[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1256 Introduced in Senate (IS)]







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.

    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 possible increase inhaul 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 populations 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 railroad 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.
                                 <all>