[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3510 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 3510
To require the Secretary of Homeland Security to develop regulations
regarding the transportation of extremely hazardous materials, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 28, 2005
Mr. Obey introduced the following bill; which was referred to the
Committee on Homeland Security, and in addition to the Committee on
Transportation and Infrastructure, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To require the Secretary of Homeland Security to develop regulations
regarding the transportation of extremely hazardous materials, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; FINDINGS.
(a) Short Title.--This Act may be cited as the ``Hazardous
Materials Vulnerability Reduction Act of 2005''.
(b) Findings.--Congress makes the following findings:
(1) Congress has specifically given the Department of
Homeland Security, working in conjunction with the Department
of Transportation and other Federal agencies, the primary
authority for the security of the United States transportation
sector, including passenger and freight rail.
(2) This authority includes the responsibility to protect
American citizens from terrorist incidents related to the
transport by rail of extremely hazardous materials.
(3) Federal agencies have determined that hazardous
materials can be used as tools of destruction and terror and
that extremely hazardous materials are particularly vulnerable
to sabotage or misuse during transport.
(4) The Federal Bureau of Investigation and the Central
Intelligence Agency have found evidence suggesting that
chemical tankers used to transport and store extremely
hazardous chemicals have been targeted by terrorist groups.
(5) Rail shipments of extremely hazardous materials are
often routed through highly attractive targets and densely
populated areas, including within a few miles of the White
House and United States Capitol.
(6) According to security experts, certain extremely
hazardous materials present a mass casualty terrorist potential
rivaled only by improvised nuclear devices, certain acts of
bioterrorism, and the collapse of large occupied buildings.
(7) A report by the Chlorine Institute found that a 90-ton
rail tanker, if successfully targeted by an explosive device,
could cause a catastrophic release of an extremely hazardous
material, creating a toxic cloud 40 miles long and 10 miles
wide.
(8) The Environmental Protection Agency estimates that in
an urban area a toxic cloud could extend for 14 miles.
(9) The United States Naval Research Laboratories concluded
that a toxic plume of this type, created while there was a
public event on the National Mall, could kill or injure up to
100,000 people in less than 30 minutes.
(10) According to security experts, rail shipments of
extremely hazardous materials are particularly vulnerable and
dangerous, however the Federal Government has made no material
reduction in the inherent vulnerability of hazardous chemical
targets inside the United States.
(11) While the safety record related to rail shipments of
hazardous materials is very good, recent accidental releases of
extremely hazardous materials in rural South Carolina and San
Antonio, Texas, demonstrate the fatal danger posed by extremely
hazardous materials.
(12) Security experts have determined that re-routing these
rail shipments is the only way to immediately eliminate this
danger in high threat areas, which currently puts hundreds of
thousands of people at risk.
(13) Security experts have determined that the primary
benefit of re-routing the shipment of extremely hazardous
materials is a reduction in the number of people that would be
exposed to the deadly impact of the release due to an attack,
and the principal cost would be the additional operating
expense associated with a possible increase in haul for the
shipment of extremely hazardous materials.
(14) Less than 5 percent of all hazardous materials shipped
by rail will meet the definition of extremely hazardous
materials under this Act.
SEC. 2. DEFINITIONS.
In this Act, the following definitions apply:
(1) Extremely hazardous material.--The term ``extremely
hazardous material'' means any chemical, toxin, or other
material being shipped or stored in sufficient quantities to
represent an acute health threat or have a high likelihood of
causing injuries, casualties, or economic damage if
successfully targeted by a terrorist attack, including
materials that--
(A) are--
(i) toxic by inhalation;
(ii) extremely flammable; or
(iii) highly explosive;
(B) contain high level nuclear waste; or
(C) are otherwise designated by the Secretary as
extremely hazardous.
(2) High threat corridor.--
(A) In general.--The term ``high threat corridor''
means a geographic area that has been designated by the
Secretary as particularly vulnerable to damage from the
release of extremely hazardous materials, including--
(i) large population centers;
(ii) areas important to national security;
(iii) areas that terrorists may be
particularly likely to attack; or
(iv) any other area designated by the
Secretary as vulnerable to damage from the rail
shipment or storage of extremely hazardous
materials.
(B) Other areas.--
(i) In general.--Any city that is not
designated as a high threat corridor under
subparagraph (A) may file a petition with the
Secretary to be so designated.
(ii) Procedure.--The Secretary shall
establish, by rule, regulation, or order,
procedures for petitions under clause (i),
including--
(I) designating the local official
eligible to file a petition;
(II) establishing the criteria a
city shall include in a petition;
(III) allowing a city to submit
evidence supporting its petition; and
(IV) requiring the Secretary to
rule on the petition not later than 60
days after the date of submission of
the petition.
(iii) Notice.--The Secretary's decision
regarding any petition under clause (i) shall
be communicated to the requesting city, the
Governor of the State in which the city is
located, and the Senators and Members of the
House of Representatives that represent the
State in which the city is located.
(3) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security or the Secretary's designee.
(4) Storage.--The term ``storage'' means any temporary or
long-term storage of extremely hazardous materials in rail
tankers or any other medium utilized to transport extremely
hazardous materials by rail.
SEC. 3. REGULATIONS FOR TRANSPORT OF EXTREMELY HAZARDOUS MATERIALS.
(a) Purposes of Regulations.--The regulations issued under this
section shall establish a national, risk-based policy for extremely
hazardous materials transported by rail or being stored. To the extent
the Secretary determines appropriate, the regulations issued under this
section shall be consistent with other Federal, State, and local
regulations and international agreements relating to shipping or
storing extremely hazardous materials.
(b) Issuance of Regulations.--Not later than 90 days after the date
of enactment of this Act, the Secretary shall issue, after notice and
opportunity for public comment, regulations concerning the rail
shipment and storage of extremely hazardous materials by owners and
operators of railroads. In developing such regulations, the Secretary
shall consult with other Federal, State, and local government entities,
security experts, representatives of the hazardous materials rail
shipping industry, labor unions representing persons who work with
hazardous materials in the rail shipping industry, and other interested
persons, including private sector interest groups.
(c) Requirements.--The regulations issued under this section
shall--
(1) include a list of the high threat corridors designated
by the Secretary;
(2) contain the criteria used by the Secretary to determine
whether an area qualifies as a high threat corridor;
(3) include a list of extremely hazardous materials;
(4) establish protocols for owners and operators of
railroads that ship extremely hazardous materials regarding
notifying all governors, mayors, and other designated officials
and local emergency responders in a high threat corridor of the
quantity and type of extremely hazardous materials that are
transported by rail through the high threat corridor;
(5) require reports regarding the transport by railroad of
extremely hazardous materials by the Secretary to local
governmental officials designated by the Secretary, and Local
Emergency Planning Committees, established under the Emergency
Planning and Community Right to Know Act of 1986 (42 U.S.C.
11001 et seq.);
(6) establish protocols for the coordination of Federal,
State, and local law enforcement authorities in creating a plan
to respond to a terrorist attack, sabotage, or accident
involving a rail shipment of extremely hazardous materials that
causes the release of such materials;
(7) require that any rail shipment containing extremely
hazardous materials be re-routed around any high threat
corridor; and
(8) establish standards for the Secretary to grant
exceptions to the re-routing requirement under paragraph (7).
(d) High Threat Corridors.--
(1) In general.--The criteria under subsection (c)(2) for
determining whether an area qualifies as a high threat corridor
may be the same criteria used for the distribution of funds
under the Urban Area Security Initiative Program.
(2) Initial list.--If the Secretary is unable to complete
the review necessary to determine which areas should be
designated as high threat corridors within 90 days after the
date of enactment of this Act, the initial list shall be the
cities that receive funding under the Urban Areas Security
Initiative Program in fiscal year 2004.
(e) Extremely Hazardous Materials List.--If the Secretary is unable
to complete the review necessary to determine which materials should be
designated extremely hazardous materials under subsection (c)(3) within
90 days of the date of enactment of this Act, the initial list shall
include--
(1) explosives classified as Class 1, Division 1.1, or
Class 1, Division 1.2, under section 173.2 of title 49, Code of
Federal Regulations, in a quantity greater than 500 kilograms;
(2) flammable gasses classified as Class 2, Division 2.1,
under section 173.2 of title 49, Code of Federal Regulations,
in a quantity greater than 10,000 liters;
(3) poisonous gasses classified as Class 2, Division 2.3,
under section 173.2 of title 49, Code of Federal Regulations,
that are also assigned to Hazard Zones A or B under section
173.116 of title 49, Code of Federal Regulations, in a quantity
greater than 500 liters;
(4) poisonous materials, other than gasses, classified as
Class 6, Division 6.1, under section 173.2 of title 49, Code of
Federal Regulations, that are also assigned to Hazard Zones A
or B under section 173.116 of title 49, Code of Federal
Regulations, in a quantity greater than 1,000 kilograms; and
(5) anhydrous ammonia classified as Class 2, Division 2.2,
under section 173.2 of title 49, Code of Federal Regulations,
in a quantity greater than 1,000 kilograms.
(f) Notification.--
(1) In general.--The protocols under subsection (c)(4)
shall establish the required frequency of reporting by an owner
and operator of a railroad to the Governors, Mayors, and other
designated officials and local emergency responders in a high
threat corridor.
(2) Reports to secretary.--The protocols under subsection
(c)(4) shall require owners and operators of railroads to make
annual reports to the Secretary regarding the transportation of
extremely hazardous materials, and to make quarterly updates if
there has been any significant change in the type, quantity, or
frequency of shipments.
(3) Considerations.--In developing protocols under
subsection (c)(4), the Secretary shall consider both the
security needs of the United States and the interests of State
and local governmental officials.
(g) Reports.--
(1) Frequency.--
(A) In general.--The Secretary shall make an annual
report to local governmental officials and Local
Emergency Planning Committees under subsection (c)(5).
(B) Updates.--If there has been any significant
change in the type, quantity, or frequency of rail
shipments in a geographic area, the Secretary shall
make a quarterly update report to local governmental
officials and Local Emergency Planning Committees in
that geographic area.
(2) Contents.--Each report made under subsection (c)(5)
shall incorporate information from the reports under subsection
(c)(4) and shall include--
(A) a good-faith estimate of the total number of
rail cars containing extremely hazardous materials
shipped through or stored in each metropolitan
statistical area; and
(B) if a release from a railcar carrying or storing
extremely hazardous materials is likely to harm persons
or property beyond the property of the owner or
operator of the railroad, a risk management plan that
provides--
(i) a hazard assessment of the potential
effects of a release of the extremely hazardous
materials, including--
(I) an estimate of the potential
release quantities; and
(II) a determination of the
downwind effects, including the
potential exposures to affected
populations;
(ii) a program to prevent a release of
extremely hazardous materials, including--
(I) security precautions;
(II) monitoring programs; and
(III) employee training measures
utilized; and
(iii) an emergency response program that
provides for specific actions to be taken in
response to the release of an extremely
hazardous material, including procedures for
informing the public and Federal, State, and
local agencies responsible for responding to
the release of an extremely hazardous material.
(h) Transportation and Storage of Extremely Hazardous Materials
Through High Threat Corridors.--
(1) In general.--The standards for the Secretary to grant
exceptions under subsection (c)(8) shall require a finding of
special circumstances by the Secretary, including that--
(A) the shipment originates in or is destined to
the high threat corridor;
(B) there is no practical alternate route;
(C) there is an unanticipated, temporary emergency
that threatens the lives of people in the high threat
corridor; or
(D) there would be no harm to persons or property
beyond the property of the owner or operator of the
railroad in the event of a successful terrorist attack
on the shipment.
(2) Practical alternate routes.--Whether a shipper must
utilize an interchange agreement or otherwise utilize a system
of tracks or facilities owned by another operator shall not be
considered by the Secretary in determining whether there is a
practical alternate route under paragraph (1)(B).
(3) Grant of exception.--If the Secretary grants an
exception under subsection (c)(8)--
(A) the extremely hazardous material may not be
stored in the high threat corridor, including under a
leased track or rail siding agreement; and
(B) the Secretary shall notify Federal, State, and
local law enforcement and first responder agencies
(including, if applicable, transit, railroad, or port
authority agencies) within the high threat corridor.
SEC. 4. SAFETY TRAINING.
(a) Homeland Security Grant Program.--
(1) In general.--The Secretary may award grants to local
governments and owners and operators of railroads to conduct
training regarding safety procedures for handling and
responding to emergencies involving extremely hazardous
materials.
(2) Use of funds.--Grants under this subsection may be used
to provide training and purchase safety equipment for
individuals who--
(A) transport, load, unload, or are otherwise
involved in the shipment of extremely hazardous
materials;
(B) would respond to an accident or incident
involving a shipment of extremely hazardous materials;
and
(C) would repair transportation equipment and
facilities in the event of such an accident or
incident.
(3) Application.--A local government or owner or operator
of a railroad desiring a grant under this subsection shall
submit an application at such time, in such manner, and
accompanied by such information as the Secretary may reasonably
establish.
(4) Authorization of appropriations.--There are authorized
to be appropriated $100,000,000 to carry out this subsection.
(b) Railway Hazmat Training Program.--
(1) Program.--Section 5116(j) of title 49, United States
Code, is amended by adding at the end the following:
``(6) Railway hazmat training program.--
``(A) In order to further the purposes of
subsection (b), the Secretary of Transportation shall,
subject to the availability of funds, make grants to
national nonprofit employee organizations with
experience in conducting training regarding the
transportation of hazardous materials on railways for
the purpose of training railway workers who are likely
to discover, witness, or otherwise identify a release
of extremely hazardous materials and to prevent or
respond appropriately to the incident.
``(B) The Secretary of Transportation shall
delegate authority for the administration of the
Railway Hazmat Training Program to the Director of the
National Institute of Environmental Health Sciences
under subsection (g). In administering the program
under this paragraph, the Director of the National
Institute of Environmental Health Sciences shall
consult closely with the Secretary of Transportation
and the Secretary of Homeland Security.''.
(2) Authorization of appropriations.--Section 5127 of title
49, United States Code, is amended by adding at the end the
following:
``(h) Railway Hazmat Training Program.--There are authorized to be
appropriated $10,000,000 for each of fiscal years 2006, 2007, and 2008
to carry out section 5116(j)(6).''.
SEC. 5. RESEARCH AND DEVELOPMENT.
(a) Transport.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the Secretary shall conduct a study of
the benefits and availability of technology and procedures that
may be utilized to--
(A) reduce the likelihood of a terrorist attack on
a rail shipment of extremely hazardous materials;
(B) reduce the likelihood of a catastrophic release
of extremely hazardous materials in the event of a
terrorist attack; and
(C) enhance the ability of first responders to
respond to a terrorist attack on a rail shipment of
extremely hazardous materials and other required
activities in the event of such an attack.
(2) Matters studied.--The study conducted under this
subsection shall include the evaluation of--
(A) whether safer alternatives to 90-ton rail
tankers exist;
(B) the feasibility of requiring chemical shippers
to electronically track the movements of all shipments
of extremely hazardous materials and report this
information to the Department of Homeland Security on
an ongoing basis as such shipments are transported; and
(C) the feasibility of utilizing finger-print based
access controls for all chemical conveyances.
(3) Reporting.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall submit a report to
Congress describing the findings of the study conducted under
this subsection, which shall include recommendations and cost
estimates for securing shipments of extremely hazardous
materials.
(b) Physical Security.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the Secretary shall conduct a study of
the physical security measures available for rail shipments of
extremely hazardous materials that will reduce the risk of
leakage or release in the event of a terrorist attack or
sabotage.
(2) Matters studied.--The study conducted under this
subsection shall consider the use of passive secondary
containment of tanker valves, additional security force
personnel, surveillance technologies, barriers, decoy rail
cars, and methods to minimize delays during shipping.
(3) Reporting.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall submit a report to
Congress describing the findings of the study conducted under
this subsection, which shall contain recommendations and cost
estimates for securing shipments of extremely hazardous
materials.
(c) Leased Track Storage Arrangements.--
(1) In general.--Not later than 90 days after enactment of
this Act, the Secretary shall conduct a study of available
alternatives to storing extremely hazardous materials in or on
leased track facilities.
(2) Matters studied.--The study conducted under this
subsection shall--
(A) evaluate the extent of the use of leased track
facilities and the security measures that should be
taken to secure leased track facilities; and
(B) assess means to limit the consequences of an
attack on extremely hazardous materials stored on
leased track facilities to nearby communities.
(3) Report.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall submit a report to
Congress describing the findings of the study conducted under
this subsection, which shall contain recommendations and cost
estimates for securing shipments of extremely hazardous
materials.
SEC. 6. WHISTLEBLOWER PROTECTION.
(a) Prohibition Against Discrimination.--No owner or operator of a
railroad may discharge or otherwise discriminate against any employee
with respect to compensation, terms, conditions, or privileges of
employment because the employee (or any person acting pursuant to the
request of the employee) provided information to the Secretary, the
Attorney General, or any Federal supervisory agency regarding a
possible violation of any provision of this Act by the owner or
operator of a railroad or any director, officer, or employee of an
owner or operator of a railroad.
(b) Enforcement.--Any employee or former employee who believes that
such employee has been discharged or discriminated against in violation
of subsection (a) may file a civil action in the appropriate United
States district court before the end of the 2-year period beginning on
the date of such discharge or discrimination.
(c) Remedies.--If the district court determines that a violation
has occurred, the court may order the owner or operator of a railroad
that committed the violation to--
(1) reinstate the employee to the employee's former
position;
(2) pay compensatory damages; or
(3) take other appropriate actions to remedy any past
discrimination.
(d) Limitation.--The protections of this section shall not apply to
any employee who--
(1) deliberately causes or participates in the alleged
violation of law or regulation; or
(2) knowingly or recklessly provides substantially false
information to the Secretary, the Attorney General, or any
Federal supervisory agency.
SEC. 7. PENALTIES.
(a) Right of Action.--
(1) In general.--Any State or local government may bring a
civil action in a United States district court for redress of
injuries caused by a violation of this Act against any person
(other than an individual) who transports, loads, unloads, or
is otherwise involved in the shipping of extremely hazardous
materials by rail and who violated this Act.
(2) Relief.--In an action under paragraph (1), a State or
local government may seek, for each violation of this Act--
(A) an order for injunctive relief; and
(B) a civil penalty of not more than $1,000,000.
(b) Administrative Penalties.--
(1) In general.--The Secretary may issue an order imposing
an administrative penalty of not more than $1,000,000 for each
failure by a person (other than an individual) who transports,
loads, unloads, or is otherwise involved in the shipping of
extremely hazardous materials to comply with this Act.
(2) Notice and hearing.--Before issuing an order under
paragraph (1), the Secretary shall provide the person who
allegedly violated this Act--
(A) written notice of the proposed order; and
(B) the opportunity to request, not later than 30
days after the date on which the person received the
notice, a hearing on the proposed order.
(3) Procedures.--Not later than 90 days after the date of
enactment of this Act, the Secretary shall issue regulations
establishing procedures for administrative hearings and the
appropriate review of penalties issued under this subsection,
including establishing deadlines.
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