II 

109TH CONGRESS 

1ST SESSION S. 1256 

To require the Secretary of Homeland Security to develop regulations regarding the transportation of extremely hazardous materials, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 16, 2005 

Mr. BIDEN introduced the following bill; which was read twice and referred 

to the Committee on Commerce, Science, and Transportation 

A BILL 

To require the Secretary of Homeland Security to develop 

regulations regarding the transportation of extremely 

hazardous materials, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; FINDINGS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Hazardous Materials Vulnerability Reduction Act of 

6 2005’’. 

7 (b) FINDINGS.—Congress makes the following find8 ings: 
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1 (1) Congress has specifically given the Depart2 ment of Homeland Security, working in conjunction 

3 with the Department of Transportation and other 

4 Federal agencies, the primary authority for the secu5 rity of the United States transportation sector, in6 cluding passenger and freight rail. 

7 (2) This authority includes the responsibility to 

8 protect American citizens from terrorist incidents re9 lated to the transport by rail of extremely hazardous 

10 materials. 

11 (3) Federal agencies have determined that haz12 ardous materials can be used as tools of destruction 

13 and terror and that extremely hazardous materials 

14 are particularly vulnerable to sabotage or misuse 

15 during transport. 

16 (4) The Federal Bureau of Investigation and 

17 the Central Intelligence Agency have found evidence 

18 suggesting that chemical tankers used to transport 

19 and store extremely hazardous chemicals have been 

20 targeted by terrorist groups. 

21 (5) Rail shipments of extremely hazardous ma22 terials are often routed through highly attractive 

23 targets and densely populated areas, including with24 in a few miles of the White House and United 

25 States Capitol. 
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1 (6) According to security experts, certain ex2 tremely hazardous materials present a mass casualty 

3 terrorist potential rivaled only by improvised nuclear 

4 devices, certain acts of bioterrorism, and the collapse 

5 of large occupied buildings. 

6 (7) A report by the Chlorine Institute found 

7 that a 90-ton rail tanker, if successfully targeted by 

8 an explosive device, could cause a catastrophic re9 lease of an extremely hazardous material, creating a 

10 toxic cloud 40 miles long and 10 miles wide. 

11 (8) The Environmental Protection Agency esti12 mates that in an urban area a toxic cloud could ex13 tend for 14 miles. 

14 (9) The United States Naval Research Labora15 tories concluded that a toxic plume of this type, cre16 ated while there was a public event on the National 

17 Mall, could kill or injure up to 100,000 people in 

18 less than 30 minutes. 

19 (10) According to security experts, rail ship20 ments of extremely hazardous materials are particu21 larly vulnerable and dangerous, however the Federal 

22 Government has made no material reduction in the 

23 inherent vulnerability of hazardous chemical targets 

24 inside the United States. 
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1 (11) While the safety record related to rail 

2 shipments of hazardous materials is very good, re3 cent accidental releases of extremely hazardous ma4 terials in rural South Carolina and San Antonio, 

5 Texas, demonstrate the fatal danger posed by ex6 tremely hazardous materials. 

7 (12) Security experts have determined that re8 routing these rail shipments is the only way to im9 mediately eliminate this danger in high threat areas, 

10 which currently puts hundreds of thousands of peo11 ple at risk. 

12 (13) Security experts have determined that the 

13 primary benefit of re-routing the shipment of ex14 tremely hazardous materials is a reduction in the 

15 number of people that would be exposed to the dead16 ly impact of the release due to an attack, and the 

17 principal cost would be the additional operating ex18 pense associated with possible increase inhaul for the 

19 shipment of extremely hazardous materials. 

20 (14) Less than 5 percent of all hazardous mate21 rials shipped by rail will meet the definition of ex22 tremely hazardous materials under this Act. 

23 SEC. 2. DEFINITIONS. 

24 In this Act, the following definitions apply: 
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1 (1) EXTREMELY HAZARDOUS MATERIAL.—The 

2 term ‘‘extremely hazardous material’’ means any 

3 chemical, toxin, or other material being shipped or 

4 stored in sufficient quantities to represent an acute 

5 health threat or have a high likelihood of causing in6 juries, casualties, or economic damage if successfully 

7 targeted by a terrorist attack, including materials 

8 that— 

9 (A) are— 

10 (i) toxic by inhalation; 

11 (ii) extremely flammable; or 

12 (iii) highly explosive; 

13 (B) contain high level nuclear waste; or 

14 (C) are otherwise designated by the Sec15 retary as extremely hazardous. 

16 (2) HIGH THREAT CORRIDOR.— 

17 (A) IN GENERAL.—The term ‘‘high threat 

18 corridor’’ means a geographic area that has 

19 been designated by the Secretary as particularly 

20 vulnerable to damage from the release of ex21 tremely hazardous materials, including— 

22 (i) large populations centers; 

23 (ii) areas important to national secu24 rity; 
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1 (iii) areas that terrorists may be par2 ticularly likely to attack; or 

3 (iv) any other area designated by the 

4 Secretary as vulnerable to damage from 

5 the rail shipment or storage of extremely 

6 hazardous materials. 

7 (B) OTHER AREAS.— 

8 (i) IN GENERAL.—Any city that is not 

9 designated as a high threat corridor under 

10 subparagraph (A) may file a petition with 

11 the Secretary to be so designated. 

12 (ii) PROCEDURE.—The Secretary shall 

13 establish, by rule, regulation, or order, pro14 cedures for petitions under clause (i), in15 cluding— 

16 (I) designating the local official 

17 eligible to file a petition; 

18 (II) establishing the criteria a 

19 city shall include in a petition; 

20 (III) allowing a city to submit 

21 evidence supporting its petition; and 

22 (IV) requiring the Secretary to 

23 rule on the petition not later than 60 

24 days after the date of submission of 

25 the petition. 
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1 (iii) NOTICE.—The Secretary’s deci2 sion regarding any petition under clause (i) 

3 shall be communicated to the requesting 

4 city, the Governor of the State in which 

5 the city is located, and the Senators and 

6 Members of the House of Representatives 

7 that represent the State in which the city 

8 is located. 

9 (3) SECRETARY.—The term ‘‘Secretary’’ means 

10 the Secretary of Homeland Security or the Sec11 retary’s designee. 

12 (4) STORAGE.—The term ‘‘storage’’ means any 

13 temporary or long-term storage of extremely haz14 ardous materials in rail tankers or any other me15 dium utilized to transport extremely hazardous ma16 terials by rail. 

17 SEC. 3. REGULATIONS FOR TRANSPORT OF EXTREMELY 

18 HAZARDOUS MATERIALS. 

19 (a) PURPOSES OF REGULATIONS.—The regulations 

20 issued under this section shall establish a national, risk21 based policy for extremely hazardous materials trans22 ported by rail or being stored. To the extent the Secretary 

23 determines appropriate, the regulations issued under this 

24 section shall be consistent with other Federal, State, and 
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1 local regulations and international agreements relating to 

2 shipping or storing extremely hazardous materials. 

3 (b) ISSUANCE OF REGULATIONS.—Not later than 90 

4 days after the date of enactment of this Act, the Secretary 

5 shall issue, after notice and opportunity for public com6 ment, regulations concerning the rail shipment and stor7 age of extremely hazardous materials by owners and oper8 ators of railroads. In developing such regulations, the Sec9 retary shall consult with other Federal, State, and local 

10 government entities, security experts, representatives of 

11 the hazardous materials rail shipping industry, labor 

12 unions representing persons who work with hazardous ma13 terials in the rail shipping industry, and other interested 

14 persons, including private sector interest groups. 

15 (c) REQUIREMENTS.—The regulations issued under 

16 this section shall— 

17 (1) include a list of the high threat corridors 

18 designated by the Secretary; 

19 (2) contain the criteria used by the Secretary to 

20 determine whether an area qualifies as a high threat 

21 corridor; 

22 (3) include a list of extremely hazardous mate23 rials; 

24 (4) establish protocols for owners and operators 

25 of railroads that ship extremely hazardous materials 
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1 regarding notifying all governors, mayors, and other 

2 designated officials and local emergency responders 

3 in a high threat corridor of the quantity and type of 

4 extremely hazardous materials that are transported 

5 by rail through the high threat corridor; 

6 (5) require reports regarding the transport by 

7 railroad of extremely hazardous materials by the 

8 Secretary to local governmental officials designated 

9 by the Secretary, and Local Emergency Planning 

10 Committees, established under the Emergency Plan11 ning and Community Right to Know Act of 1986 

12 (42 U.S.C. 11001 et seq.); 

13 (6) establish protocols for the coordination of 

14 Federal, State, and local law enforcement authorities 

15 in creating a plan to respond to a terrorist attack, 

16 sabotage, or accident involving a rail shipment of ex17 tremely hazardous materials that causes the release 

18 of such materials; 

19 (7) require that any rail shipment containing 

20 extremely hazardous materials be re-routed around 

21 any high threat corridor; and 

22 (8) establish standards for the Secretary to 

23 grant exceptions to the re-routing requirement under 

24 paragraph (7). 

25 (d) HIGH THREAT CORRIDORS.— 
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1 (1) IN GENERAL.—The criteria under sub2 section (c)(2) for determining whether an area quali3 fies as a high threat corridor may be the same cri4 teria used for the distribution of funds under the 

5 Urban Area Security Initiative program. 

6 (2) INITIAL LIST.—If the Secretary is unable to 

7 complete the review necessary to determine which 

8 areas should be designated as high threat corridors 

9 within 90 days after the date of enactment of this 

10 Act, the initial list shall be the cities that receive 

11 funding under the Urban Areas Security Initiative 

12 Program in fiscal year 2004. 

13 (e) EXTREMELY HAZARDOUS MATERIALS LIST.—If 

14 the Secretary is unable to complete the review necessary 

15 to determine which materials should be designated ex16 tremely hazardous materials under subsection (c)(3) with17 in 90 days of the date of enactment of this Act, the initial 

18 list shall include— 

19 (1) explosives classified as Class 1, Division 1.1, 

20 or Class 1, Division 1.2, under section 173.2 of title 

21 49, Code of Federal Regulations, in a quantity 

22 greater than 500 kilograms; 

23 (2) flammable gasses classified as Class 2, Divi24 sion 2.1, under section 173.2 of title 49, Code of 
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1 Federal Regulations, in a quantity greater than 

2 10,000 liters; 

3 (3) poisonous gasses classified as Class 2, Divi4 sion 2.3, under section 173.2 of title 49, Code of 

5 Federal Regulations, that are also assigned to Haz6 ard Zones A or B under section 173.116 of title 49, 

7 Code of Federal Regulations, in a quantity greater 

8 than 500 liters; 

9 (4) poisonous materials, other than gasses, clas10 sified as Class 6, Division 6.1, under section 173.2 

11 of title 49, Code of Federal Regulations, that are 

12 also assigned to Hazard Zones A or B under section 

13 173.116 of title 49, Code of Federal Regulations, in 

14 a quantity greater than 1,000 kilograms; and 

15 (5) anhydrous ammonia classified as Class 2, 

16 Division 2.2, under section 173.2 of title 49, Code 

17 of Federal Regulations, in a quantity greater than 

18 1,000 kilograms. 

19 (f) NOTIFICATION.— 

20 (1) IN GENERAL.—The protocols under sub21 section (c)(4) shall establish the required frequency 

22 of reporting by an owner and operator of a railroad 

23 to the Governors, Mayors, and other designated offi24 cials and local emergency responders in a high 

25 threat corridor. 
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1 (2) REPORTS TO SECRETARY.—The protocols 

2 under subsection (c)(4) shall require owners and op3 erators of railroad to make annual reports to the 

4 Secretary regarding the transportation of extremely 

5 hazardous materials, and to make quarterly updates 

6 if there has been any significant change in the type, 

7 quantity, or frequency of shipments. 

8 (3) CONSIDERATIONS.—In developing protocols 

9 under subsection (c)(4), the Secretary shall consider 

10 both the security needs of the United States and the 

11 interests of State and local governmental officials. 

12 (g) REPORTS.— 

13 (1) FREQUENCY.— 

14 (A) IN GENERAL.—The Secretary shall 

15 make an annual report to local governmental 

16 officials and Local Emergency Planning Com17 mittees under subsection (c)(5). 

18 (B) UPDATES.—If there has been any sig19 nificant change in the type, quantity, or fre20 quency of rail shipments in a geographic area, 

21 the Secretary shall make a quarterly update re22 port to local governmental officials and Local 

23 Emergency Planning Committees in that geo24 graphic area. 
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1 (2) CONTENTS.—Each report made under sub2 section (c)(5) shall incorporate information from the 

3 reports under subsection (c)(4) and shall include— 

4 (A) a good-faith estimate of the total num5 ber of rail cars containing extremely hazardous 

6 materials shipped through or stored in each 

7 metropolitan statistical area; and 

8 (B) if a release from a railcar carrying or 

9 storing extremely hazardous materials is likely 

10 to harm persons or property beyond the prop11 erty of the owner or operator of the railroad, a 

12 risk management plan that provides— 

13 (i) a hazard assessment of the poten14 tial effects of a release of the extremely 

15 hazardous materials, including— 

16 (I) an estimate of the potential 

17 release quantities; and 

18 (II) a determination of the down19 wind effects, including the potential 

20 exposures to affected populations; 

21 (ii) a program to prevent a release of 

22 extremely hazardous materials, including— 

23 (I) security precautions; 

24 (II) monitoring programs; and 
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1 (III) employee training measures 

2 utilized; and 

3 (iii) an emergency response program 

4 that provides for specific actions to be 

5 taken in response to the release of an ex6 tremely hazardous material, including pro7 cedures for informing the public and Fed8 eral, State, and local agencies responsible 

9 for responding to the release of an ex10 tremely hazardous material. 

11 (h) TRANSPORTATION AND STORAGE OF EXTREMELY

12 HAZARDOUS MATERIALS THROUGH HIGH THREAT COR13 RIDORS.— 

14 (1) IN GENERAL.—The standards for the Sec15 retary to grant exceptions under subsection (c)(8) 

16 shall require a finding of special circumstances by 

17 the Secretary, including that— 

18 (A) the shipment originates in or is des19 tined to the high threat corridor; 

20 (B) there is no practical alternate route; 

21 (C) there is an unanticipated, temporary 

22 emergency that threatens the lives of people in 

23 the high threat corridor; or 

24 (D) there would be no harm to persons or 

25 property beyond the property of the owner or 
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1 operator of the railroad in the event of a suc2 cessful terrorist attack on the shipment. 

3 (2) PRACTICAL ALTERNATE ROUTES.—Whether 

4 a shipper must utilize an interchange agreement or 

5 otherwise utilize a system of tracks or facilities 

6 owned by another operator shall not be considered 

7 by the Secretary in determining whether there is a 

8 practical alternate route under paragraph (1)(B). 

9 (3) GRANT OF EXCEPTION.—If the Secretary 

10 grants an exception under subsection (c)(8)— 

11 (A) the extremely hazardous material may 

12 not be stored in the high threat corridor, in13 cluding under a leased track or rail siding 

14 agreement; and 

15 (B) the Secretary shall notify Federal, 

16 State, and local law enforcement and first re17 sponder agencies (including, if applicable, tran18 sit, railroad, or port authority agencies) within 

19 the high threat corridor. 

20 SEC. 4. SAFETY TRAINING. 

21 (a) HOMELAND SECURITY GRANT PROGRAM.— 

22 (1) IN GENERAL.—The Secretary may award 

23 grants to local governments and owners and opera24 tors of railroads to conduct training regarding safety 
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1 procedures for handling and responding to emer2 gencies involving extremely hazardous materials. 

3 (2) USE OF FUNDS.—Grants under this sub4 section may be used to provide training and pur5 chase safety equipment for individuals who— 

6 (A) transport, load, unload, or are other7 wise involved in the shipment of extremely haz8 ardous materials; 

9 (B) would respond to an accident or inci10 dent involving a shipment of extremely haz11 ardous materials; and 

12 (C) would repair transportation equipment 

13 and facilities in the event of such an accident 

14 or incident. 

15 (3) APPLICATION.—A local government or 

16 owner or operator of a railroad desiring a grant 

17 under this subsection shall submit an application at 

18 such time, in such manner, and accompanied by 

19 such information as the Secretary may reasonably 

20 establish. 

21 (4) AUTHORIZATION OF APPROPRIATIONS.— 

22 There are authorized to be appropriated 

23 $100,000,000 to carry out this subsection. 

24 (b) RAILWAY HAZMAT TRAINING PROGRAM.— 
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1 (1) PROGRAM.—Section 5116(j) of title 49, 

2 United States Code, is amended by adding at the 

3 end the following: 

4 ‘‘(6) RAILWAY HAZMAT TRAINING PROGRAM.— 

5 ‘‘(A) In order to further the purposes of 

6 subsection (b), the Secretary of Transportation 

7 shall, subject to the availability of funds, make 

8 grants to national nonprofit employee organiza9 tions with experience in conducting training re10 garding the transportation of hazardous mate11 rials on railways for the purpose of training 

12 railway workers who are likely to discover, wit13 ness, or otherwise identify a release of ex14 tremely hazardous materials and to prevent or 

15 respond appropriately to the incident. 

16 ‘‘(B) The Secretary of Transportation shall 

17 delegate authority for the administration of the 

18 Railway Hazmat Training Program to the Di19 rector of the National Institute of Environ20 mental Health Sciences under subsection (g). In 

21 administering the program under this para22 graph, the Director of the National Institute of 

23 Environmental Health Sciences shall consult 

24 closely with the Secretary of Transportation 

25 and the Secretary of Homeland Security.’’. 
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1 (2) AUTHORIZATION OF APPROPRIATIONS.— 

2 Section 5127 of title 49, United States Code, is 

3 amended by adding at the end the following: 

4 ‘‘(h) RAILWAY HAZMAT TRAINING PROGRAM.—There 

5 are authorized to be appropriated $10,000,000 for each 

6 of fiscal years 2006, 2007, and 2008 to carry out section 

7 5116(j)(6).’’. 

8 SEC. 5. RESEARCH AND DEVELOPMENT. 

9 (a) TRANSPORT.— 

10 (1) IN GENERAL.—Not later than 90 days after 

11 the date of enactment of this Act, the Secretary 

12 shall conduct a study of the benefits and availability 

13 of technology and procedures that may be utilized 

14 to— 

15 (A) reduce the likelihood of a terrorist at16 tack on a rail shipment of extremely hazardous 

17 materials; 

18 (B) reduce the likelihood of a catastrophic 

19 release of extremely hazardous materials in the 

20 event of a terrorist attack; and 

21 (C) enhance the ability of first responders 

22 to respond to a terrorist attack on a rail ship23 ment of extremely hazardous materials and 

24 other required activities in the event of such an 

25 attack. 
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1 (2) MATTERS STUDIED.—The study conducted 

2 under this subsection shall include the evaluation 

3 of— 

4 (A) whether safer alternatives to 90-ton 

5 rail tankers exist; 

6 (B) the feasibility of requiring chemical 

7 shippers to electronically track the movements 

8 of all shipments of extremely hazardous mate9 rials and report this information to the Depart10 ment of Homeland Security on an ongoing basis 

11 as such shipments are transported; and 

12 (C) the feasibility of utilizing finger-print 

13 based access controls for all chemical convey14 ances. 

15 (3) REPORTING.—Not later than 180 days after 

16 the date of enactment of this Act, the Secretary 

17 shall submit a report to Congress describing the 

18 findings of the study conducted under this sub19 section, which shall include recommendations and 

20 cost estimates for securing shipments of extremely 

21 hazardous materials. 

22 (b) PHYSICAL SECURITY.— 

23 (1) IN GENERAL.—Not later than 90 days after 

24 the date of enactment of this Act, the Secretary 

25 shall conduct a study of the physical security meas-
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1 ures available for rail shipments of extremely haz2 ardous materials that will reduce the risk of leakage 

3 or release in the event of a terrorist attack or sabo4 tage. 

5 (2) MATTERS STUDIED.—The study conducted 

6 under this subsection shall consider the use of pas7 sive secondary containment of tanker valves, addi8 tional security force personnel, surveillance tech9 nologies, barriers, decoy rail cars, and methods to 

10 minimize delays during shipping. 

11 (3) REPORTING.—Not later than 180 days after 

12 the date of enactment of this Act, the Secretary 

13 shall submit a report to Congress describing the 

14 findings of the study conducted under this sub15 section, which shall contain recommendations and 

16 cost estimates for securing shipments of extremely 

17 hazardous materials. 

18 (c) LEASED TRACK STORAGE ARRANGEMENTS.— 

19 (1) IN GENERAL.—Not later than 90 days after 

20 enactment of this Act, the Secretary shall conduct a 

21 study of available alternatives to storing extremely 

22 hazardous materials in or on leased track facilities. 

23 (2) MATTERS STUDIED.—The study conducted 

24 under this subsection shall— 
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1 (A) evaluate the extent of the use of leased 

2 track facilities and the security measures that 

3 should be taken to secure leased track facilities; 

4 and 

5 (B) assess means to limit the consequences 

6 of an attack on extremely hazardous materials 

7 stored on leased track facilities to nearby com8 munities. 

9 (3) REPORT.—Not later than 180 days after 

10 the date of enactment of this Act, the Secretary 

11 shall submit a report to Congress describing the 

12 findings of the study conducted under this sub13 section, which shall contain recommendations and 

14 cost estimates for securing shipments of extremely 

15 hazardous materials. 

16 SEC. 6. WHISTLEBLOWER PROTECTION. 

17 (a) PROHIBITION AGAINST DISCRIMINATION.—No 

18 owner or operator of a railroad may discharge or otherwise 

19 discriminate against any employee with respect to com20 pensation, terms, conditions, or privileges of employment 

21 because the employee (or any person acting pursuant to 

22 the request of the employee) provided information to the 

23 Secretary, the Attorney General, or any Federal super24 visory agency regarding a possible violation of any provi25 sion of this Act by the owner or operator of a railroad 
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1 or any director, officer, or employee of an owner or oper2 ator of a railroad. 

3 (b) ENFORCEMENT.—Any employee or former em4 ployee who believes that such employee has been dis5 charged or discriminated against in violation of subsection 

6 (a) may file a civil action in the appropriate United States 

7 district court before the end of the 2-year period beginning 

8 on the date of such discharge or discrimination. 

9 (c) REMEDIES.—If the district court determines that 

10 a violation has occurred, the court may order the owner 

11 or operator of a railroad that committed the violation to— 

12 (1) reinstate the employee to the employee’s 

13 former position; 

14 (2) pay compensatory damages; or 

15 (3) take other appropriate actions to remedy 

16 any past discrimination. 

17 (d) LIMITATION.—The protections of this section 

18 shall not apply to any employee who— 

19 (1) deliberately causes or participates in the al20 leged violation of law or regulation; or 

21 (2) knowingly or recklessly provides substan22 tially false information to the Secretary, the Attor23 ney General, or any Federal supervisory agency. 

24 SEC. 7. PENALTIES. 

25 (a) RIGHT OF ACTION.— 
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1 (1) IN GENERAL.—Any State or local govern2 ment may bring a civil action in a United States dis3 trict court for redress of injuries caused by a viola4 tion of this Act against any person (other than an 

5 individual) who transports, loads, unloads, or is oth6 erwise involved in the shipping of extremely haz7 ardous materials by rail and who violated this Act. 

8 (2) RELIEF.—In an action under paragraph 

9 (1), a State or local government may seek, for each 

10 violation of this Act— 

11 (A) an order for injunctive relief; and 

12 (B) a civil penalty of not more than 

13 $1,000,000. 

14 (b) ADMINISTRATIVE PENALTIES.— 

15 (1) IN GENERAL.—The Secretary may issue an 

16 order imposing an administrative penalty of not 

17 more than $1,000,000 for each failure by a person 

18 (other than an individual) who transports, loads, un19 loads, or is otherwise involved in the shipping of ex20 tremely hazardous materials to comply with this Act. 

21 (2) NOTICE AND HEARING.—Before issuing an 

22 order under paragraph (1), the Secretary shall pro23 vide the person who allegedly violated this Act— 

24 (A) written notice of the proposed order; 

25 and 
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1 (B) the opportunity to request, not later 

2 than 30 days after the date on which the per3 son received the notice, a hearing on the pro4 posed order. 

5 (3) PROCEDURES.—Not later than 90 days 

6 after the date of enactment of this Act, the Sec7 retary shall issue regulations establishing procedures 

8 for administrative hearings and the appropriate re9 view of penalties issued under this subsection, in10 cluding establishing deadlines. 

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