II 113th CONGRESS 2d Session S. 2858 IN THE SENATE OF THE UNITED STATES September 18, 2014 Mr. Menendez introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To enhance rail safety and provide for the safe transport of hazardous materials, and for other purposes.

1. Short title This Act may be cited as the Toxics by Rail Accountability and Community Knowledge (TRACK) Act of 2014 . 2. Chemical exposure right-to-know (a) Definitions In this section: (1) Long-lasting or irreversible health consequences The term long-lasting or irreversible health consequences means those health consequences occurring at the exposure threshold defined in the Acute Exposure Guideline Level AEGL–2 or AEGL–3, as established by the National Advisory Committee on Acute Exposure Guideline Levels for Hazardous Substances. (2) Post-accident public health assessment The term post-accident public health assessment means a scientific assessment of the impacts of a hazardous material release on public health made by a qualified entity. (3) Qualified entity The term qualified entity means a Federal, State, or other governmental entity responsible for emergency response, public health, chemical safety or transportation, or environmental protection. (b) Right-To-Know protections Beginning 180 days after the date of the enactment of this Act, railroad carriers that are found to be at fault by an administrative, judicial, or investigatory process for an accident or incident during calendar year 2010 or later that led to an unintended release of hazardous materials shall periodically review any post-accident public health assessments regarding the extent to which individuals exposed to the hazardous material that was released could experience long-lasting or irreversible health consequences, and— (1) inform in a timely manner individuals exposed to the hazardous material of any health information, including information regarding long-lasting or irreversible health consequences, included in such reports; and (2) offer to renegotiate any legal settlements made to individuals impacted by a hazardous material release for which additional information about the potential for long-lasting or irreversible health consequences has been later disclosed in a post-accident public health assessment. (c) Enforcement Any railroad carrier violating subsection (b)(2) or a regulation prescribed pursuant to such subsection shall be liable to the Federal Government for a civil penalty for each violation or for each day the violation continues, as follows: (1) For a railroad carrier that has annual carrier operating revenues that meet the threshold amount for Class I carriers as determined by the Surface Transportation Board under section 1201.1–1 of title 49, Code of Federal Regulations, the penalty shall be not less than $100,000 and not more than $1,000,000. (2) For a railroad carrier that has annual carrier operating revenues that meet the threshold amount for Class II carriers as determined by the Surface Transportation Board under section 1201.1–1 of title 49, Code of Federal Regulations, the penalty shall be not less than $25,000 and not more than $250,000. (3) For a railroad carrier that has annual carrier operating revenues that meet the threshold amount for Class III carriers as determined by the Surface Transportation Board under section 1201.1–1 of title 49, Code of Federal Regulations, the penalty shall be not less than $10,000 and not more than $100,000. 3. Commodity flow transparency Not later than two years after the date of the enactment of this Act, the Secretary of Transportation shall prescribe regulations requiring a railroad carrier transporting a hazardous material to provide first responders, emergency response officials, and law enforcement personnel in the communities through which the hazardous material is transported with accurate and current commodity flow data and assist with development of emergency operations and response plans designed to protect public health and community safety in the event of a railroad accident or incident involving the hazardous material. In prescribing these regulations, the Secretary may consider which hazardous materials or classes of hazardous materials are most relevant to be included within commodity flow information based on factors including the volume of the hazardous material transported and the threat to public health and community safety posed by each hazardous material. 4. Moveable bridge inspection before train movement (a) Procedure required Not later than 18 months after the date of the enactment of this Act, the Secretary of Transportation shall prescribe regulations establishing a procedure for a railroad carrier to permit a train to pass a red signal aspect protecting a moveable bridge. (b) Training and qualifications (1) Training program The procedure established pursuant to subsection (a) shall require a railroad carrier that operates across a moveable bridge to have in place a program to train and qualify employees of the carrier to determine whether a train can safely travel across a moveable bridge when a signal protecting the bridge is displaying a red signal aspect. (2) Required qualifications The railroad carrier shall ensure that only an individual qualified under the railroad carrier's training program is responsible for making a determination regarding whether it is safe for a train to travel across a moveable bridge when a signal protecting the bridge is displaying a red signal aspect. (c) Enforcement Any railroad carrier violating this section or a regulation prescribed in this section shall be liable to the Federal Government for a civil penalty for each violation or for each day the violation continues, as follows: (1) For a railroad carrier that has annual carrier operating revenues that meet the threshold amount for Class I carriers as determined by the Surface Transportation Board under section 1201.1–1 of title 49, Code of Federal Regulations, the penalty shall be not less than $100,000 and not more than $1,000,000. (2) For a railroad carrier that has annual carrier operating revenues that meet the threshold amount for Class II carriers as determined by the Surface Transportation Board under section 1201.1–1 of title 49, Code of Federal Regulations, the penalty shall be not less than $25,000 and not more than $250,000. (3) For a railroad carrier that has annual carrier operating revenues that meet the threshold amount for Class III carriers as determined by the Surface Transportation Board under section 1201.1–1 of title 49, Code of Federal Regulations, the penalty shall be not less than $10,000 and not more than $100,000. 5. Route risk assessment (a) Route risk assessment tools The Secretary of Transportation, in collaboration with the Secretary of Homeland Security and the American Short Line and Regional Railroad Association, shall develop a route risk assessment tool for the use of short line and regional railroad carriers that— (1) addresses any known limitations of the Rail Corridor Risk Management Safety software tool for short line and regional railroad carriers; and (2) allows for safety and security risk assessments to be performed by short line and regional railroad carriers in instances when alternative routes are not available. (b) Route risk assessment audits The Secretary of Transportation, in collaboration with the Secretary of Homeland Security and the American Short Line and Regional Railroad Association, shall implement a program to conduct audits of short line and regional railroads to ensure that proper route risk assessments that identify safety and security vulnerabilities are being performed and are incorporated into a safety management system program. 6. Railroad safety risk reduction program amendments (a) Safety management systems Section 20156(d)(1) of title 49, United States Code, is amended— (1) in subparagraph (A), by striking ; and and inserting a semicolon; (2) in subparagraph (B), by striking the period at the end and inserting ; and ; and (3) by adding at the end the following new subparagraph: (C) the use of safety management systems and their associated key principles, including top-down ownership and policies, analysis of operational incidents and accidents, and continuous evaluation and improvement programs. . (b) Sense of congress It is the sense of Congress that, under the Railroad Safety Risk Reduction Program under section 20156 of title 49, United States Code, the Secretary of Transportation should include within the definition of a railroad carrier that has an inadequate safety performance any railroad carrier that is at fault for an incident, accident, or emergency involving hazardous materials that has led to a fatality or personal injury, an evacuation, or environmental damage within the last five years. 7. First responder right-to-know (a) Real-Time emergency response notification Not later than one year after the date of the enactment of this Act, the Secretary of Transportation shall prescribe regulations— (1) requiring a railroad carrier transporting a hazardous material to have the capability to generate, maintain, retrieve, and promptly deliver accurate and real-time consists that include the identity and location of the hazardous material on the train; (2) requiring a railroad carrier transporting a hazardous material to provide such information promptly to first responders, emergency response officials, and law enforcement personnel in the event of an incident, accident, or emergency, or as required by these entities to protect public health and community safety; and (3) prohibiting a railroad carrier, employee, or agent from withholding, or a railroad carrier from instructing its employees or agents to withhold, a train consist or a real-time train consist from first responders, emergency response officials, and law enforcement personnel in the event of an incident, accident, or emergency involving the transportation of hazardous materials by railroad that threatens public health or safety. (b) Emergency response standardization The Secretary of Transportation, in consultation with railroad carriers, shall ensure that emergency response information carried by train crews transporting hazardous materials is consistent with and is at least as protective as the emergency response guidance provided in the Emergency Response Guidebook issued by the Department of Transportation. (c) Enforcement Any railroad carrier violating subsection (a)(3) or a regulation prescribed under subsection (a)(3) shall be liable to the Federal Government for a civil penalty for each violation or each day the violation continues, as follows: (1) For a railroad carrier that has annual carrier operating revenues that meet the threshold amount for Class I carriers as determined by the Surface Transportation Board under section 1201.1–1 of title 49, Code of Federal Regulations, the penalty shall be not less than $100,000 and not more than $1,000,000. (2) For a railroad carrier that has annual carrier operating revenues that meet the threshold amount for Class II carriers as determined by the Surface Transportation Board under section 1201.1–1 of title 49, Code of Federal Regulations, the penalty shall be not less than $25,000 and not more than $250,000. (3) For a railroad carrier that has annual carrier operating revenues that meet the threshold amount for Class III carriers as determined by the Surface Transportation Board under section 1201.1–1 of title 49, Code of Federal Regulations, the penalty shall be not less than $10,000 and not more than $100,000. 8. Public education Not later than one year after the date of the enactment of this Act, the Secretary of Transportation shall prescribe regulations requiring railroad carriers transporting hazardous materials to develop, implement, and periodically evaluate a public education program for the communities along railroad hazardous materials routes. The public education program may include the following elements: (1) Procedures for reporting the release of a hazardous material. (2) Physical indications of a release of a hazardous material, including a focus on hazardous materials that are most commonly transported in or near a given community. (3) Methods of communication that will be used to alert the community in the event of a railroad incident, accident, or emergency involving a hazardous material. (4) Steps that should be taken by community residents to ensure public health and safety in the event of a hazardous material release. (5) Discussion of possible public health and safety concerns associated with an unintended release of a hazardous material, including a focus on hazardous materials that are most commonly transported in or near a given community. 9. Inflation adjustments The Secretary of Transportation shall issue a statement of agency policy adjusting the penalty schedules for violations outlined in this Act as necessary to account for inflation, each time the Secretary is required by law to review the minimum and maximum civil monetary penalty for inflation under the Federal Civil Penalties Inflation Adjustment Act of 1990 ( Public Law 101–410 ; 28 U.S.C. 2461 note). The Secretary may subject the statement of agency policy to notice and comment, as the Secretary considers appropriate.