also the wetlines issue. Instead of spending money on 

retrofitting our trailers, we there are other issues that we could 

deal with before that. 

And reforming the way we do our incident reporting. These are 

all things—the six things I brought out are a way that we could 

stay safe in transporting hazardous materials and yet be a safer industry without as much—not changing regulations, making it a little more efficient. 

Mr. FINCHER. It seems to me that if we could just talk to the experts in their fields before we start making rules and regulations 

that we know nothing about, it would make a lot more sense. 

Ms. WINDSOR. We would like to be partners and work together. 

We only want safe shipments out there on the highway. We want 

our drivers to come home safely to their families every night. We 

want the public that we are traveling with to be safe, also. 

Mr. FINCHER. Absolutely. And I think we always want to make 

sure that we get to the bottom line, and the bottom line here is the 

consumer ends up paying. 

Ms. WINDSOR. Yes. 

Mr. FINCHER. The trickle-down effect is the consumer pays. 

Again, nobody wants to be any more safe than I do, but you can 

carry it too far, and we are carrying it too far. There are too many 

people saying the same thing over and over, whether it is in the 

trucking industry, the ag industry, the fertilizer industry. 

And, Mr. Boston, any comments from you? I have got just a little 

more time left. 

Mr. BOSTON. Well, I guess, first of all, I would support that we 

want whatever regulations that we have to comply with to be clear 

and concise. We want to be measured against known standards and 

not vague, uncommunicated, unpublished standards. I think that 

the primary issue for us is that. So thank you. 

Mr. FINCHER. Thank you. I yield back. 

Mr. SHUSTER. I thank the gentleman. 

And I don’t know if he heard the statistic that was cited here 

with this wetlines issue. You have a greater likelihood of getting 

struck by lightning than you do—so maybe you ought to drop a bill 

to outlaw lightening to strike people. 

And everybody kind of chuckles, but that is the point. I mean, 

we should be focusing on the issues that really have a significant 

88 

impact. I certainly don’t want anybody to die out there. But, at the 

end of the day, the only way I can make sure of that is if we just 

stop the 50,000 shipments of hazardous—the wetline shipments 

that are out there. That is the only way to make sure it is 100 percent. There is risk involved. We got to make sure we focus on what 

the risk is. 

And, with that, Mr. Filner. 

Mr. FILNER. Thank you, Mr. Chairman. 

I was just wondering where in the 20th century or 19th century 

you would like to take us back to, my friend? I mean, what do you 

want, child labor laws taken away? I mean, what do you want to— 

this onerousness on your small businesses. Come on, we are talking 

about the health and safety of our people. 

And I will be happy to talk to the experts anytime you want. 

Truck drivers represented by the Teamsters here today, I will talk 

to them. I will talk to the pilots. I mean, you are talking to the 

guys who own the places, but I want to talk to the drivers, I want 

to talk to the pilots, I want to talk to the bus drivers, I want to 

talk to the people who make it safe, and I want to talk to the parents of those people who would like their—So, you know, tell me 

how far you want to go back, whether it is 1910, 1880, I don’t know 

where you are taking us back to, but—and I was shocked, Mr. 

Chairman, by the cavalier and flippant dismissal of so-called anecdotal evidence that the gentleman from Indiana talked about, Dr. 

Bucshon. I mean, he was a doctor. Would he dismiss 52 anecdotes 

from his colleagues that a certain medicine produced a heart attack 

and, therefore, he says he dismissed it? It is just anecdotal. So I 

am going to give that pill to my patients. 

I mean, come on. In the incidents that both of us were talking 

about, which is lithium batteries, the FAA reported 52 incidents in 

the last 16 years or so involving lithium and/or lithium ion batteries, many in the cargo departments of airlines. And, in fact, 

FAA’s tech center found that the only FAA-certified fire extinguisher could not extinguish fires from those batteries. So I take 

those anecdotes pretty seriously. I take the experts, the pilots, very 

seriously who want some regulation of these batteries. 

Yes, we have got to balance that with what we think are the socalled lifesaving devices that we all want for ourselves and our 

family, but we just can’t dismiss these anecdotes as just unworthy 

of us and somehow too onerous for the consumer. I am a consumer, 

too, and I want the pilots, I want the truck drivers, I want everybody to be safe. And I have to pay more for it? Hey, I am willing 

to do that. And let’s get that stupid thing about the consumers paying off the table. 

Ms. Quarterman, thank you for your testimony. I mean, do you 

take this stuff on the lithium battery seriously? Do you believe that 

the ICAO should restrict our ability to have regulations? And 

where is your agency in regard to any regulations that you would 

be suggesting? 

Ms. QUARTERMAN. My agency put out an NPRM earlier last year 

to regulate lithium batteries in conjunction with FAA. We are sister agencies, and we worked together to come up with a notice of 

proposed rulemaking. We received I think a record number of comments on that. We have worked together to put together a final 

89 

rule which is now at the Office of Management and Budget, which 

means we are waiting for the next steps; and there is not too much 

more I can say about it as a result. 

Mr. FILNER. You would not support the amendment that restricted us from having a more stringent regulation than ICAO 

would? 

Ms. QUARTERMAN. I believe the Department is in the process of 

putting together a statement in response to that, so I don’t want 

to jump in front of them. 

Mr. FILNER. Oh, come on, just say you are against it. 

Thank you, Mr. Chairman. 

Again, I think this Congress and this Nation deserves a little bit 

more than these—I don’t know—these flippant comments about too 

much regulation. I mean, yeah, we want to do this intelligently, we 

want to do it cost effectively, and we want to, you know, take 

science into account. But to say that, by definition, it is bad—although I doubt if those same people would want to eat a steak that 

didn’t go through USDA regulatory procedures or fly on a plane 

where there is no Federal traffic controllers or even be on a street 

without red lights. It sounds like that is the kind of society they 

want and only—you know, only the bottom line of small business 

is going to count. 

Well, it costs more money to stop at a red light, I am sure, but 

we accept them because they are an interest of all of us, as we accept meat inspections and air traffic controllers. And a lot of middle-class inspections somehow are OK, but when they hit businesses they are not OK. 

So I think we have to get away from these simplistic kinds of discussions and move on to a more science-based kind of application 

of this stuff. 

Thank you, Mr. Chairman. 

Mr. SHUSTER. That is what we are all for, moving towards a 

science-based and risk-based. Well, where is the greatest risk involved and let’s focus on that and let’s spend our efforts there to 

save as many lives and avoid as much damage to property. So that 

is what we want to do. 

Ms. Beutler. 

Ms. HERRERA BEUTLER. Thank you, Mr. Chairman. 

And I guess I would want to reiterate—I didn’t hear Ms. Windsor’s—in fact, I think she came to us with some solutions for regulations. And though it seems like, quote, let’s stop—I think what 

the gentleman said was let’s take this stupid thing about consumers paying more off the table. I think that encapsulates the 

problem over the last couple of years and why we are going after 

some of these regulations that cost consumers more money when 

they don’t have it and, more importantly, cost them jobs. I have 13, 

14, 15 percent unemployment in my neck of the woods, and I want 

people to work. 

And what I heard from Ms. Windsor—and please correct me if 

I am wrong—was, with regard to regulations, wasn’t to erase or 

wipe them out. No one is saying that. In fact, she had some really 

good solutions on the table. Eliminating duplicate and redundant 

security background checks seems like a good idea to me. Ensuring 

equitable enforcement of hazardous materials regulations, OK, that 

90 

seems fair. Reforming hazardous materials incident reporting requirements, and so on. 

So I guess I missed the part where we said let’s get rid of all regulations required to transporting hazardous materials. I want safety on our roads. I want our trucks safe. I want our families safe, 

and I want them to have jobs. I want them to be able to work. 

So it is not about protecting businesses. It is about protecting 

those people in Clark County and southwest Washington who are 

trying to transport materials and get paid so that they can pay for 

their kid’s education, their food, their clothing. 

So I guess, unless I am wrong—and this is kind of where the 

question is—you all aren’t up here advocating that we get rid of 

regulations, especially as it relates to your industry, right? You are 

advocating that we do this in a science-based, risk-assessed, solution-oriented manner, which to me seems like the adult conversation we need to have, especially after the last couple of years where 

there hasn’t been a big check on these regulations. 

And if you would care to comment, please feel free. 

Ms. WINDSOR. No, I totally agree. We are not talking about reducing regulations. We are streamlining or consolidating instead of 

so many variables out here. 

I want the workforce—I have a workforce that 50 percent of my 

drivers now don’t want to get a HAZMAT endorsement because of 

the cost of the HAZMAT endorsement from their State and then 

the TWIC card, also. It is identical fingerprinting, so it is a duplication. 

Ms. HERRERA BEUTLER. So with that then people are not earning 

as much as they could be, right? 

Ms. WINDSOR. Correct. 

Ms. HERRERA BEUTLER. Which means those are dollars for our 

economy left on the table—— 

Ms. WINDSOR. Correct. 

Ms. HERRERA BEUTLER [continuing]. At a time when we have the 

worst economy that we have seen in decades? 

Ms. WINDSOR. Correct. Because it becomes very onerous on them 

to have all this duplicated credentialing. 

Mr. SHUSTER. I thank the gentlelady from Washington. 

With that, Ms. Richardson for questions, 5 minutes. 

Ms. RICHARDSON. Thank you, Mr. Chairman. 

Ms. Quarterman, I believe it was Mr. Derig said that there is a 

bias in the system against rural agricultural folks. Are you aware 

of that or are you committed to looking into that for us? 

Ms. QUARTERMAN. It was specifically on page 3 of his testimony: 

Further, the system is biased against carriers like agricultural retailers that operate in rural areas. Carriers in rural areas receive 

far fewer inspections than carriers operating on Federal highways 

and busy areas. Therefore, you know, they don’t have enough to be 

able to statistically overcome the violation. 

Ms. RICHARDSON. So are you aware of his concern? 

Ms. QUARTERMAN. I am not aware of his concern. I have to say 

that some of the things that have been raised here today are beyond PHMSA’s jurisdiction with respect to, for example, licensing. 

That is the Federal Motor Carrier Safety Administration. I would 

be happy to take back those comments on those issues to them. 

91 

Ms. RICHARDSON. But I think there is a direct correlation of what 

he is saying, that if ultimately you are determining his permit and 

if he is saying that—and it would seem to make sense to me in a 

rural community—I come from California. Occasionally, I drive to 

Sacramento. I can see that they wouldn’t have as many inspections 

because it is, you know, wide-open highways. 

And so I am saying, would you commit to at least looking at the 

statistics to see if that is the case and if it is inhibiting their ability 

to statistically overcome their violations, which is what their concern is, which would ultimately impact their permit? 

Ms. QUARTERMAN. Absolutely. 

Ms. RICHARDSON. The second question I wanted to ask Mr. Derig. 

You said that in 2005 HMTA amendments removed all preemptive 

limitations to State enforcement authorities, and you talked a little 

bit about this. You also said this creates a loophole through which 

States can use enforcement authority to impose inconsistent requirements. Could you give us a specific example of what you 

mean? 

Mr. DERIG. I think one of the examples is in my testimony 

where, actually, the Minnesota transportation folks came in and 

did a terminal inspection, which—that is OK. You know, we invite 

them in. But what they were looking at was ammonia nurse trailers, which after the season come back and sit in the yard and are 

not introduced back into the transportation system until the next 

application season, and if there is not demand they won’t even go 

out then. 

So the Minnesota Department of Transportation justified their 

terminal inspection based on a Minnesota Department of Agriculture rule that was a State rule that said, for agricultural inspections, all nurse tanks that are used out on the farm are deemed 

to be in service if they have 10 percent on the liquid level gauge. 

So that is what the transportation folks did. They came in and 

said, oh, all these trailers are in service, should be ready to be 

transported, even though they weren’t intended to be transported, 

and the Federal Motor Carrier is very specific in the rules about 

what is in transportation or is planned to be in transportation. 

Ms. RICHARDSON. OK. I have got to cut you off there, because I 

have only got a minute and 30 seconds. 

Would you mind asking your association to give to the committee 

specific examples of where you feel the States are using a loophole 

and where a more national perspective would be more helpful? 

Mr. DERIG. Yes, certainly. 

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Ms. RICHARDSON. Mr. Byrd, in your testimony you talked about 

the fact of eliminating the shared jurisdiction between DOT and 

OSHA. And, Ms. Windsor, it is my understanding in your testimony you said that the American Trucking Association supports 

eliminating this jurisdiction, shared jurisdiction. Could you share 

with us why? 

Ms. WINDSOR. With the overlapping jurisdiction, we feel it erodes 

uniformity. So we support having DOT as the agency in charge 

versus the overlapping of the DOT and OSHA. 

Ms. RICHARDSON. OK. Mr. Byrd, could you share why you think 

that that is not correct? Because I think this is a really important 

issue. 

Mr. BYRD. Well, thank you for the question. 

We believe that both regulatory agencies bring important things 

to the table when it comes to protecting worker health and safety. 

The Department of Transportation has expertise in terms of testing 

containers to ensure that they are durable enough to transport 

HAZMAT or placarding or labeling. But the Department of Transportation is not the agency that has the staffing or the expertise 

to deal with worker health and safety issues that may relate to 

personal protective equipment, worker training, worker exposure 

levels to certain chemicals. So we think they bring very distinct expertise to the table, but they are not easily interchangeable. So we 

don’t think that DOT could take on the OSHA responsibilities. 

Ms. RICHARDSON. Mr. Chairman, could I just ask one quick follow-up question? 

Mr. SHUSTER. Sure. 

Ms. RICHARDSON. So, Ms. Windsor, if in fact what Mr. Byrd is 

saying, if there were consistent national standards, would you be 

opposed to the involvement of OSHA beyond training? 

Ms. WINDSOR. OSHA has always been involved to a certain point. 

It is when we are getting overlap instead of uniformity. It is the 

overlapping of the two different agencies. Because OSHA has always been involved on certain, obviously, protective equipment. 

Ms. RICHARDSON. But what Mr. Byrd is saying is that there is 

two totally different skill sets that they bring. 

Ms. WINDSOR. I don’t see that at all. 

Ms. RICHARDSON. You don’t see a difference? 

Ms. WINDSOR. No. 

Ms. RICHARDSON. OK. If you could supply to the committee what 

you see those differences are in writing. 

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Ms. RICHARDSON. Thank you, sir. I yield back. 

Mr. SHUSTER. I thank the gentlelady. 

A question to Ms. Quarterman again on the current status of the 

2010 petition for rulemaking which was made by a number of industry groups regarding procedures and fitness criteria that should 

be used for processing special permits and approvals. Could you let 

us know what the status of that is? 

Ms. QUARTERMAN. I believe it may still be under consideration. 

I don’t have the specifics on where that stands. 

Mr. SHUSTER. Is that something you could get back to us and let 

us know where it stands, where we are in the process? 

Ms. QUARTERMAN. Absolutely. 

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Mr. SHUSTER. And the second, what has changed at the agency? 

In 2004, the analysis was that, based on the cost-benefit analysis, 

they withdrew a rulemaking on the wetlines and—given the low 

risk of it. I understand there is a rulemaking about to be made, a 

proposed rulemaking. What has changed at PHMSA for you to 

take, again, what I perceive and what I think the statistics bear 

out and the cost-benefit analysis bears out, that it is below risk and 

the cost-benefit analysis isn’t there, and it is going to be very expensive when we could be focusing on rollovers. 

Ms. QUARTERMAN. The agency is not just focused on the highestrisk incidents. We have to also be aware of those incidents that are 

low risk but could result in high consequence. We have to be thinking about emerging issues, for example, the explosion of the number of lithium batteries being transported by aircraft. And in this 

instance, whereas the statistics are not great in terms of the number of incidents, there have been incidents. 

And if a school bus full of children were to hit a wetline and 

burn, the analysis would be compelling, I think; and we don’t want 

to have that happen if we can avoid it at the beginning. 

Now, the Department has, as you said, in the past done an analysis, has put this rule out for comment. We have obviously updated 

the rule and tried to consider everything that has happened in the 

intervening years, tried to revise the rules and tried to take the 

current costs into effect. 

We are in the middle of a comment period. The comments are 

open. So everything that is being said here will be obviously fed 

into that process and put into consideration as we go forward with 

the next step in the rulemaking. We are at the beginning of this 

process. 

Mr. SHUSTER. And it certainly would be a terrible, terrible tragedy if that were to happen to a school bus. But from my understanding of what happens with a wetline accident is that a school 

bus couldn’t get underneath a truck, and that would be highly unlikely to happen. 

But you know those are the kinds of things that my concern is 

that we think of these scenarios that could happen. You know, one 

in 300 million, I think, was the number I read before, but, you 

know, very unlikely happening. And we are basing a rulemaking 

that is going to cost an industry millions of dollars. 

And the other side of that coin is we have seen her testimony 

and studies that when you go to retrofit some of these things you 

could have a spark and kill people in the shop that is retrofitting 

them. So I think you really need to be focused on—And you yourself said that rollovers are a big problem and human error, and 

that is why I look at your numbers here. You have rollovers, and 

you have human error. How do you separate those out? Maybe I 

don’t understand how exactly you weighted them and things like 

that, but it seems to me we have got a much bigger problem and 

something we can focus on to spend our time, our effort, and our 

money correcting those problems and trying to address those problems. 

So, again, I would urge you to focus on those issues that are of 

the greatest danger out there on the highways and around this 

country. 

105 

I continue to hear from different members of the panel—I turn 

to Ms. Chapman. Training, you mentioned inconsistency of training 

between States and PHMSA. 

Let me back up. I continue to hear there is a problem with the 

States and with PHMSA, the Federal DOT, and State DOTs and 

other agencies, and there is no consistency on training between the 

States and PHMSA. What are some of the problems that your 

membership has had with inconsistency of training? Because that 

goes a long way in solving the human error problems that we see 

out there. 

Ms. CHAPMAN. Right. Obviously, the regulations are the same for 

everyone, and we want them to be enforced uniformly. But what 

we see is a pretty large variance from State to State on how they 

prioritize the enforcement; and what might seem to be a minor 

problem with, say, load securement in one State is going to be seen 

as a huge problem with a large fine and points against the company in another State. We want to be uniform in our compliance 

with the regulations, but when it is sort of a moving target as far 

as what is going to be considered an issue or how an inspector is 

going to interpret the regulations where they are not real clear, it 

makes it hard for the industry. 

Mr. SHUSTER. The member is recognized. 

Ms. BROWN. First of all, I didn’t get the memo about regulations, 

because we don’t have any increase in regulations in the last 18 

months. We have got enforcement. You know, and I try to work 

balance. I think safety is the most important thing. But an example of when we look at the industry with the wetlands and the response to it, that is an example that I think we need to take a serious look at. 

Rollovers is clearly more serious. And what if the truck rolled 

over onto a school bus? I mean, we can go to the extreme. So I 

think it needs to be balanced as we move forward, and it should 

be based on science. 

But, Ms. Quarterman, we have voiced some concerns about you 

all moving forward with the wetlines and the benefits. We actually—I don’t know whether you went. I went to a shop where they 

were retrofitting. Baltimore? Yeah, we had a hearing in Baltimore. 

And we went to the different shops where they was fixing it, and 

the fix was more dangerous than the problem. So I mean I think 

it should be some balance. 

But let me go to Mr. Byrd. There was a discussion about OSHA 

and DOT. I mean, they have had separate things that they do all 

the time, but OSHA has been primarily responsible for worker 

safety. So now, if we want to get rid of somebody, maybe we should 

get rid of DOT and just have OSHA to handle the whole thing. I 

mean, is that what we are asking for? 

Mr. BYRD. No. No, ma’am, I would not recommend that. 

As I mentioned earlier, I think each agency plays a very important role in providing worker safety for those workers who deal 

with HAZMAT. And as I had mentioned earlier, what they bring 

to the table is not easily interchangeable. You know, DOT has their 

area of expertise, OSHA has their area of expertise, and there are 

no people that I am familiar with that are in the middle that have 

a great deal of expertise in dealing with both issues. I would see 

106 

it would be extremely difficult for DOT to enforce OSHA-type regulations. I think it would cost DOT a ton of money to promulgate 

regulations and to train and hire inspectors to do that type of work. 

Ms. BROWN. I am not supporting that, but I don’t think we 

should start over. 

But you all administer the grants program. 

Mr. BYRD. Yes. 

Ms. BROWN. We have a unique problem in Florida in that I think 

we receive about $6 million—and our Governor turned it back—for 

training of the firefighters. As we move forward with the real ugly 

politics, should we come up with a different way to get that training? Not necessarily going through the States, maybe the local communities or maybe it should be a different kind of way. Because 

one Governor says, yes, we want the training; and then the new 

Governor comes in and says, well, we don’t want to do the training 

of the firefighters and the workers. 

Mr. BYRD. Well, I know in the case of truck drivers our employers provide some training, but the union provides what I think is 

a higher quality training overall, and we provide that directly to 

the rank-and-file truck driver and dock worker. 

Now, what we have had some success in is working with our employers to provide some training, and that has been accomplished 

through cents-per-hour contributions. But the funding that we get 

from the Federal Government I think is extremely important, enabling us to have a further reach in terms of providing high-quality 

training. 

Ms. BROWN. Ms. Quarterman, can you respond to that question 

as to how we are going to provide that training when we have this 

ugly negative politics that is going on in Washington? 

Ms. QUARTERMAN. Whenever anything political is happening, we 

just do the best we can. 

As I mentioned in my opening statement, we are in the process 

of auditing our training program, our grant program, and reassessing the priorities and how it will work going forward in the future. 

If I can just respond to the OSHA issue as well. 

Ms. BROWN. Yes. 

Ms. QUARTERMAN. Let me say that I agree with Mr. Byrd on this 

issue. DOT PHMSA has absolutely no interest in becoming occupational safety and health regulators. Our expertise is in the 

HAZMAT area. 

One of the reasons we are very interested in the loading and unloading issue is, for example, the first quarter of this year there 

were five fatalities, four of which were related to loading and unloading. It is one where we think we can bring expertise in loading 

and unloading of hazardous materials commodities and focus on 

that portion of the operations and try to get people to assess their 

risks and do a better job. But we have no desire really to be in 

charge of occupational safety and health. 

Ms. BROWN. And the last question—and I know my time is up, 

but I want to ask this question. In the last 18 months I have heard 

a lot of rhetoric about additional regulations, but it hasn’t been a 

lot of additional regulations in the last 18 months. We may have 

107 

additional enforcement that did not go on for a period of time. Can 

anyone speak to that additional regulations? 

Ms. QUARTERMAN. Well, I can say that, as a part of the President’s initiative to streamline regulations, we have, within the 

HAZMAT portion of the Pipeline Hazardous Materials Safety Administration, I don’t know, maybe 20 some-odd pages of ideas of 

things that could be streamlined. We had a big meeting at the Department asking questions of constituents what places where they 

thought we could streamline the regulations. I am all in favor of 

that. The regulations are about this thick. I think if we could—obviously, we haven’t gone through them with a fine-tooth comb recently. We need to do that. We need ideas for streamlining the 

regs. 

Ms. BROWN. I am not disagreeing with that. But one of the reasons why we had other hearings and we have had additional enforcement was because the response from the audit general said 

that you needed to because of the safety aspects of it and how it 

was impacting the community. I mean, we are not just doing it for 

any other reasons other than safety. 

Ms. QUARTERMAN. Correct. 

Ms. BROWN. I yield back the balance of my time. 

Mr. SHUSTER. Ms. Quarterman, the time—I am going to just ask 

you one more question and then get you off to your airplane. 

How many different rulemakings are out there that PHMSA is 

looking at? I asked about two of them, I guess. Are there more out 

there that you are looking at? 

Ms. QUARTERMAN. I don’t know how many current rulemakings 

are pending. In terms of major rules, there is the lithium battery 

rule, the loading and unloading rule, and the wetlines rule. Those 

are the ones that I think of as being significant. You know, there 

are always rules in adopting international harmonization, you 

know, things around the edges. But, to me, those are the biggest 

rules we have pending. 

Mr. SHUSTER. Well, I appreciate you coming today, Ms. 

Quarterman. We will let you head out the door. 

And as you are getting ready to head out the door I will just reiterate that I hope we can figure out something on this wetlines 

issue. Because, contrary to what my esteemed colleague from Florida said, you know, that is not an enforcement, that is going to be 

a change in regulatory burden. And also a reminder that across the 

government, maybe not PHMSA so much but the EPA, and again 

across the spectrum of the government, there has been tremendous 

increase in regulatory burden on business. And much of it, in my 

view, is not based on science. It is based on somebody’s response 

to it, either emotional or being something they want to see not 

based on sound science. So I think the economy is getting overheated with that type of regulatory burden. 

So thank you, Ms. Quarterman. I hope you make that plane. 

Does the gentleman from Pennsylvania wish to be recognized for 

questions? 

Mr. MEEHAN. Yes, thank you, Mr. Chairman. I just want to take 

a moment. 

I am very appreciative of the testimony, and, unfortunately, we 

get drawn in numerous directions. So I try to take the time to read 

108 

your testimony so that I am educating myself on a lot of the issues 

you are bringing forward. So I want to thank you for the effort that 

you put in to helping us understand the problems that you are facing and particularly where we are looking at regulations that impact the industry. 

Ms. Windsor, you may be the person to answer this, because this 

is a situation in which I simultaneously sit on Homeland Security 

and deal with a number of issues there; and having a background 

previously in law enforcement, we dealt with a lot of the 

credentialing problems that are associated. 

Can you explain to me just briefly the concern you have with the 

uniformity and duplication in that process? I know that is the kind 

of a thing to an individual trucker or otherwise that can just be another cost or inefficiency; and, obviously, we want to look to find 

ways to streamline this process so that the ends are met, but we 

are not having unrealistic expectations. 

Ms. WINDSOR. And definitely we want our drivers that are hauling HAZMAT to be credentialed properly. But, currently, a truck 

driver will go to their local or State DMV and they are 

fingerprinted there and will apply for a hazardous materials endorsement on their license. Then if they are hauling HAZMAT 

products to a port, they have to get the TWIC card, Transportation 

Worker Identification Credential. In fact, I have one. Even though 

I don’t transport product, when I go to visit our trucks I have to 

have my own. 

And that we are talking where it can be anywhere from the initial HAZMAT endorsement, maybe $100 to $115. Then it is $130 

for the TWIC card. Then many shippers then also want additional 

credentialing. When in fact we are fingerprinting our drivers over 

and over again doing credentialing and background checks. 

We believe there should be one database. That if the TWIC card 

is going to be our Transportation Worker Identification Credential, 

then that should be our card for our credentialing. Right now, it 

becomes so onerous on a truck driver they can spend as much as 

$270 just to be credentialed to be able to even haul product. 

Mr. MEEHAN. Is there a time associated from time to time when 

a trucker is trying to ship materials that they are delayed and held 

up while somebody inspects or checks the identification that they 

have for compliance? 

Ms. WINDSOR. Well, it has been, of course, difficult picking up 

the different cards. Because they can go in and be fingerprinted, 

and maybe they make an appointment. It can be 2 or 3 weeks before the background check returns. 

I have drivers that are HAZMAT and nonHAZMAT. During the 

winter months, those that haul dry bog during the summer, when 

that slows down I can move them into home heating fuels or something of that nature. They have elected not to go through the 

fingerprinting because of the cost and the time it would take for 

them to get their credentialing. They lose the possibility of additional earnings; and, of course, they have made the decision not to 

go through the difficulty of being fingerprinted or the background 

checks. 

109 

Mr. MEEHAN. What are you seeing with respect to States having 

different standards or whether there is any kind of concern about 

nonuniformity? 

Ms. WINDSOR. There is major nonconformity in the States. A disqualifier in one State can be anything from child support to domestic disputes in one State. In another State, it may not even be listed. So it is not even uniformity with the States. That is why we 

feel like it would be better to remove that from the States, because 

you are not having uniformity on who is being fingerprinted. 

Mr. MEEHAN. Is there somebody else from the panel that has a 

perspective on this unique issue? 

OK, Mr. Chairman, thank you. 

Ms. Windsor, if you have other commentary or other evidence 

from the field that would help me understand that issue better I 

would enjoy working with the chairman and seeing if there is some 

way to—— 

Ms. WINDSOR. There was a Safe Trucker Act that was proposed 

back in 2009 which would help to work with this; and, yes, we 

would love to. Thank you. 

Mr. MEEHAN. Thank you. 

Mr. SHUSTER. Does the gentleman yield back? 

Mr. MEEHAN. Yes. My time is up, Mr. Chairman. I thought you 

were going to cut me off anyway. 

Mr. SHUSTER. I would have been happy to yield you more time. 

Mr. Boston, how did the explosive industry become so dependent 

on special permits? I mean, I guess we heard the Administrator say 

there has been a huge increase in the request for special permits, 

and I believe when I had a meeting with her she said it was mainly 

due to the explosives industry. 

Mr. BOSTON. Yes, Chairman Shuster. Special permits are the 

only way that the explosives industry can transport bulk explosives 

such as blasting agents and oxidizers. These types of materials are 

much safer, lower sensitivity and that sort of thing, than packaged 

explosives, high explosives. 

However, the hazardous materials regulations don’t currently 

provide for transportation of these materials by truckload. Special 

permits are a way, as you pointed out, that the hazardous materials regulations can catch up with technology or keep up with 

technology. And, actually, they serve as sort of an ad hoc R&D program whereby industry develops new technology and methods to 

properly and safely handle it and then test it via the special permit 

process and, once completed, look for incorporation into regulations. 

Now, how is—30 years ago, when we began using these trucks 

to transport blasting agents and oxidizers, that was cutting-edge 

technology. As I have said, there are no provisions in the hazardous materials regulations to allow that, so industry had to petition for and receive special permits to do that. 

They have been transporting now under these special permits for 

30 years, and during that 30 years the record of safety has been 

phenomenal. There have been no injuries or fatalities that have resulted from the use of those special permits. Yet those special permits still exist, rather than having been incorporated into the regulations. 

Mr. SHUSTER. And that is bulk explosives versus package. 

110 

Mr. BOSTON. Yes, sir. 

Mr. SHUSTER. The package has much—or they are much more 

highly explosive, and that is something you believe needs to be continued under this process. But maybe we need to figure out a way 

to, as I think you are saying, to incorporate in the regulations 

where bulk explosives are much safer, in fact, no fatalities in 30 

years. We need to change the way we have oversight and regulation on bulk. 

Mr. BOSTON. Yes, sir, that is correct. Understand that the packaged explosives, high explosives, there are provisions already in the 

hazardous material regulations that allow for their transportation. 

Therefore, special permits generally aren’t necessary for that. The 

shortcoming or the weak point is how 95 percent of our explosives 

are transported now, still aren’t covered by the regulations, and so 

we have to use special permits. 

Mr. SHUSTER. Right. So in answer to your question, Mr. Filner, 

I am going for less regulation here because it appears to me that 

the industry has figured out how to ship bulk explosives. 

What is a bulk explosive? Give me a material. 

Mr. BOSTON. An ammonium nitrate emulsion is one. That would 

be a material that has got some ammonium nitrate. Fuel oil, that 

is another. So those are the—— 

Mr. SHUSTER. And package would be dynamite? 

Mr. BOSTON. A package would be dynamite. It might be the perforators that my company offers. Detonators, detonating cord, all of 

those things are high explosives, and they are currently already 

covered by regulation. 

Mr. SHUSTER. And so the bulk explosives we could streamline, reduce the red tape you have to go through to ship. And, again, we 

figured out in the last 30 years how to do it very, very safely. 

Mr. BOSTON. Yes, sir, that is correct. 

Mr. SHUSTER. I appreciate that. 

But they don’t necessarily need one anymore because they figured it out. I mean—no, it is because technology—that is the beauty of technology. You change it, and then all of a sudden things are 

much safer, and you can do without as much regulation and oversight. And that is a good thing. 

Anybody have any questions? 

Mr. FILNER. Thank you, Mr. Chairman, for the courtesy. 

The gentleman from Pennsylvania is very eager to compliment 

the representatives to prevent us from onerous regulation. I would 

just like to compliment that Mr. Byrd is protecting the safety and 

health of our working people. Thank you very much. 

Mr. SHUSTER. And I want to thank all the witnesses and again 

thank the members. This is a fly-in day for us. I appreciate Mr. 

Meehan, Mr. Filner, and others for being here at the hearing today. 

And I appreciate the witnesses for taking the time and help to 

enter into discussion as we move forward on this transportation 

bill. We want to make sure we are doing the right things when it 

comes to HAZMAT and making sure to take into consideration both 

safety and the economic benefits that you provide to the economy 

and the jobs you provide to the economy. So thank you very much. 

And, with that, this hearing is adjourned. 

[Whereupon, at 4:51 p.m., the subcommittee was adjourned.] 

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