[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
      CURRENT ISSUES IN RAIL TRANSPORTATION OF HAZARDOUS MATERIALS

=======================================================================

                                (109-78)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON

                               RAILROADS

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 13, 2006

                               __________

                       Printed for the use of the
             Committee on Transportation and Infrastructure



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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                      DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-    JAMES L. OBERSTAR, Minnesota
Chair                                NICK J. RAHALL, II, West Virginia
SHERWOOD L. BOEHLERT, New York       PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina         JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee       ELEANOR HOLMES NORTON, District of 
WAYNE T. GILCHREST, Maryland         Columbia
JOHN L. MICA, Florida                JERROLD NADLER, New York
PETER HOEKSTRA, Michigan             CORRINE BROWN, Florida
VERNON J. EHLERS, Michigan           BOB FILNER, California
SPENCER BACHUS, Alabama              EDDIE BERNICE JOHNSON, Texas
STEVEN C. LaTOURETTE, Ohio           GENE TAYLOR, Mississippi
SUE W. KELLY, New York               JUANITA MILLENDER-McDONALD, 
RICHARD H. BAKER, Louisiana          California
ROBERT W. NEY, Ohio                  ELIJAH E. CUMMINGS, Maryland
FRANK A. LoBIONDO, New Jersey        EARL BLUMENAUER, Oregon
JERRY MORAN, Kansas                  ELLEN O. TAUSCHER, California
GARY G. MILLER, California           BILL PASCRELL, Jr., New Jersey
ROBIN HAYES, North Carolina          LEONARD L. BOSWELL, Iowa
ROB SIMMONS, Connecticut             TIM HOLDEN, Pennsylvania
HENRY E. BROWN, Jr., South Carolina  BRIAN BAIRD, Washington
TIMOTHY V. JOHNSON, Illinois         SHELLEY BERKLEY, Nevada
TODD RUSSELL PLATTS, Pennsylvania    JIM MATHESON, Utah
SAM GRAVES, Missouri                 MICHAEL M. HONDA, California
MARK R. KENNEDY, Minnesota           RICK LARSEN, Washington
BILL SHUSTER, Pennsylvania           MICHAEL E. CAPUANO, Massachusetts
JOHN BOOZMAN, Arkansas               ANTHONY D. WEINER, New York
JIM GERLACH, Pennsylvania            JULIA CARSON, Indiana
MARIO DIAZ-BALART, Florida           TIMOTHY H. BISHOP, New York
JON C. PORTER, Nevada                MICHAEL H. MICHAUD, Maine
TOM OSBORNE, Nebraska                LINCOLN DAVIS, Tennessee
KENNY MARCHANT, Texas                BEN CHANDLER, Kentucky
MICHAEL E. SODREL, Indiana           BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania        RUSS CARNAHAN, Missouri
TED POE, Texas                       ALLYSON Y. SCHWARTZ, Pennsylvania
DAVID G. REICHERT, Washington        JOHN T. SALAZAR, Colorado
CONNIE MACK, Florida                 JOHN BARROW, Georgia
JOHN R. `RANDY' KUHL, Jr., New York
LUIS G. FORTUNO, Puerto Rico
LYNN A. WESTMORELAND, Georgia
CHARLES W. BOUSTANY, Jr., Louisiana
JEAN SCHMIDT, Ohio

                                  (ii)



                       SUBCOMMITTEE ON RAILROADS

                  STEVEN C. LaTOURETTE, Ohio, Chairman

THOMAS E. PETRI, Wisconsin           CORRINE BROWN, Florida
SHERWOOD L. BOEHLERT, New York       NICK J. RAHALL II, West Virginia
JOHN L. MICA, Florida                JERROLD NADLER, New York
SPENCER BACHUS, Alabama              BOB FILNER, California
JERRY MORAN, Kansas                  ELIJAH E. CUMMINGS, Maryland
GARY G. MILLER, California           EARL BLUMENAUER, Oregon
ROB SIMMONS, Connecticut             LEONARD L. BOSWELL, Iowa
TODD RUSSELL PLATTS, Pennsylvania    JULIA CARSON, Indiana
SAM GRAVES, Missouri                 PETER A. DeFAZIO, Oregon
JON PORTER, Nevada                   JERRY F. COSTELLO, Illinois
TOM OSBORNE, Nebraska                EDDIE BERNICE JOHNSON, Texas
MICHAEL E. SODREL, Indiana           JOHN BARROW, Georgia
LYNN A. WESTMORELND, Georgia, Vice-  JAMES L. OBERSTAR, Minnesota
Chair                                  (ex officio)
DON YOUNG, Alaska
  (ex officio)

                                 (iii)

                                CONTENTS

                               TESTIMONY

                                                                   Page
 Beardsley, James R., Managing Director, National Rail 
  Transportation Practice Aon Risk Services, Inc., accompanied by 
  Deborah Bates, Vice President and Complex Casualty Broker, 
  National Rail Transportation Practice Aon Risk Services, Inc...    44
 Bell, Steven, Battalion Chief, Augusta Fire Department..........    44
 Boardman, Hon. Joseph, Administrator, Federal Railroad 
  Administration.................................................    10
 Chipkevich, Robert, Director, Office of Rail, Pipeline and 
  Hazardous Materials Investigation, National Transportation 
  Safety Board...................................................    10
 Durbin, Martin, Managing Director, Federal Affairs, American 
  Chemistry Council..............................................    44
 Hamberger, Edward, President and Executive Officer, Association 
  of American Railroads..........................................    27
 Mann, Lawrence M., American Trial Lawyers Association...........    44
 Pomeroy, Hon. Earl, a Representative in Congress from North 
  Dakota.........................................................     6
 Pontolillo, Thomas, Director of Regulatory Affairs, Brotherhood 
  of Locomotive Engineers........................................    27
 Simpson, Thomas D., Executive Director-Washington, Railway 
  Supply Institute...............................................    27
 Timmons, Richard F., President, American Short Line and Regional 
  Railroad Association...........................................    27

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Berkley, Hon. Shelley, of Nevada.................................    66
Brown, Hon. Corrine, of Florida..................................    80
Cummings, Hon. Elijah E., of Maryland............................    94
Johnson, Hon. Eddie Bernice, of Texas............................   132
Oberstar, James L. of Minnesota..................................   143
Porter, Hon. Jon, of Nevada......................................   160
Schmidt, Hon. Jean, of Ohio......................................   161
Young, Hon. Don, of Alaska.......................................   172

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

 Beardsley, James R..............................................    57
 Bell, Steven....................................................    63
 Boardman, Hon. Joseph...........................................    68
 Chipkevich, Robert..............................................    86
 Durbin, Martin..................................................   100
 Hamberger, Edward...............................................   106
 Mann, Lawrence M................................................   137
 Pontolillo, Thomas..............................................   149
 Simpson, Thomas D...............................................   162
 Timmons, Richard F..............................................   169

                       SUBMISSIONS FOR THE RECORD

 Chipkevich, Robert, Director, Office of Rail, Pipeline and 
  Hazardous Materials Investigation, National Transportation 
  Safety Board, responses to questions from Representative 
  Johnson of Texas...............................................    91
 Hamberger, Edward, President and Executive Officer, Association 
  of American Railroads, statement of Charles W. Moorman, 
  Chairman, President and Chief Executive Officer, Norfolk 
  Southern Corporation...........................................   127

                        ADDITIONS TO THE RECORD

National Corn Growers Association, Gerald Tumbleson, President, 
  letter, July 7, 2006...........................................   175
Fertilizer Institute, Ford B. West, President, letter, June 21, 
  2006, and statement, Joe Giesler, Terra Industies, Inc., Sioux 
  City, Iowa.....................................................   177
McGregor Company, Fred Morscheck, Colfax, Washington, statement..   183
Norfolk Southern Corporation, Hazardous Materials Training:

  Switching and Train Placement Charts...........................   189
  Hazardous Materials Training, Norfolk Southern Training Center, 
    McDonough, Georgia, charts...................................   201
  Hazardous Materials Rules, Eastern Code, effective November 11, 
    2001.........................................................   275


      CURRENT ISSUES IN RAIL TRANSPORTATION OF HAZARDOUS MATERIALS

                              ----------                              


                         Tuesday, June 13, 2006

        House of Representatives, Committee on 
            Transportation and Infrastructure, Subcommittee 
            on Railroads, Washington, D.C.
    The subcommittee met, pursuant to call, at 10:00 a.m., in 
room 2167, Rayburn House Office Building, Honorable Steven C. 
LaTourette [Chairman of the subcommittee] presiding.
    Mr. LaTourette. Good morning. The hearing of the Railroad 
Subcommittee will come to order. Today's hearing is on the 
subject of the transportation of hazardous materials, a class 
of substances ranging from nontoxic materials, such as 
comprised nitrogen, to highly toxic gases, such as chlorine.
    Most hazardous materials in the United States are 
transported by rail and the primary reason is safety. Over the 
years, our Nation's rail industry has had an admirable safety 
record and the railroads are constantly working to reduce the 
likelihood of accidents. Railroad tank cars are robustly 
designed and have been crash tested to minimize the possibility 
of an accidental release. And most importantly, railroad 
employees receive extensive safety training, which is the key 
to operating a safe system.
    There is one other reason why shippers prefer to move 
hazardous materials by rail, a reason that is little known to 
the general public. Many people are surprised to learn that 
railroads have no choice in the matter; they are required by 
law to ship any and all hazardous materials at the request of 
any shipper. This is known, of course, as the common carrier 
obligation.
    The railroads, of course, purchase insurance to mitigate 
the financial risk of carrying hazardous material, but this 
coverage is both expensive and limited in availability. 
According to the Association of American Railroads, highly 
hazardous commodities constitute only 0.3 percent of total 
carloads, but account for 50 percent of the railroads' total 
insurance cost. Due to the expense and lack of available 
coverage, most railroads are only able to ensure a fraction of 
their net worth. For a smaller carrier, a single hazmat 
accident force the company into bankruptcy.
    This is why we wanted to explore new ways of handling the 
risk exposure for highly hazardous commodities. Liability for 
accident involving nuclear material is already limited by the 
Price-Anderson Act. Perhaps a similar system should be 
established for hazmat. Other alternatives might be a Federal 
liability compensation fund, a national wrap-up insurance 
program, or perhaps even a cap.
    Hazardous materials are critical to the operation of many 
industries, for example, the fertilizer used by our farmer 
contains ammonia, and the plastic in your children's toys have 
been made from liquid plastic resins. These commodities are 
both shipped by rail. Many water treatment plants use chlorine 
to purify drinking water or decontaminate sewage. Again, 
chlorine moves almost exclusively by railroad tank car.
    While we must remember that the shipment and use of 
hazardous materials is not without risk, in the past several 
years we have had a number of tragic accidents where railroad 
employees and local residents were injured or killed in hazmat 
incidents. While I favor taking all reasonable steps to reduce 
the risk to the public, I want to make it clear that I do not 
think that allowing municipalities to reroute trains is a good 
idea. The rail system is not as extensive as a highway system, 
and diverting a train from one urban area would just as likely 
send it through a number of other urban areas. The routing of 
trains is best handled at the national, not local, level.
    There is no railroad beltway bypassing Washington, and the 
cost of constructing such a track would be cost-prohibitive. 
Rerouting over existing tracks would force shipments to travel 
hundreds of additional miles through dozens of communities. In 
some cases, hazmat trains would be forced to use lesser quality 
tracks through more difficult terrain, and rerouting would also 
cause additional congestion on a national rail system already 
strained to capacity. In the end, the disruption caused by 
rerouting trains might force more hazardous cargo onto our 
highway system, a result that is in no one's best interest.
    I believe that as far as hazardous cargo is concerned, the 
best route is the shortest route. We need to encourage 
railroads to work together to ensure that hazardous commodities 
are shipped as directly as possible, whether over the 
railroad's own tracks or those owned by another carrier. I hope 
that the Association of American Railroads will discuss this 
issue today in their testimony.
    At today's hearing we also want to learn what we are doing 
to reduce the risk to railroad employees and people living near 
the tracks, and what we need to do to prevent future tragedies. 
In the end, we all benefit from keeping hazardous cargo off the 
road and on a safe, efficient rail system.
    And before yielding to Ms. Brown, I want to ask unanimous 
consent to allow 30 days for members to revise and extend their 
remarks, and to permit the submission of additional statements 
and materials by witnesses and members. Without objection, so 
ordered.
    It is now my pleasure to yield to our distinguished ranking 
member, Ms. Brown, for any opening remarks.
    Ms. Brown. Thank you, Mr. Chairman, for holding this 
important hearing. I appreciate the work that you have 
undertaken to discuss in a public forum the safety of rail 
transportation of hazardous material.
    According to the Department of Transportation, rail 
accidents involving hazardous materials are decreasing. That is 
the good news. Unfortunately, the bad news is that fatalities 
increased in 2005. The major injuries resulting from rail 
transportation of hazardous materials are the highest amongst 
all modes of transportation in each of the last ten years.
    The accidents in South Carolina, Texas, and North Carolina, 
and the rail bombings in Madrid and London are a stark reminder 
to this Congress that we need to do all we can to strengthen 
rail safety. We need to make sure that our laws and regulations 
are effective and that they are being enforced; that we are 
addressing the right problems. Most importantly, we need to 
make sure our communities, our first responders and our rail 
workers are safe.
    I believe a good start would be reauthorizing the Federal 
Railroad Administration.
    The NTSB has made some excellent recommendations in their 
accident report, including strengthening hours of service, 
improving worker training, reduce speeds in populated 
communities, positioning tanker cars to reduce vulnerability, 
providing advance notice to switch operators, workers, and 
providing train crew with proper emergency equipment.
    I do understand the pressures being faced by the rail 
industry, but I am very concerned with any discussion that 
would reduce the scope of the common carrier's obligation or 
limit an individual's access to fair compensation in an 
accident. The common carrier obligation needs to be taken very 
seriously by both the railroad and this Committee. The Federal 
Government gave the rail industry the land, the resources, and 
the equipment to build the Nation's railroad, and I believe it 
is only fair that the railroads fulfill their obligations to 
serve the public.
    There is no question in my mind that the railroad, chemical 
companies, and regulating agencies need to work together to 
come up with a fair and equitable solution to this problem that 
protects both the interest of the railroads and the safety of 
the American public. Before I consider any solutions to this 
issue, I would like to see some progress beyond just research 
and development of new technologies to make rail operations 
safer, and I would like the FRA and the railroad to start with 
the NTSB recommendation, at the very least.
    Mr. Chairman, I look forward to hearing from our 
distinguished panelists.
    Also, Mr. Chairman, I ask unanimous consent for 
Congresswoman Norton to sit and ask questions.
    Mr. LaTourette. Without objection.
    Ms. Brown. Thank you.
    Mr. LaTourette. I thank the gentlelady.
    Mr. Simmons?
    Mr. Simmons. Thank you, Mr. Chairman, for holding this 
important hearing.
    As you know, I serve on the Homeland Security Committee, 
and one of the important issues for that committee is to study 
rail safety. Our particular focus is rail safety from the 
standpoint of a terrorist attack, but we all know that there 
are broader safety issues involving freight rail, and I think 
it is important that we have this opportunity to hear witnesses 
and to question them on those broader issuers.
    So I thank you and the Ranking Member for having this 
hearing, and I yield back.
    Mr. LaTourette. I thank you, Mr. Simmons.
    Mr. DeFazio?
    Mr. DeFazio. I will pass, thank you, Mr. Chairman.
    Mr. LaTourette. Mr. Boswell?
    Mr. Boswell. Nothing at this time, Mr. Chairman.
    Mr. LaTourette. Mr. Barrow.
    Mr. Barrow. Thank you, Mr. Chairman. The most meaningful 
thing, the most meaningful statement I can make that is going 
to come in the testimony of my friend and witness, Mr. Steven 
Bell, who is battalion chief of the hazmat crew that actually 
responded to the incident in Graniteville, South Carolina. So 
the sooner I shut up, the sooner he can heard. So I am going to 
yield back the balance of my time so we can get to him sooner, 
rather than later.
    Mr. LaTourette. I thank the gentleman.
    Mr. Osborne, any opening remarks?
    Mr. Osborne. No, thank you, Mr. Chairman.
    Mr. LaTourette. Ms. Norton.
    Ms. Norton. Thank you very much, Mr. Chairman. I appreciate 
the opportunity to sit in, as a very special situation has 
arisen involving precisely the issues that are under 
investigation here, and I want to thank you, Mr. Chairman.
    This is the first hearing I know in this Congress that has 
looked closely at what is really a remarkably changed 
situation, unfair to all concerned; certainly to the common 
carriers, who have to take everything that is presented to 
them, and to those who live in the many neighborhoods 
throughout the Country through which these railroads go. And 
make no mistake about it, there is no major metropolis in the 
United States that does not have hazmat going through it every 
day, and that is because that is the way we live.
    These materials start out as toxic. They are often used to 
make quite benign goods that we all need and use. So this 
hearing is a real public service, but it is about a very 
controversial issue. Just two and a half blocks from here is 
where some hazmat travels, we believe on a daily basis, 
although that information has really not been available to us.
    A scientific study has been done about the effects of an 
explosion within this region. It is truly frightening to have 
that presentation made to me and to others in this region, 
where toxic fumes could go for as much as 20 miles and, 
depending upon the nature of the substance, could have either 
consequences of death within an hour to making people very sick 
and taking longer to die.
    Remember, we are talking about a mixture of many different 
kinds of substances throughout the United States: chlorine, 
ammonia, hyperchloric and sulfuric acid, and substances that 
none of us can pronounce because they are being invented every 
day. What we do know is that, because of our science, we are 
able to invent increasingly functional but often increasingly 
benign substances as well.
    Now, I also am a member of the Homeland Security Committee. 
You would think that that is where today's hearing would be 
held. The issues we are describing are more likely to occur 
where they have already occurred--in South Carolina, in North 
Dakota--through an accident. It is the same thing. Increasingly 
toxic materials, no guidance to the railroads, no guidance to 
communities as how to handle this situation. Remember, when you 
put terrorist threats and risks on top of the accident risk, 
you really do have, if you will forgive me, a volatile 
situation.
    I think what we have got to do is find a situation that is 
fair to all. To show you how pathetic this can be, Mr. 
Chairman, a city council passes a law to forbid these trains 
from going through the District of Columbia. Well, the fact is 
they go through Maryland and Virginia as well. And, you know, 
immediately you see an interstate commerce problem, a problem 
begging for Federal intervention.
    The judge, however, asks to see this study. The judge, when 
he sees the study, initially refuses to issue an injunction, 
despite the interstate commerce implications. And there the 
suits stood for a very long time, until the Administration 
intervened, Mr. Chairman, to preempt the D.C. law, the Federal 
Motor Carrier Safety Administration.
    Now, listen to this. They preempted the city council. That 
is the easy part. This hearing is about the Federal 
responsibility to come forward with a solution that is fair to 
all concerned. And let us be clear, we are talking about 
millions of Americans who live close to where these substances 
go.
    The judge tried to broker a settlement because he saw in 
camera--that is to say, he saw off the record--what the 
possibilities could be, and he was so frightened, he was not 
going to take it on himself to issue an injunction. If that 
doesn't tell us we have a problem before this Committee, yes, 
and it is a difficult problem.
    The problem that D.C. confronted was something that also 
was not a solution. They simply wanted the trains rerouted. 
Well, Mr. Chairman, you know what? The tracks are where they 
are. So the notion of just picking up the trains and saying you 
don't go there anymore is not a solution to this problem. It 
may be that we are talking about the Nation's capital and you 
are talking about all our monument and communities of three 
million people you may want to do some rerouting. And CSX, the 
railroad involved, has said that it has done some rerouting. We 
are not sure because no one has that information.
    But the fact is that is not the solution for the Country. 
Solution of the issues that are before this Committee in part, 
is there anything we can do without so regulating a common 
carrier that they can't carry anymore, in which case we have a 
problem with everybody else? And there is the notion of what it 
is that communities can do, given the fact that the tracks were 
laid decades ago to protect themselves, and the kind of 
guidance that should be offered.
    So, Mr. Chairman, I hope that our Subcommittee, working 
with the Homeland Security Committee, will come forward with 
something that will instill the confidence of the American 
people that we are doing something about this. I want you to 
know that once the city council brought its suits, then we had 
people all over the United States writing to us saying can we 
do something similar. We cannot leave this to individual 
jurisdictions.
    First of all, they rightly have no jurisdiction. And if 
they don't, then the question is who. You are looking at who: 
us. And then the fact that it is a hard issue, because we have 
got keep things going and we have got to protect neighborhoods, 
is no excuse for not working with the industry and working with 
the communities to come forward with a solution.
    I thank you very much, Mr. Chairman.
    Mr. LaTourette. I thank the gentlelady very much.
    And I am advised Mr. Cummings doesn't have any opening 
remarks.
    Mr. Sodrel, is there anything you want to say?
    Mr. Sodrel. No, I don't have any opening statement. Thank 
you, Mr. Chairman.
    Mr. LaTourette. I thank you very much.
    Our first witness this morning is our distinguished 
colleague from North Dakota, Congressman Pomeroy.
    Congressman, we thank you for coming very much. We assume 
you are going to talk to us about your experience up in Minot, 
North Dakota. Thank you for your busy schedule, and we look 
forward to hearing from you.

 TESTIMONY OF HON. EARL POMEROY, AN AT LARGE REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF NORTH DAKOTA

    Mr. Pomeroy. Thank you, Mr. Chairman. I will be brief. I 
know that this Committee is wrestling, as you indicated in your 
opening statement, with the national need to transport 
hazardous material and the inevitability of rail playing a big 
role in the transportation of hazardous materials.
    A facet of this question, of course, is the recourse 
available to individuals that are harmed as a result of a 
railroad's negligence in the transporting of those materials. 
And I certainly don't want that important aspect of this public 
policy issue to be lost. That is why I believe the incident in 
Minot is something you need to consider, and the clear status 
of the law relative to those victims is also something you need 
to consider in your deliberations. I so appreciate your 
allowing me to visit with you briefly this morning.
    In the dead of winter, in the dead of night, a rail car 
derailed just outside of Minot, North Dakota--a city of about 
40,000. When I say dead of winter, it was late January and the 
temperature was well below zero. It was about 2:00 o'clock in 
the morning. People were buttoned up in their homes and that 
was a huge blessing, because the derailment caused the rupture 
of seven tank cars of anhydrous ammonia, and a vast poisonous 
cloud--a thick fog moved over a residential area and ultimately 
over the city itself before dissipating.
    Unfortunately, it hung in the low spots longer, and in 
these residential areas there was enormous confusion. The train 
derailment, in rupturing these cars, actually caused one of 
them to fly more than 1,000 feet through the air and tore off 
the front end of a bedroom. If the couple in that bedroom had 
gotten up to look at the window when they heard this enormous 
crash, they would have been killed. Fortunately, they stayed in 
their bed. But we did lose a life. An individual trying to get 
out of there, not being able to see anything, got out of his 
vehicle and was overcome by this poisonous cloud.
    Many individuals who went outside after the derailment will 
suffer permanent physical scarring, let alone the psychological 
horror. It also took down the electrical lines. They were 
totally without lights. And under the present system of 
emergency broadcast, as they turned on the radio to find out 
what in the world was going on, they got soft rock, classic 
rock, all night talk shows, and no information in terms of the 
deadly event that was unfolding in their very neighborhood.
    In 2002, the National Transportation Safety Board released 
an investigative report into the incident and found nearly 
2,000 defects along the Canadian Pacific rail line in North 
Dakota. Now, in the ensuing litigation there was a very 
important ruling, a stunning ruling that came down just in 
March of this year. A Federal District Court judge in North 
Dakota dismissed the claims of several victims of the Minot 
derailment. He found that under the Federal Railroad Safety 
Act, which contained a clause stating States can only enforce 
an additional or more stringent law under limited 
circumstances, that State tort actions were similarly barred 
and that, therefore, these people had no recourse under State 
law.
    The judge ultimately ruled--and this is against 30 years of 
judicial precedence, precedence including rail crossing 
litigation that each of us would have had in our districts--
that this portion of the Federal Rail Safety Act preempted all 
State tort claims. With this ruling and the absence of remedies 
in the Federal Railroad Safety Act, the Minot derailment 
victims were left without any remedy for their injuries.
    Litigation continues on this case, but if the judge's 
ruling is permitted to stand, these individuals will have no 
recourse for their injuries.
    What is presented before you, seems to me, are three 
options: one, no recourse for innocent individuals harmed by 
virtue of the negligent transportation of hazardous materials 
by railroad. I think we would all agree that is unacceptable. 
People ought to have recourse for damages due to a negligent 
act.
    The other two options are you can either leave the 
responsibility with the railroads and allow them to price in 
the cost of insurance and the cost of these recoveries into 
what they charge for transporting these hazardous products, or 
you can embark on some new program that puts Federal taxpayers 
on the hook for compensating innocent victims.
    Innocent victims harmed; railroads price the cost of 
covering the cost of that compensation or taxpayers take it 
over. Those are your choices. I believe this responsibility is 
most appropriately borne by the rail industry. But I know that 
in your deliberations you will work this through.
    What I hope you will remember is that innocent people can 
get hurt or killed due to not just the hazardous material, but 
the negligent transport of that material, as the National 
Transportation Board found relative to Canadian Pacific in 
Minot, North Dakota. What do we do for those victims? I believe 
that we need to clarify the status of things in light of this 
Federal district court in North Dakota, and I wish this 
Committee its very best in its deliberations.
    I would be happy to take any questions, Mr. Chairman.
    Mr. LaTourette. Well, thank you very much, Mr. Pomeroy.
    Does anyone have any questions of the Congressman before he 
goes with our thanks? The gentlelady from Florida.
    Ms. Brown. Thank you.
    I appreciate all the work that you have done on behalf of 
the people in North Dakota in the Minot accident. I agree with 
you, I don't believe that Congress ever intended for the 
Federal Railroad Safety Act to prevent individual injuries in 
accidents from receiving just compensation for their injuries. 
It is my hope that Congress can ratify this situation. And 
given your background before you came to Congress, what do you 
think about some kind of national insurance for this kind of 
situation and some of the other problems we have experienced 
with the------
    Mr. Pomeroy. I thank the Ranking Member for her point. It 
seems incredible after all these literally decades of 
litigation against railroads, we have all had rail crossing 
cases in our districts, that suddenly a judge would say, no, 
railroads are not responsible. Unique to industries operating 
in this Country, railroads are not responsible for their 
negligent acts. That is an untenable result and we have got to 
do something about that.
    My own thought is that rail companies, like any other 
company, ought to have the incentive to avoid negligent acts 
that civil liability produces. If you do something wrong and 
you harm somebody, you are going to have to pay for it, so you 
try to run your operations as safely as you possibly can. I 
think that is a healthy tension to leave through this liability 
on the rail industry.
    Now, at the same time, a rail CEO probably doesn't want to 
risk the company's exposure for that, so you want to get 
insurance. If the insurance marketplace, Congresswoman Brown, 
has not provided sufficient capacity so that they can 
reasonably cover this risk, maybe some type of Federal 
reinsurance layer ought to be established. I think we ought to 
charge for it. I think these are costs that ought to be borne 
by the industry and priced into what they charge for carrying 
hazardous product. That is an expensive shipping rate, and it 
ought to include all the risks involved.
    In other words, I think that that might be one solution to 
this problem.
    Mr. LaTourette. Well, Congressman, thank you very much for 
being with us this morning.
    Mr. Pomeroy. Thank you. Thank you, Mr. Chairman.
    Mr. LaTourette. Mr. Barrow.
    Mr. Barrow. This round of questioning has prompted a 
question because I too am open to and sympathetic to the idea 
of spreading the risk as far and wide as we can, but I think it 
is important to recognize that good insurance takes those risks 
that can't be avoided and spreads that as far and wide as 
possible. The question then becomes how can we minimize the 
risk and what sort of insurance plan is most calculated to 
actually reduce the risk.
    I consider the taxpayer, the class of taxpayers who would 
subsidize a Federal insurance scheme and the class of consumers 
who would end up subsidizing it ultimately under a scheme that 
puts responsibility on the railroads to answer for the full 
cost of damage done as a result of negligent handling of hazmat 
as being largely overlapping. These are like Zen diagrams in 
which the two groups largely overlap. There is not a complete 
coextensive overlapping, but there is a significant extent to 
which the taxpayers and the consumers, the folks who consume 
stuff that moves over rail, are largely the same group.
    So you could argue from one point of view that the cost is 
largely the same and it is easier to manage from the taxpayer. 
My concern is where is the incentive to minimize the risk if 
the taxpayers, represented by a board of directors that sits 
here in Congress, is the group that is underwriting this and 
managing, where is the incentive to minimize the risk? If you 
have got stockholders for railroad companies assuming the risk 
and managing this in the private sector, you might have an 
incentive to minimize the risk.
    And, Mr. Hamberger, when you get a chance to testify, I 
hope the folks will address this issue, because I think the 
pocket we are reaching into ultimately is the same, but the 
management of the risk problem and the incentive to increase 
profits by minimizing these risks as much as possible rests 
more effectively with the private sector than with the public 
sector.
    So I just want you all to be aware that is my concern. I 
think the consumer and the taxpayer are largely the same folks. 
But who is going to be managing the problem of minimizing the 
risk, because that is where I think we all want to get? We want 
to have the fewest number of these incidents as possible.
    Earl, I don't know if you can address that, but that is an 
area of concern that I wanted to put on the table after hearing 
the testimony.
    Mr. Pomeroy. I will be very brief, but I agree with that 
analysis. I don't think we want, on the one hand, to expose 
rail companies to bankruptcy every time they run an anhydrous 
ammonia car down the rail. On the other hand, I don't think you 
want to make this industry unique to other industries and say 
they are not responsible for their actions. Anybody needs to be 
responsible for their negligent actions. They need to have some 
skin in the game in the recovery business.
    Mr. Barrow. Along those lines, in the health insurance 
industry we have the idea of co-share and co-pay, a sharing of 
responsibility, something like that, a blended area of 
responsibility. Just a thought to consider.
    Mr. LaTourette. Well, again, Congressman, I thank you for 
coming.
    I would tell you, Mr. Barrow, that I think that that is the 
first time that the phrase ``Zen diagrams'' has been put into 
the record of the Railroad Subcommittee. I appreciate that.
    [Laughter.]
    Mr. LaTourette. You go with our thanks.
    On our second panel this morning, we are pleased to welcome 
back the Honorable Joseph Boardman, who, of course, is the 
Administrator of the Federal Railroad Administration; and Mr. 
Robert Chipkevich, who is the Director of the National 
Transportation Safety Board, Office of Railroad, Pipeline, and 
Hazardous Materials Investigations.
    As soon as everybody gets situated. Gentlemen, thank you 
very much for coming. We look forward to hearing from you.
    Mr. Boardman, you are up.

  TESTIMONY OF THE HONORABLE JOSEPH BOARDMAN, ADMINISTRATOR, 
 FEDERAL RAILROAD ADMINISTRATION; ROBERT CHIPKEVICH, DIRECTOR, 
   NATIONAL TRANSPORTATION SAFETY BOARD, OFFICE OF RAILROAD, 
        PIPELINE, AND HAZARDOUS MATERIALS INVESTIGATIONS

    Mr. Boardman. Thank you, Mr. Chairman, Ranking Member 
Brown. I think I had the shortest oral testimony in history 
last time. This one is going to be just a little bit longer, so 
if you will bear with me. I appreciate being here today 
representing the Secretary of Transportation and the FRA.
    I think you pointed out in your opening statement some of 
the history of the Federal regulations on hazmat transportation 
with the Hazardous Materials Act. I would like to talk about 
this in terms of a design, construction, and maintenance of 
railroad tank cars that has been regulated for much, much 
longer than many people understand. As a matter of fact, it was 
in 1865 that the railroads began to really operate tank cars, 
and they actually regulated this for over 100 years.
    In 1903, the master car builders at that time published the 
first standards, and for chlorine tank cars it was three-
quarters of an inch of carbon steel surrounded by 4 inches of 
cork insulation and an eighth inch metal jacket. In 1927, the 
ICC adopted those standards as Federal regulations, and they 
have progressed into our present day requirements.
    The NTSB has recognized that three major improvements alone 
have reduced punctures, fires, catastrophic ruptures to tank 
cars, that is, shelf couplers, both bottom and top couplers; 
head shields on the front and rear tanks; and thermal 
protection of the tanks. Those improvements have really come 
about with the efforts of PHMSA, my sister agency, the FRA, and 
the industry working together to improve tank car safety in a 
long period of time.
    But work to improve tank car survivability has not stopped. 
Skid protection for protruding bottom outlets, part of the list 
of additional requirements that have taken 10 years to phase in 
will be complete on July 1st of 2006. And research resulting 
from accidents such as Minot or Graniteville and the SAFETEA-LU 
Section 9005 have all provided a continuing focus on the 
conditions of affecting survivability and integrity of tank 
cars in an accident.
    However, the FRA's primary mission--and I also believe the 
industry's primary interest--is in preventing accidents. We 
know the causes for most accidents, and over 70 percent of them 
come from just two categories. Human factors account for 37 
percent of all accidents. Failure to clear the track, failure 
to clear a shoving move, and failure to properly align a switch 
are primary factors relating to accidents. The FRA will publish 
a proposed rule on these factors this fall.
    But regulation is only one of the ways we try to prevent 
accidents. Education is another. And we will publish a final 
report on research that will help all railroads improve crew 
scheduling in August of this year. These are both part of the 
Secretary's National Rail Safety Action Plan announced last 
May. Other elements, like the National Inspection Program, 
direct safety inspectors to where problems are likely to arise, 
and all disciplines now are subject to this new plan.
    Track failure accounts for 34 percent of all accidents. 
Broken rail, joint bars, and wide gage are the leading causes 
of track failure. Research is a key element of accident 
prevention. Vehicle-mounted imaging technology to analyze rail 
joint bars to identify and detect cracks has done so well that 
railroads are becoming believers very quickly and adopting the 
technology for their high-railers. The FRA will deploy two 
additional automated track inspection vehicles that will be 
able to analyze, when combined with the one we already have on 
the rails, 100,000 miles of track per year.
    The FRA is also working with BMSF on remotely monitoring 
switch positions in dark territory, and expect to issue a 
report this fall. We will also begin a close call pilot project 
with the UP in North Platte, Nebraska on July 1st, where what 
should have been an accident, but was not, will be reported as 
part of our ongoing research.
    Railroad obligations to carry hazmat, routing requirements 
for those shipments, preemption and liability exposures are 
important issues and deserve serious discussion. Those serious 
discussions are already being held not just here, but at the 
AAR, both at their Tank Car Committee and their other meetings, 
the American Chemistry Council and tank car builders, and the 
FRA's RSAC Committee and their working groups, and others.
    The FRA wishes to complete the tank car research that it 
has committed to prior to making major changes in the industry 
standard that the AAR Tank Car Committee is contemplating. The 
FRA has accelerated its research by one year, adding additional 
resources to our plan to be done by research now in 2007, 
rather than in 2008. We have also taken statements in a two-day 
information gathering here in D.C. on May 31st and on June 1st 
with over 20 speakers from the industry. We did this in 
conjunction with PHMSA and will open a docket on the issue of 
the tank car construction.
    I have been the administrator for a little over a year now, 
and I can tell you that both the Department, led by the 
Secretary, and the agency, filled with dedicated rail 
knowledgeable staff, keep all elements of safety firmly in 
mind, with prevention being the primary mission and mitigation 
or survivability of an accident the highest priority if the 
worst happens. Most railroads today are striving for a safety 
culture in each of their work environments. From the cab of the 
locomotive to the switching yard, working with all interested 
parties, from management to union to customer to consignee, 
safety can be and is being improved.
    Freight scope is the newest reporting pilot that will 
provide better information to communities and those who need to 
know where hazmat shippers are. Working with the TSA, the FRA 
short lines and Class I railroads are making major improvements 
in near real-time reporting. I believe that working together 
will make railroads safer and do it in a way that allows 
economic benefits to be balanced.
    Thank you for your accommodation of my overrunning time.
    Mr. LaTourette. Well, thank you very much, Administrator 
Boardman. Just for purposes of the record, would you be kind 
enough to introduce Mr. McGuire, who you brought with you?
    Mr. Boardman. Mr. McGuire is with the PHMSA organization 
and is here as an expert if needed.
    Mr. LaTourette. Thank you very much.
    Mr. Chipkevich, welcome to you, and we look forward to 
hearing from you.
    Mr. Chipkevich. Thank you. Chairman LaTourette, Ranking 
Member Brown, and members of the Subcommittee, thank you for 
the opportunity to discuss issues on the transportation of 
hazardous materials by rail.
    Following catastrophic accidents in the 1970's, safety 
mandates such as shelf couplers, head shields, and thermal 
protection have improved the performance of tank cars and 
accidents. Despite these improvements recent accidents have 
raised new concerns about the transportation of hazardous 
materials in tank cars.
    The derailment of a Canadian Pacific train near Minot, 
North Dakota in 2002 resulted in a catastrophic failure of five 
tank cars. Each tank car held about 30,000 gallons of anhydrous 
ammonia, a poisonous liquified gas. The accident resulted in a 
toxic plume approximately 300 feet thick and 5 miles long. An 
estimated 11,600 residents of Minot were affected. One resident 
was fatally injured and 322 sustained minor injuries.
    In 2004, a Union Pacific train struck a BNSF train as the 
BNSF train entered a siding near Macdona, Texas. As a result of 
the collision, a tank car filled with chlorine was punctured. 
Three persons died as a result of chlorine gas inhalation.
    In 2005, a Norfolk Southern train encountered an improperly 
aligned switch in Graniteville, South Carolina. The train was 
diverted onto the siding, where it struck a parked train head-
on. A tank car filled with chlorine was punctured, and 9 people 
died as a result of chlorine gas inhalation and 75 were 
admitted to hospitals.
    As a result of the Minot investigation, the Safety Board 
concluded that the low fracture toughness of steels used in the 
tank shells that catastrophically ruptured contributed to their 
complete fracture and separation. The Board recommended that 
the Federal Railroad Administration conduct a comprehensive 
analysis to determine the impact resistance of the steels in 
the shells of pressure tank cars constructed before 1989; based 
on the analysis, rank the pre-1989 pressure tank cars according 
to risk and implement measures to eliminate or mitigate those 
risks; to validate the predictive model being developed to 
quantify the dynamic forces acting on railroad tank cars under 
accident conditions; and develop and implement fracture 
toughness standards for steels and other materials of 
construction for pressure tank cars used to transport liquified 
compressed gases.
    We believe that the development of the predictive model and 
implementation of fracture toughness standards go hand in hand 
and will lead to tank car designs that can provide improved 
structural integrity and puncture resistance.
    In Graniteville, the steel in the tank shell of the 
punctured chlorine car had a fracture toughness that was 
significantly greater than the fracture toughness of the tank 
cars in Minot. Because of the improved properties of the steel 
and increased wall thickness, the Graniteville tank car was 
among the strongest tank cars currently in service. However, 
the Board concluded that, as shown in the Graniteville 
accident, even the stronger tank cars in service can be 
punctured in accidents that involve trains operating at 
moderate speeds.
    Modeling accident forces and applying fracture toughness 
standards will improve the crash worthiness of tank cars. 
However, because of the time that it will take to design and 
construct improved tank cars, the most expedient and effective 
means to reduce public risk from the release of poisonous gases 
in accidents is for railroads to implement operational measures 
that will minimize the vulnerability of tank cars transporting 
these products.
    The Board recommended that the FRA require railroads to 
implement operating measures such as positioning tank cars 
toward the rear of the trains and reducing speeds through 
populated areas to minimize impact forces from accidents.
    The tank car failures I have discussed are the consequences 
of train derailments and train-to-train collisions. Reducing 
train derailments and collisions can also reduce the risk of 
catastrophic tank car failures.
    Human performance failures have resulted in numerous 
collisions that could have been prevented with a safety 
redundant system such as positive train control. A 
recommendation to require positive train control systems has 
been on the Safety Board's list of most wanted transportation 
improvements since 1990. Inadequate track maintenance and 
inspections have been causal to several serious accidents, 
including Minot. Greater attention to track inspections and 
maintenance by the railroads and the FRA can help reduce 
derailments and tank car failures.
    Mr. Chairman, this completes my statement. I would be happy 
to respond to questions at the appropriate time.
    Mr. LaTourette. Mr. Chipkevich, thank you very much for 
coming and thank you for your testimony.
    Administrator Boardman, I want to start with you. The 
members of the Subcommittee have had the opportunity, twice in 
the last couple years, to travel out to your testing facility 
in Pueblo, Colorado. It was recently--and for those who haven't 
been out there, they basically permanent train derailments for 
the purpose of hazmat training and other training, and there 
was a group from Union Pacific I think was training when I 
happened to be out there.
    I have been advised, though, that the facility in Pueblo 
has the capacity to double or triple what the current amount of 
training that currently goes on. Are you aware that you have 
additional capacity, that there is additional capacity?
    Mr. Boardman. I know that in some of the discussions, Mr. 
Chairman, that we believe that we could use more training. We 
have some, for example, other facilities that are beginning to 
train now too, so, yes.
    Mr. LaTourette. OK. I guess my question is why--has there 
been any dialogue between DOT and FRA with the Department of 
Homeland Security, and do you know why they wouldn't be 
interested in using--the figure that I was told was that there 
could be three times as many training sessions out of Pueblo as 
currently exists, there is enough capacity for that. Are there 
discussions going on with the Department of Homeland Security 
to get more first responders trained in that type of setting?
    Mr. Boardman. Well, I think the Department of Homeland 
Security is using a training facility in Texas right now. 
Certainly, they could. And I haven't had any direct discussions 
with them, but I can have. They could have use of especially 
train or locomotive railroad facilities if they come to Pueblo, 
and I will take that up with the TSA deputy.
    Mr. LaTourette. OK. I would appreciate that. Secondly, when 
Congressman Pomeroy was talking, I think he was focusing on--I 
guess it is the 8th Circuit, kind of a strange decision that 
indicated in the Minot hazmat release case, the decision held 
that the Federal Railroad Safety Act preempts State tort law 
and precludes recovery by an injured party for any alleged 
negligence in the accident. It came as a surprise to me, and I 
think it also came as a surprise to the railroads. I am not 
going to speak for the railroads--in that they assume that 
section 201.06, on the preemption of order and regulation, 
referred to regulatory requirements, not tort law.
    My question is was the FRA consulted, either on a referral 
basis or did the district courts ever reach out to the FRA for 
the purpose of filing an amicus brief just to collect the 
Administration's view on that?
    Mr. Boardman. We are considering being able to do something 
like that. We have not been a party to this particular lawsuit. 
And I do have some expectation--it is also being reviewed now--
that there might be a different decision.
    Mr. LaTourette. OK. In my opening remarks I talked about 
the fact that I don't think rerouting, the city sort of up and 
doing this not-in-my-backyard business is a good idea. But I do 
think that the FRA has the authority--and I think you have 
already exercised it under section 333--to promote a conference 
among the rail carriers to, while shielding them from any 
antitrust violations, to discuss more direct routing of trains, 
so that if you had a tank car filled with chlorine that was 
leaving Louisiana, that it wouldn't have to go to Detroit 
before it came back down to Cincinnati, it could just be more 
direct. So I appreciate that kind of effort.
    Is it your understanding that the Department of 
Transportation has any coercive ability, and that is, when you 
listen to Mr. Chipkevich's testimony, he didn't say the best 
tank car, but I understood him to say that the one in 
Graniteville was a pretty good tank car based upon today's 
standards, and any tank car, even with that kind of technology, 
in a, I think he said, a moderate speed collision, we can have 
difficulty.
    Is it your understanding that the FRA or the DOT has the 
ability to coerce or mandate that less volatile alternatives be 
shipped than are actually--for instance, if a conclusion is 
reached that we can't safely ship a certain substance without 
the danger of release in a moderate collision accident, do you 
think that the FRA has the ability to preclude the shipment on 
some lines of exceptionally hazardous materials?
    Mr. Boardman. I believe that a large part of that body of 
ability rests with the STB, rather than with the FRA. And 
certainly there is an interest on everybody's part in reducing 
the risks. And I know in some cases, in terms of the kinds of 
things that have happened with railroads, that they would just 
as soon not carry some of this material, but they do have a 
safety record. In fact, Mr. Chairman, if you look ever the last 
ten years, while every life is absolutely precious, we have 
lost 14 of them to releases in the railroad industry and over 
100 in highway-related hazmat releases, and I think that that 
alone demonstrates the safety of the rail side.
    Mr. LaTourette. Thank you.
    Mr. Chipkevich, just one question for you. I was visited by 
the family of the engineer who lost his life in the 
Graniteville accident, and they made the observation or had the 
opinion that if the train had been outfitted with breathing 
equipment, their son may have survived. Did the NTSB make any 
recommendations or observations relative to train crews being 
given gas masks or other escape hoods for these types of 
collisions?
    Mr. Chipkevich. Yes, sir. The Safety Board also found that 
the engineer had survived the dynamics of the crash and had 
ultimately died from inhalation of chlorine, and we have made a 
recommendation to the FRA to look at providing a requirement to 
provide protection for crew members to be able to escape that 
type of situation.
    Mr. LaTourette. OK. Thank you very much.
    Ms. Brown?
    Ms. Brown. Mr. Boardman, I want to follow up on that 
question. The NTSB has recommended that railroads provide 
emergency escape breathing apparatus for all crewmen on freight 
trains carrying hazardous materials. What is FRA's response to 
this recommendation?
    Mr. Boardman. It is a recommendation that we certainly are 
looking at in terms of what are the elements of this. I would 
like to take you back for a minute, if you would, to my younger 
days as a transit manager in Binghamton, New York, when there 
was a derailment and a release many years ago, when I was not 
involved with the FRA or the railroads. My job at the time was 
to evacuate the community and the senior citizen centers and 
some of the facilities, and you had to tell your drivers to go 
down into the location where this release occurred, and we did 
that.
    There was a delay on the part of decision-makers about when 
they were going to release the senior citizens from the home. 
And I know one of the things that we had in discussion with our 
union and our employees was perhaps if we were going to do that 
kind of thing in the future, we needed to have some kind of a 
breathing apparatus that would assist us.
    So part of the difficulty here--and it is a very 
complicated issue in the fact that it cannot be a filtered 
apparatus, because a filtering apparatus would only be for 
something that was within the air and didn't displace the air 
like some of the hazardous materials that we are dealing with. 
So we are really talking about an air pack type of a breathing 
apparatus, if that is necessary. And the training, the 
inspection, and all the things that go along with it are all 
additional complications in the process, but something we are 
looking at.
    Ms. Brown. In SAFETEA-LU we provided $4 million per year to 
nonprofit employee organizations to train hazmat employee 
instructors. What is the status of implementation of that 
program?
    Mr. Boardman. Yes. As part of SAFETEA-LU, the grant program 
was greatly enlarged, and one of the new provisions was for 
that program. We are working to implement that program. It will 
be implemented in 2007. The passage of the bill was such that 
we could not get the funding and get the procedures underway 
for this grant cycle, but it will be implemented next year.
    Ms. Brown. Mr. Chipkevich, in the Amtrak accidents the NTSB 
has investigated, how many of those accidents was Amtrak's 
fault and how many was the freight rail's fault? Who is 
responsible in the event of an Amtrak accident, Amtrak or the 
freight railroad?
    Mr. Chipkevich. In the past ten accidents we have 
investigated involving Amtrak, eight have been derailments 
because of track problems, and they were operating on tracks 
that were owned by freight railroads. The other two involved 
collisions, one is up near Syracuse, New York, where an Amtrak 
train rear-ended the rear of another train and a side collision 
in Baltimore with a Marc train.
    Ms. Brown. Just to follow up on that one, so, I am not 
clear. Who is responsible for maintaining the tracks?
    Mr. Chipkevich. Well, in the eight accidents we 
investigated, the track was owned by the freight carrier and 
would have been maintained by the freight carrier.
    Ms. Brown. Well, who pays the damage?
    Mr. Chipkevich. NTSB does not get into the damage issue of 
who pays cost on that, but, rather, in determining probable 
cause and finding track-related problems, that would have been 
track maintained by the freight carrier.
    Ms. Brown. So you can't answer that question or you don't 
get into it? Do you know the answer to it?
    Mr. Chipkevich. That is correct, we don't--NTSB does not 
determine liability, and so as far as issues regarding payment 
later and things of that nature, NTSB has not gotten into.
    Ms. Brown. Mr. Boardman, can you answer that question?
    Mr. Boardman. Generally, it is Amtrak is liable and 
responsible based on the agreements that they have with the 
freight railroads.
    Ms. Brown. So whether they are at fault or not, they have 
to pay for the accident?
    Mr. Boardman. If there is a claim that occurs. Now, for 
example, I think--and I don't know, maybe Ed or somebody can 
help me out a little bit with this, but the freight railroads 
would be responsible for repairing their own facilities, I 
believe, but in terms of damages or suits to people, it would 
be Amtrak.
    Ms. Brown. So just help me here, now. Of the ten accidents 
that Amtrak has been involved in, eight of them were caused by 
the tracks not being kept up properly. So Amtrak, from what he 
is saying, was not really responsible for it, but they had to 
pay for it.
    Mr. Boardman. That is correct, if that is the way Chip has 
put it down. Amtrak is responsible for accidents that occur.
    Ms. Brown. Whether they are at fault or not.
    Mr. Boardman. That is a relationship between them and the 
freight railroads themselves for a right to operate on the 
freight railroads' facilities.
    Ms. Brown. Well, do you not think it is the responsibility 
of the railroad to make sure that the track is in proper------
    Mr. Boardman. It absolutely is a responsibility of the 
railroad for that, of the freight railroad.
    Ms. Brown. All right, Mr. Chairman.
    Mr. LaTourette. I thank the gentlelady.
    Mr. Simmons.
    Mr. Simmons. Thank you, Mr. Chairman.
    I would like to make reference to a report produced by the 
Teamsters Rail Conference called High Alert. I think the 
witnesses may be aware of this report. The topic is ``Workers 
Warn of Security Gaps on the Nation's Railroads.'' And one of 
the areas that is of particular interest to me is the area of 
railroad security or railroad police, and one of the sets of 
questions that was put out in a poll to railroad workers is: 
Was the rail yard access secure today? Yes, 6 percent; no, 94 
percent. Was there a visible rail police presence in the yard 
today? Yes, 4 percent; no, 96 percent. Was equipment access 
secure today? Yes, 10 percent; no, 90 percent.
    I guess my question goes again to the issue that rail 
safety can be an issue of negligence, but it can also be an 
issue where some foreign entity, a terrorist group or some 
other disruptive group, wishes to take advantage of the 
openness and access of our infrastructure to cause us harm and 
to cause us damage. We are certainly familiar with the attacks 
on the railroads in Spain, which were passenger railroads, and 
of the subways of London.
    So my question to you as Federal regulators is what role or 
responsibility do you have for rail security through rail 
police or other police measures, and what progress are we 
making to improve that security in the yards, on trains that 
are idling without crews on board, on movable bridges and other 
nodes of access for terrorist groups.
    Mr. Boardman. Congressman, I think that ever since the 
events of 9/11 there has been a continuing debate, struggle, 
difficulty on the openness of our society and how we deal with 
the availability of everything that is out there in front of 
us, and we recognize, for example, at the FRA, when you look 
at, today, the results of how people are killed on the tracks 
or fatalities occur, that a large percentage of that, matter of 
fact, the highest level today is trespass, and people that are 
getting on the tracks, that are getting near the tracks, that 
we are having a great difficulty with that.
    And we are trying or find the profile--the largest majority 
of that, in fact, all of them, are not terrorists, they are 
just people who are trying to exercise, they are people who are 
trying to find a quiet place or having a party of some sort or 
we don't know all the reasons why. That is a real problem for 
our industry. The railroads themselves, the FRA and our 
encouragement in the process, have begun to really think about 
how do we train, how do we tell our employees to try to be more 
secure. The common sense of people in sometimes just throwing 
their hands up; well, what does that mean, how do you deal with 
this?
    I recently watched a video, I think, produced by Norfolk 
Southern that really made a lot of common sense, and what it 
was was that it is those people that are employed every day 
that are in that facility, that go to work every day, that 
knows when something is out of place. And I think that part of 
the education that is occurring here today is to be much more 
vigilant in terms of what is going on around you.
    For example, in our own building on Vermont Avenue here 
this past fall, we share that with some of the DHS folks, and 
there is always something going on with DHS in terms of the 
building itself. They have a larger part of that particular 
facility than the FRA does.
    And I walked out one afternoon and there were people taking 
pictures and writing notes around the building, looking at the 
building, and I thought to myself, OK, if I am supposed to be 
paying attention to what is going on around me, I am going to 
go up and introduce myself and find out what these folks are 
doing. And they were doing a contract for DHS, but we weren't 
told at the time that that was the case, and I went over to 
find out what happened.
    I think what we see happening today--and I understand the 
high alert and the interest of the employees, because there is 
a high level of anxiety that occurs out there, not just in 
terms of the potential for somebody putting an IED on one of 
the trains--and that is part of what is in the video, looking, 
as you inspect your train, as you walk your train, what can you 
see?
    Mr. Simmons. Mr. Chairman, if I could interrupt, because my 
time is rapidly disappearing, and I don't think I am getting 
the answer that I want to hear.
    One of the other questions was has your railroad increased 
the frequency of inspections at critical infrastructure secure 
points? No, 42 percent. What additional training related to 
terrorism prevention have you had, if any? No, 83 percent.
    My question is what is the FRA doing to try to implement a 
program either to educate employees--I agree employees are the 
ones that know the yard best; it is like a neighborhood watch. 
Have they been brought into the system of securing these 
facilities? Is there a reporting mechanism that the FRA has 
recommended on these issues? And I am not hearing that there is 
any such program.
    Mr. Boardman. I understand. And I think we are working with 
TSA, who has the primary obligation for security, to try to 
make those things happen.
    Mr. Simmons. Thank you, Mr. Chairman.
    Mr. LaTourette. I thank the gentleman.
    Mr. DeFazio.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Mr. Chipkevich, I notice that you say--there are two things 
that sort of jump out at me here. One is--and I am more 
familiar with your frustrations in the area of aviation 
security that I see here, or aviation safety. A recommendation 
for requirement for positive train control systems has been on 
the Safety Board's list of most wanted transportation safety 
improvements since 1990. That would seem to be 16 years ago. 
And I note that apparently the FRA response has been to develop 
standards, but no mandate, is that correct? And does that meet 
your concerns, by having standards but no mandate for positive 
train control?
    Mr. Chipkevich. Well, that is correct. We certainly believe 
that there should be a requirement for positive train control 
systems. We have investigated a number of accidents that are 
continuing to occur that are either collisions, missed signals, 
running through switches that were left in the wrong position, 
things of this nature that can be prevented by a train control 
system. We know and understand that some of the railroads are 
working to develop those systems, and we have seen more work in 
the last couple of years than we have in a long time, but we 
certainly still feel that this is something that should be 
required.
    Mr. DeFazio. And I know, as you said in response to an 
earlier question, you don't determine liability and that, but 
if--and perhaps you may or may not want to venture an opinion 
on this, but if the rail industry is asking for some sort of 
safe harbor, partial protection or mandates regarding shared 
liability or liability limits, do you think that implementing 
these sorts of procedures would be, one, sort of minimal 
prerequisite to Congress going down that path? Because 
otherwise it seems to me if they haven't implemented positive 
train control--you have identified it to be a frequent and 
ongoing problem--that not having that as a mandate would be a 
problem. Or maybe the ones who voluntarily do it could get some 
assistance or limits on liability, and the ones who don't want 
to, they can just be out there.
    Mr. Chipkevich. Well, we have not ventured into the 
liability issue area; however, we do believe that positive 
train control is a very important safety redundant system. It 
is across the Nation where we have had--it is not just in one 
local area, but across the Nation where we have investigated 
head-on collisions and a lot of accidents where we believe that 
would be very effective.
    Mr. DeFazio. All right.
    So, Mr. Boardman, why would we just make it advisory, 
voluntary, and not mandatory, with some sort of reasonable 
period to phase that in?
    Mr. Boardman. Congressman, I think that what we have worked 
with is with the railroads to develop the right kind of 
assistance, and certainly on the northeast corridor today and 
the communication-based train control with Amtrak, that is 
working.
    Mr. DeFazio. Yes, but we are here talking about freight, we 
are not------
    Mr. Boardman. But we also have a product safety plan from 
the BNSF right now for an ETMS system, and we think we are 
making progress in that area.
    Mr. DeFazio. But why wouldn't you want to make it a 
requirement instead of voluntary and phase it in over a period 
of time if it has been identified consistently as a factor in 
accidents and it has been, for 16 years, their most wanted 
improvement in rail safety, and many accidents have occurred 
since then?
    Mr. Boardman. Because what we really believe is that there 
is a need for us to have the technology and a cost benefit that 
provides the right facility for the future.
    Mr. DeFazio. Well, cost benefit, but they are asking for 
some liability exemptions. So how would we factor that in?
    Mr. Boardman. Well, I think------
    Mr. DeFazio. I mean, the point here is that there should be 
some quid pro quos. The chemical industry is going to have to 
take part of the cost here with improved design of the cars. 
The rail industry wants some relief here, but I think there 
should be some improvement in performance required to get any 
sort of relief that Congress might grant them.
    And you are saying, well, someday, if it fits their cost 
model and when we have railroads like in my part of the Country 
being dominated by UP, who has been, you know, until very 
recently, disinvesting in the system, I don't see that they are 
exactly a leader in new technology and positive train control 
or moving in that direction without some sort of mandate or 
deadline.
    Mr. Boardman. I think the UP is, but I do understand your 
point.
    Mr. DeFazio. OK. But, again, I am going to suggest strongly 
to the Chair, if we are going down that other path, that there 
is going to be some sort of quid pro quo.
    Where are you on the standards we required in TEA-LU, 
SAFETEA-LU in terms of developing new models and standards? It 
seems to me another thing here that seems like a no brainer--
but I guess, again, it might impose some minimal cost because 
they would have to move cars more--is, Mr. Chipkevich, would it 
really help to put these cars toward the rear of the train?
    Mr. Chipkevich. We have reviewed studies that have been 
conducted in the past, and the answer is yes. We believe that 
certainly the forces involved in an accident, the energy, would 
be significantly less affecting the cars towards the rear of 
the train. And studies that we have looked at have supported 
that.
    Mr. DeFazio. So, Mr. Boardman, where are we on perhaps 
asking them to develop voluntary models------
    Mr. Boardman. We don't agree with NTSB.
    Mr. DeFazio. Oh, you don't.
    Mr. Boardman. We have looked at our own studies, and random 
placement of the cars is just as good as the other kind of 
placements, placements to the rear. For example, if you are 
going to specifically locate them, the number of times that you 
have to cut the train and move them increases the risk of the 
opportunity for a release.
    Mr. DeFazio. So cutting and moving at very slow speeds in 
yards is as dangerous as trains being derailed operated at 
higher speeds and/or crashing?
    Mr. Boardman. They are for employees, Congressman.
    Mr. DeFazio. Right.
    Mr. Boardman. For the employees of the railroad. And the 
non-accident releases that we have each year, which are nearly 
700, are really on the low-speed yard kind of transfers, and 
those kinds of things increase the risk, we think, for the 
overall picture.
    Mr. DeFazio. OK.
    Thank you, Mr. Chairman. My time has expired.
    Mr. LaTourette. I thank the gentleman.
    Mr. Cummings?
    Mr. Cummings. Thank you very much, Mr. Chairman.
    Mr. McGuire, Section 7131 of SAFETEA-LU requires PHMSA to 
conduct nine multi-modal studies on hazmat transportation as 
described in TRB Special Report 283, and I am wondering, DOT is 
to submit a report on the need for cooperative research program 
on hazmat transportation.
    Can you update us on the status of that? That was my 
provision. Those are my provisions in the SAFETEA-LU bill, and 
I just want to make sure it is working and something is 
happening. You can go ahead.
    Mr. McGuire. Yes, Mr. Congressman. We have put in place a 
contract with the National Academy of Sciences. We are 
negotiating with them right now. The funding for this year will 
be about $900,000 because of the over-subscription of the 
Highway Trust Fund. But those monies are now available to us 
and we are working on setting up the oversight committee for 
the cooperative program, and that program will be underway by 
the end of this fiscal year.
    Mr. Cummings. OK, thank you.
    Mr. Chipkevich, I want to return to the hazardous materials 
transportation issue. In January of last year, the NTSB 
released a brief on the Baltimore Tunnel fire that actually 
took place back in 2001. In other words, NTSB took three years, 
three years, to release a report on this accident. Can you 
explain to me why it takes so long, particularly when you are 
talking about hazardous materials, you are talking about safety 
issues, things that probably need to be corrected, and it takes 
three years?
    Mr. Chipkevich. Yes, sir. That was an accident that we 
could not determine what the cause was. We spent extensive 
resources to do a finite element analysis of the tunnel 
structure, to do further examination. There were millions of 
gallons of water that flushed through that tunnel following the 
accident, before we could get access to it, so there was a lot 
of work and examination done.
    On the contrary, the accident in Graniteville, South 
Carolina, we did complete in less than a year, where the 
circumstances were more clear on what the cause of that 
accident was. So sometimes the complexity of the accident, as 
well as our resources, will affect how long it takes us to 
complete it.
    Mr. Cummings. Talking about resources, do you feel that you 
have enough resources and personnel to do what needs to be 
done?
    Mr. Chipkevich. We have asked for additional resources in 
the past, and we have 13 investigators, basically two teams to 
cover the entire United States for all accidents.
    Mr. Cummings. So in a reasonable, ideal situation, how many 
teams would be suitable and reasonable?
    Mr. Chipkevich. Certainly, we have provided--we can provide 
for the Committee the requests that we have made by number in 
the past, but we have asked for, gosh, in the neighborhood of 
about double the number of investigators that we do have.
    Mr. Cummings. All right, so, in other words, basically four 
teams?
    Mr. Chipkevich. Yes, sir.
    Mr. Cummings. All right, fine. Let us go back to you just 
mentioned the Graniteville, South Carolina situation. Tell me, 
what do you believe needs to be done to improve the ability of 
local first responders to respond to a hazardous materials 
incident on a train? In other words, what are the main 
weaknesses in our current first response capability?
    Mr. Chipkevich. Well, we felt in Graniteville, the local 
emergency response staff did a very good job, considering the 
situation that they faced. We believe that--and we have done 
studies over the years with a lot of accidents--a need for 
there to be good coordination ahead of time between local 
responders and the railroads so that when an accident happens, 
local responders will be able to get information from the 
railroad quickly about what is involved in the derailment, and 
then can make a good decision on actions that they need to 
take, whether it is evacuating or sheltering in place, and what 
type of resources they would need. So I think the most 
important issue is preplanning and coordination between 
railroads and the emergency responders.
    Mr. Cummings. Mr. Chairman, I will yield back to give 
somebody else time to ask questions.
    Mr. LaTourette. I thank the gentleman very much.
    There are currently two votes occurring on the floor, so we 
are going to stand in recess. The Chair would ask members that 
have additional questions of this panel to sort of hustle back 
after the second vote. We have two more panels that each have 
four witnesses, and the Coast Guard Subcommittee wants the room 
at 1:00, so we want to try and move forward.
    We stand in recess subject to the votes on the floor.
    [Recess.]
    Mr. LaTourette. If I can ask everybody to find a seat, we 
will get started. I apologize for the delay. They tell us the 
next votes are going to be in a couple hours, so hopefully we 
can get through the other two panels.
    Mr. Barrow.
    Mr. Barrow. Thank you, Mr. Chairman.
    Mr. Boardman, if I understand correctly, the NTSB is of the 
view that car placement is in the area of railroad operations 
that can address not the issue of trying to reduce mishaps, but 
trying to make them more survivable, more crash worthy. The 
issue of car placement moves on a parallel track, it seems to 
me, then the issue of trying to prevent accidents, because if 
we can make all these poison containers absolutely puncture-
proof in any and all incidents, we could tolerate a fair number 
of mishaps and nobody--no innocent bystanders would be hurt. 
But since we can't, we can't eliminate mishaps altogether, it 
seems to me we have got to try to move the train down the track 
on parallel tracks.
    We ought to try to make accidents as preventable as we can. 
We also ought to make them as survivable as we can. And making 
them more puncture-proof is one way of making them survivable. 
That leaves the universe of incidents and accidents just as 
violent and just as frequent as they are right now. All the 
things being equal, make them tougher and they will be more 
survivable. All things being equal, reducing the number of 
incidents and you have got more people surviving.
    Let us take the same number of incidents. Just take the 
equipment as we find int, but rearrange stuff on the trains in 
such a way as to put stuff in different areas of the train, and 
a good case can be made that you can make a lot of these 
incidents more survivable for people, for all concerned.
    Now, I hear the NTSB saying that is what we ought to do, 
and I hear you saying that the FRA disagrees with that 
assessment because you all throw into the assessment the 
frequency of minor mishaps happening in the yards at yard 
speeds, and incidents like that. And you say when you compare 
that to the incidents we are dealing with at track speed 
incidents, it is really more risky to have a policy of 
deliberate placement of hazmat cars toward the end of trains. 
You say random placement is better than a consistent policy 
that tries to minimize the incidents.
    But I read that back in 1992 the FRA issued a report, and 
it was entitled ``Hazardous Materials Car Placement in a Train 
Consist,'' and it took the exact opposite position that you are 
expressing today. What happened between 1992 and today to make 
a policy of placing your more hazardous stuff toward the rear 
of the train a better idea back then than it is now?
    Mr. Boardman. I think, Congressman--and I understand, it is 
a very thoughtful question and you certainly got to the heart 
of a lot of the issues. We certainly have a--when a consist 
goes together, a preferred way that we would like to see the 
consist put together with hazardous materials. For example----
--
    Mr. Barrow. I heard you before say that random is better 
than------
    Mr. Boardman. Well, I may have misspoken in some ways, but 
the study that I am relating to--and I can ask staff for a 
little more specificity to it--is we looked at the random 
placement of cars on the------
    Mr. Barrow. Is it a published report?
    Mr. Boardman. Yes, I believe it is.
    Mr. Barrow. Can you get that for us?
    Mr. Boardman. Certainly. We looked at that and we found 
that there really wasn't a difference in the kind of risk that 
you were dealing with with that random placement, especially 
when you look------
    Mr. Barrow. Well, let me tell you the difference that I 
foresee, because I can see, right offhand, a difference between 
a lot of mishaps involving trains moving around in the yard at 
4 and 5 miles an hour. The zone of people responsible for the 
mishaps are the people exposed to the risk. They are trained to 
prevent the mishaps. They are the ones who face the 
consequences if there are any mishaps, and the mishaps are much 
smaller in proportion because you have got minor things 
happening in the same place at minor speeds.
    You contrast that with incidents that occur at track speed 
out in dark territory in the middle of the night, the risk of a 
bigger spill is much greater, the universe of people who are 
affected by the risk is altogether different. You are not 
talking about folks who are trained to prevent it and trained 
to respond to it, you are talking about innocent bystanders 
dying in their sleep.
    I just cannot understand how there is--of course, if we had 
that kind of thinking, that because you have got a new kind of 
risk created by this policy, as opposed to the old kind of risk 
we are trying to eliminate, we would never have seatbelt laws. 
There are people who are actually injured as a result of 
seatbelt use.
    But the number of people who are saved by seatbelt use is 
vastly larger. The risk of preventable harm is greatly reduced 
by a deliberate policy of seatbelt use. And this Government 
promoted that through laws that encourage folks to assume the 
much smaller risk of being hurt by a seatbelt in exchange for 
the much greater benefit of not being harmed by not wearing 
seatbelts. When we spread that across the whole universe of 
people exposed to risk, that is the benefit, the public safety 
benefit we get out of that.
    I have a hard time understanding how the FRA can think that 
what happened to the folks at Graniteville is the price we 
ought to pay in order to minimize the number of------
    Mr. Boardman. Well, the FRA did not say that, Congressman.
    Mr. Barrow.--to minimize the much smaller risk of harm to a 
much smaller zone or universe of trained professionals who are 
trained to prevent much smaller mishaps from happening and who 
are trained to respond to it. Seems to me that is a hell of a 
policy.
    Mr. Boardman. I understand, and I will get you that study.
    Mr. Barrow. Yield back.
    Mr. LaTourette. I thank the gentleman.
    Ms. Norton.
    Ms. Norton. Thank you, Mr. Chairman.
    Mr. Chipkevich, I just want to confirm that on April 10th 
your agency preempted D.C. law and gave 20 days to appeal. What 
is the status of that, has there been any appeal of that?
    Mr. Chipkevich. No, ma'am, that would not be our agency.
    Ms. Norton. That wasn't your agency?
    Mr. Chipkevich. Pardon me?
    Ms. Norton. That was not your agency?
    Mr. Chipkevich. No, ma'am.
    Ms. Norton. Oh, no, I am sorry, you are the National 
Transportation Safety Board. I am sorry.
    Mr. Chipkevich. Yes, ma'am.
    Ms. Norton. Mr. Boardman, do you know the status of------
    Mr. Boardman. Congresswoman, I was just checking. I think 
that is FMCS. Do we know the--we do not know.
    Ms. Norton. As I indicated in my opening statement, I am 
also a member of the Homeland Security Committee, and I 
appreciate that we are discussing liability here, but I suppose 
the fact that I represent the District of Columbia and am on 
that Committee gives me a notion of preemption as well. It is 
less preemption of law than preemption of accidents and risks.
    I recognize the difficulty posed by the increasing toxicity 
of what you are forced to carry, what railroads are forced to 
carry, and the risks from terrorism. May I ask, Mr. Boardman, 
if hazardous substances are still being transported within two 
and a half blocks of the Capitol itself?
    Mr. Boardman. We would have to defer to TSA to answer that 
question to know specifically whether that is occurring.
    Ms. Norton. You do not know whether or not--you, the 
Railroad Commission, do not know, do not have any information--
----
    Mr. Boardman. Congresswoman, it is part of their security 
program, and we do not talk about their mitigation measures.
    Ms. Norton. So you know but will not talk about their 
mitigation?
    Mr. Boardman. I am not permitted to talk about it. TSA 
should be the one that answers that question.
    Ms. Norton. Well, you can imagine the position it leaves 
those of us who come to work every day in the Capitol and those 
of us who happen to live in this region, including 200,000 
residents who cannot find out even at a hearing whether or not 
these substances were still traveling close to the monumental 
core. The notion that that--we had information, for example, to 
the effect that that was not the case, but you are saying you 
cannot confirm that that is the case?
    Mr. Boardman. Congresswoman, we can give you that 
information, but not in a hearing open to the public. We can 
provide that information.
    Ms. Norton. I very much appreciate that that might not be 
information you could give here. How might I be assured of 
getting that information? I also have no reason to make public 
information that is secure information. I am a member of 
Congress. I am simply trying to find out.
    Mr. Boardman. I understand absolutely. And I will make sure 
that------
    Ms. Norton. You will personally make sure I get the 
information?
    Mr. Boardman. Yes.
    Ms. Norton. Mr. Hamberger, I was interested in your 
testimony where you took on some of these issues------
    Mr. Hamberger. I am on the next panel.
    Ms. Norton. Sorry?
    Mr. Hamberger. I am on the next panel.
    Ms. Norton. Sorry?
    Mr. Hamberger. I am not on this panel, I am on the next 
panel.
    Ms. Norton. Well, who--you are on the next panel? I will 
have to wait for you? All right, I will do that. I will do 
that.
    Let me ask you, Mr. Boardman, the difficulty created by the 
suit from a local jurisdiction trying to take trains and 
reroute them surely points up an issue of national concern. I 
indicated to you that I certainly didn't see how people could 
reroute trains where tracks had been laid long ago. We, of 
course, have discussed liability and ways to spread the 
liability. That is very important. And you are taking actions, 
as are the railroads.
    This is a very old industry, old tracks, lots of problems 
just to keep the tracks in working order. Rerouting always 
seemed to me to be an impossible solution. Perhaps some 
rerouting within the capital only, but that would be a one of a 
kind matter because it is the capital of the United States, and 
these trains are routed so close to the monumental core. So 
that certainly wasn't a solution.
    Have you thought about--given the fact that this is a chess 
game where you cannot move the pieces, have you thought about 
ways, short of rerouting, to mitigate the harm? I am talking 
about ways like when such substances travel, for example--I 
don't know, you tell me. Since you are so closed in, so fenced 
in by the nature of the industry you regulate, the railroads 
themselves are fenced in because they have to carry everything, 
and yet are placed in this position. I am astounded that we 
have not taken action of the kind we have taken to protect the 
nuclear industry, for example.
    But short of impossible solutions like rerouting, given you 
have the cards you have been dealt, and considering that these 
trains necessarily now travel through the most densely 
populated areas of our Country, are there ways, short of 
rerouting, to mitigate the danger to these populations?
    Mr. Boardman. Congresswoman, we have, in the work that we 
have done--and I spoke a little bit about in my opening 
statement--the work that we have done with the couplings and 
the work we have done with head shields on the tank cars, on 
the work that we have done on our new thermal coating on the 
tank car itself, those kinds of things have reduced the risks 
to what we need to do substantially. We have also------
    Ms. Norton. Does that mean that, for example, if there were 
an attack on a hazardous substance car--because, you know, we 
have been shown these scenarios--that you think that the 
coating and the reinforced cars would protect------
    Mr. Boardman. We already know that the particular 
insulation coating for cars that would be on fire is working. 
We don't have a catastrophic failure of the car itself because 
of that technological change. That has already been proven, we 
know that. There is another coating that exists that we are 
testing at this point in time, that has been used in the war 
zone, to try to minimize the impact on the tank car itself, and 
we are actually looking at how railroads--on our new rule that 
we are working with PHMSA on--might reroute, frankly, to reduce 
the risks that are out there today along with what the Chairman 
brought up earlier, on having a 333 conference of the chemistry 
industry and the railroads to try to reduce the risks.
    You certainly have pointed out to us today an understanding 
of how difficult this problem is, and we do appreciate that. We 
understand and value every life that is out there today, 
whether it is in a rural area or whether it is in an urbanized 
area, and we are taking every step that we can to look at how 
we would reduce the risk.
    Ms. Norton. Well, finally, I think that the railroads are 
in an inherently impossible position. I really think that the 
Homeland Security Committee and the research that only a 
national government can do can help us deal with and that the 
oldest transportation industry in our Country, and one which I 
think is far more vulnerable to attack than, for example, the 
industry we have fixed because it was attacked. I regard the 
North Dakota and South Carolina accidents as a shot across our 
bow, and it tells us, of course, that accidents are going to be 
the problem that we have to be very careful with.
    But the notion, when we consider the fallout in lives and 
in communities from those accidents ought to make us work very 
closely with the Homeland Security Committee to get a national 
approach so that we can assure people in metropolitan areas 
that we are working very fast on this problem. I mean, we are 
working very fast on problems like Avian flu, where we can't 
find any birds in this Country and we can't find any way that 
the disease is passed on, because we want to prevent the 
disease. We have had these accidents. We have got to do more to 
speed up protection of this industry.
    Thank you very much, Mr. Chairman.
    Mr. LaTourette. I thank the gentlelady.
    And Administrative Boardman and Mr. McGuire and Mr. 
Chipkevich, I thank you very much for your testimony. I thank 
you for answering our questions and, again, I apologize for the 
delay that occurred within the votes. But you go with our 
thanks.
    Our Ranking Member, Ms. Brown, had a problem with her 
schedule and she will be joining us later, but she mentioned to 
me before she left that she may have a couple additional 
questions, and I will have her submit them, and if you could 
get back to us, we would appreciate it. But you go with our 
thanks. Thank you very much.
    In our third panel this afternoon we will hear from Mr 
Thomas D. Simpson, who is the Executive Director of the Railway 
Supply Institute; Mr. Thomas Pontolillo, who is the Director of 
Regulatory Affairs with the Brotherhood of Locomotive Engineers 
and Trainmen; Mr. Richard F. Timmons, who is the President of 
the American Short Line and Regional Railroad Association; and, 
last, Mr. Edward Hamberger, who is the President and Chief 
Executive Officer of the Association of American Railroads.
    I want to thank all of you for coming, and we look forward 
to your testimony.
    Mr. Simpson, we would like to hear from you first.

TESTIMONY OF THOMAS D. SIMPSON, EXECUTIVE DIRECTOR-WASHINGTON, 
   RAILWAY SUPPLY INSTITUTE; THOMAS PONTOLILLO, DIRECTOR OF 
   REGULATORY AFFAIRS, BROTHERHOOD OF LOCOMOTIVE ENGINEERS; 
RICHARD F. TIMMONS, PRESIDENT, AMERICAN SHORT LINE AND REGIONAL 
   RAILROAD ASSOCIATION; AND TRAINMEN; AND EDWARD HAMBERGER, 
   PRESIDENT AND EXECUTIVE OFFICER, ASSOCIATION OF AMERICAN 
                           RAILROADS

    Mr. Simpson. Thank you, Mr. Chairman. Good afternoon. Mr. 
Barrow, Ms. Norton. I am pleased to be here.
    My name is Tom Simpson. I am Executive Director of the 
Railway Supply Institute. I am here on behalf of the RSI 
Committee on Tank Cars, which has represented this industry for 
more than 50 years. The RSI Committee on Tank Cars represents 
companies that manufacture virtually all the tank cars operated 
in North America and also own, manage, and full service lease 
180,000 tank cars. We are approximately 70 percent of the 
Nation's tank car fleet.
    In 1970, we joined with our partners at the Association of 
American Railroads to create the Railroad Tank Car Safety 
Research and Test Project. The mission of the project is to 
collect and analyze data received to the performance of tank 
cars and derailments, and to use those data to support research 
to improve tank car safety. The Federal Road Administrator did 
an excellent job of outlining the improvements we have made in 
tank cars over the years because of the safety project. Since 
1970, RSI and AAR have invested more than $20 million in the 
safety project, while car owners have invested more than $700 
million in safety improvements to the tank car fleet.
    These joint efforts have helped make rail the safest mode 
for transporting the vital raw materials our society demands. 
Approximately 1.7 million carloads of hazardous materials are 
transported by rail throughout the United States each year and 
99.998 percent of these shipments reach their destination 
without a release caused by an accident.
    The reduction in accidental releases of hazardous materials 
has been driven in part by continuous improvements in tank car 
design and materials, and the RSI Committee on Tank Cars fully 
supports continued efforts to improve the tank car package.
    I have four specific points I would like to make this 
afternoon. First, an important step towards improving rail 
safety is for PHMSA and FRA to take a more active leadership 
role in the effort to improve safety. PHMSA and FRA are 
uniquely positioned to ensure an open, transparent, unbiased, 
and comprehensive process is used to create any new safety 
standards.
    Secondly, we believe rail safety improvement efforts should 
be based on a comprehensive analysis of rail hazmat risks that 
looks at all aspects of the rail system. Safety improvement 
efforts should explore railroad operating practices, shipper 
commodity handling practices, emergency response procedures, 
and tank car design improvements.
    Thirdly, any changes to tank car design should be driven by 
sound science and engineering. The recently initiated AAR Tank 
Car Committee dockets intended to reduce the probability of 
release of chlorine or anhydrous ammonia are first steps 
towards improvement in the safety of shipping those materials. 
The work of those task forces must be coordinated with the 
critical research FRA has undertaken at the direction of 
Congress on derailment forces and steels as passed in SAFETEA-
LU.
    The results of these studies are critically important 
because they provide facts about the real-world conditions in 
which the cars operate, and they should be completed prior to 
deliberation on any future car designs. We are concerned that 
the design specification developed as a result of the current 
accelerated AAR docket approach will not take this research 
into account and may be superseded or contradicted once this 
additional FRA research data is evaluated.
    Fourth, initiatives to improve security of shipping 
hazardous materials by rail should be coordinated between dot 
and DHS to ensure prioritized action items can be efficiently 
implemented. Funds for research and implementation of 
technology to reduce tank car vulnerability should be granted. 
As the Administrator also indicated, government and industry 
are currently evaluating materials that may prevent the 
penetration of a tank car or, alternately, to seal a commodity 
leak if the tank car is penetrated by a terrorist. If it is 
decided that such materials should be applied to tank cars, 
tank car designs would need to be changed to incorporate the 
additional weight and thickness of the material.
    We are prepared to immediately work with Congress, the 
Federal Government, railroads, shippers, and others to ensure 
that the transportation of hazardous materials continues to be 
done safely.
    I would be glad to answer any questions.
    Mr. LaTourette. Thank you, Mr. Simpson, very much.
    Mr. Pontolillo, we would like to hear from you.
    Mr. Pontolillo. Good afternoon, Mr. Chairman, Mr. Barrow, 
Ms. Norton. My name is Tom Pontolillo. I am Director of 
Regulatory Affairs for the Brotherhood of Locomotive Engineers 
and Trainmen, which is a division of the Teamsters Rail 
Conference. And on behalf of the 33,000 BLET members and 70,000 
Rail Conference members, and, really, the 175,000 men and women 
who serve America working for the Nation's railroads, I thank 
the opportunity to address the Subcommittee.
    For the BLET, this hearing is personal and carries special 
meaning, because the three TIH accidents that we have been 
discussing--Minot, Macdona, and Graniteville--claimed the lives 
of two BLET members: Heath Pape in Macdona and, of course, 
Chris Seeling in Graniteville. So we continue to have an 
abiding interest in improving safety of all hazardous material 
shipments.
    The reality is that our lifestyle depends upon chemicals 
that end up in a very benign form, but during transportation 
can be very hazardous, and it is all our duty in the industry 
to make sure that we work together to prevent future tragedies.
    I want to touch briefly on five subjects that are of 
interest to the men and women on the ground level. One is 
security. Not to belabor the point--as has been mentioned by 
Ms. Norton and was also mentioned earlier by Mr. Simmons--the 
High Alert report that the Teamsters put out shows a troubling 
lack of effort on the part of the industry to stay on top of 
security affairs, and, indeed, the CDC, in January of 2005, 
issued a report warning that the consequences of an acute 
hazmat release could result in environmental damage, severe 
injury, or death.
    Last Wednesday, as I began preparing this testimony, I 
heard on the radio the Akron, Ohio Beacon Journal was reporting 
that a 17 year old and a 16 year old had admitted derailing a 
train consisting of two locomotives and 103 cars by sticking 
ties on the tracks near Barberton, which is an Akron suburb. 
Fortunately, that was a coal train, it occurred in May of this 
year, but the consequences could have been much more serious.
    On the security front, rail labor has been proud to support 
H.R. 2351, which was sponsored by Mr. Oberstar, and we will 
continue to support security legislation in the future.
    The industry currently suffers from severe capacity 
problems. Many lines are running at or near capacity and there 
is an ever-increased demand for rail service, particularly in 
the coal fields. Productivity is up over 500 percent since 1978 
and, as a result, staffing levels in the industry are lower 
than they have ever been before. This creates stresses on 
equipment, on track, and, most importantly, on the human 
resources that operate America's railroads.
    Twelve to 16-hour days for many railroad workers are 
becoming commonplace and, in fact, internal data prepared by 
one Class I railroad concerning hours of service for train 
crews for the first five months of this year shows that 
railroad averaged over 105 crews a day that worked in excess of 
15 hours--this is train and engine crews--and about three crews 
a day over 20 hours.
    The industry's solution has been to cut back more at the 
bargaining table; they want to take all the shop crafts and 
make a composite mechanic out of, subcontract out work, and 
they want to take their operating crafts and reduce them to one 
person. And I mention that here because Railway Labor Act 
disputes sometimes end up on your doorstep for resolution, but 
there is a safety aspect to staffing.
    And there is also a training aspect at this point in time 
because, in addition to the industry operating at or near 
maximum capacity, this is also the period when the beginnings 
of the baby boomer generation of railroaders is retiring. So 
there is a whole bunch of new people coming in that need to be 
trained. We have had serious problems with training on the part 
of the industry in the past. That has been no secret.
    Sometimes it seems like it is driven more in the need to 
get people out on the property than it is to make sure they are 
well equipped to do the work, and hazmat rail labor has taken 
the burden on its own shoulders. Over the last 15 years, a 
program that we have at the George Meany Center in Silver 
Spring has trained over 20,000 railroad workers, and next month 
we are going to institute the first training in radioactive 
material transportation, and we are unaware of the railroad 
industry providing any of our members with this stuff. SAFETEA-
LU has thought of us in helping to provide funds, and we 
appreciate that.
    Very briefly, in accident causations, we have heard about 
human factors accidents. That is only one piece of the puzzle. 
We believe all accidents need to be studied, and beyond the 
primary cause. We believe there should be root cause analyses. 
There is now an analytical taxonomy to provide that. Positive 
train control will provide a help but, as NTSB said, really, it 
is an overlay What we really need in the short term are switch 
protection and switch position detection for dark track as we 
start to evolve in.
    And, lastly, it is important that the Subcommittee consider 
the fact that in the next few years the numbers and amounts of 
radioactive shipments, spent nuclear fuel and high level 
radioactive waste, will increase tremendously as storage 
facilities are opened, and current regulations need to be 
looked at thoroughly. For example, railroad workers, my 
understanding is, currently can be exposed to greater radiation 
than nuclear industry workers. That needs to be looked at along 
with monitoring systems.
    FRA has done a study and recommended that these be 
dedicated trains, and we support that conclusion 100 percent. 
And we are participating in the DOE Transportation External 
Coordinating Working Group, but that is going to be the next 
new issue in the transportation of hazardous materials.
    And having said that, I appreciate the extra time, Mr. 
Chairman. I would be pleased to take any questions.
    Mr. LaTourette. I thank you, Mr. Pontolillo.
    General Timmons, welcome to you, and we look forward to 
hearing from you.
    Mr. Timmons. Good afternoon, Mr. Chairman, and thank you 
for the opportunity to talk on Class II and Class III railroad 
issues, and particularly the status of hazardous materials 
movement in the small railroad industry.
    As this Committee is well aware, the short line industry 
operates over approximately 50,000 miles or right-of-way in 49 
States, with 23,000 railroaders who move freight each day. 
Carloads of hazardous materials, the vast majority of these 
products are not toxic by inhalation, and short lines are by no 
means the primary mover of these commodities across the 
Nation's transportation system. But for the communities that we 
do serve, these products are essential to the health and well 
being of their citizens and are only available through freight 
rail movement.
    The short line and regional record of hazmat transportation 
is excellent. The U.S. Department of Transportation Hazardous 
Materials Information System indicates, for 2004 and 2005, that 
no short line railroad has been responsible for any fatalities, 
injuries, or hospitalizations resulting from a hazardous 
materials release. Since 1973, FRA has recorded only one 
hazardous material related fatality on a short line, and that 
fatality involved an unauthorized rider on a freight train.
    Needless to say, we take this matter very seriously and we 
continue to strive for improvement and reduced exposure for 
crews, communities, and responders. We believe our commitment 
to educate our personnel and maintain rigorous adherence to 
industry safety and technical standards has facilitated these 
solid statistics.
    For short lines, several areas are essential to the safe 
and efficient movement of hazardous materials, the first of 
which is that the infrastructure must be sound. Rail, roadbed, 
bridges, and signals must be continually improved. The Federal 
tax credit you approved in 2004 has allowed short lines to 
increase investment, which is improving our track structure and 
enhancing our network. As I have discussed with this Committee 
in the past, the tax credit is accomplishing exactly what was 
intended, and we hope that Congress will see fit to extend it 
before it expires at the end of next year.
    Second, car availability is critical. Much of the current 
equipment is aging quickly. Reliable and robust hazmat cars 
must be up to the challenges of long and hard service and be 
reliable under all circumstances..
    Third, tracking hazmat shipments is essential in the event 
manmade or natural disasters threaten to expose the contents of 
these cars to emergency responders or unwary citizens. A 
recently introduced computer tracking system now gives the 
short line industry the ability to track and report shipments 
by commodity, by railroad, and location in real-time to 
computer terminals in the FRA, AAR, and the Short Line 
Association offices. This is an area of weakness for us in the 
past, and we have devoted considerable time and effort to 
addressing this need. The new system, known as Freightscope, 
gives us the ability to provide on-demand information very 
similar to Class I operations.
    Fourth, security must be a part of every day operations and 
procedures in a more comprehensive way than ever before. 
Reporting, tracking, communications, rapid response, and 
preparation for a terrorist strike or accident must be part of 
what we do and train for each day. Short lines have worked 
steadily since 9/11 to prepare for the unexpected. I will not 
repeat here, but have listed in my written statement, nine 
activities that the Association and its members have engaged in 
since 9/11.
    Certainly, there is much more that can and should be done, 
and I know determining the next steps are part of what is 
driving this hearing today. The short line railroads stand 
ready to work with the Congress and the industry to take 
whatever next steps are deemed appropriate and necessary. And 
at the appropriate time I would be happy to answer any 
questions from the Committee members.
    Thank you very much, sir.
    Mr. LaTourette. Thank you very much.
    And the last witness on this panel is Mr. Ed Hamberger. Mr. 
Hamberger, thank you for coming to see us, and we look forward 
to hearing from you.
    Mr. Hamberger. Mr. Chairman, thank you once again for the 
opportunity to appear before this Subcommittee. And on behalf 
of the AAR, I appreciate the opportunity to discuss rail 
transportation of hazardous materials.
    At the last hearing, which seems like just yesterday, you 
observed that I have a tendency to say that I have five 
messages. Today, Mr. Chairman, I have two, two messages. The 
first is that the railroads take very seriously their 
responsibility to transport safely and securely the hazardous 
materials entrusted into our care. We have an excellent record 
in that regard. Nonetheless, accidents do happen, and part of 
the first message is extending to the family, friends, and 
victims of the accidents that have occurred our regret and 
sympathy.
    The second message is that the current environment for the 
rail transportation of highly hazardous materials, especially 
the so-called toxic-by-inhalation hazards (TIH) is untenable. 
Or, as Congresswoman Norton so eloquently put it just a few 
minutes ago, inherently impossible. The Federal Government 
requires railroads to transport these shipments whether they 
want to or not.
    As Wick Moorman, Chairman of the AAR Board of Directors and 
CEO of Norfolk Southern Corporation, points out in a statement 
filed with this Committee, railroads do not make these highly 
hazardous materials, railroads do not use these highly 
hazardous materials, and railroads do not make enough money 
transporting these materials to justify the risk they take. 
Yet, unlike other companies, even other transportation 
companies, railroads cannot just say no to these materials.
    And I take respectful difference with your opening 
statement, Mr. Chairman, when you said we all benefit when 
railroads transport these materials. I respectfully suggest to 
you that railroads do not benefit from the current legal 
framework governing these shipments. Every time a railroad 
moves one of these shipments, it faces potentially ruinous 
liability.
    As Mr. Beardsley, of Aon, will testify--at least my 
interpretation of his testimony--the next tragic accident could 
well spell the end of insurance availability, not just cost, 
but availability, for the railroads to move these materials. 
And, of course, this would have a collateral impact on our 
ability to move every carload, not just chemicals.
    Railroads face these huge risks for a tiny fraction of 
their business. Shipments of TIH, for example, constitute only 
0.3 percent of all rail carloads. Still, history demonstrates 
that railroads can suffer enormously costly judgments even for 
accidents where no one gets hurt and railroads do nothing 
wrong. If this risk is not limited, railroads will be forced to 
seek an elimination of their government mandate to carry highly 
hazardous materials or to challenge its applicability with 
regard to TIH and other highly hazardous materials.
    If the Federal Government is going to continue to require 
railroads to transport these materials, it must address the 
company risk it forces railroads to assume. Congress can do 
this in at least two ways. One is to create a statutory 
liability cap for the railroads similar to the one that applies 
to Amtrak, which I believe is $200 million per incident.
    Or, two, Congress could also enact a Price-Anderson-like 
solution which limits the liability of a company from an 
incident involving the release of nuclear material and provide 
for a fund to cover any damages in excess of that amount. Thus, 
precedent does exist where public policy needs demand spreading 
the risk. And I would emphasize that in both of these proposals 
railroads would have ``skin in the game.''
    In the meantime, railroads continue to support prompt, bold 
action by all stakeholders to further reduce the risks 
associated with the manufacture, transport, and use of highly 
hazardous materials. I suggest a number of actions in my 
statement. Let me just emphasize several here.
    One, and as is exemplified by the presence of Chief Bell on 
the next panel, one of our highest priorities is to provide 
emergency response information and training to the emergency 
responders in the community in which we operate. It is my 
understanding that Chief Bell and his colleagues responded 
valorously and admirably during the accident in Graniteville 
last year. We train 20,000 emergency responders each year, both 
on our own and in cooperation with the American Chemistry 
Council.
    Two, we have a very rigorous training program, 
notwithstanding what others may believe. And I would like to 
submit for the record, Mr. Chairman, the hazardous materials 
training delivered at the Norfolk Southern Training Center in 
Macdona, Georgia, to every employee of Norfolk Southern. It is 
similar to an example of what each of our Class I railroads 
does around the Country.
    Number three, we have talked and you have seen the new 
technologies we are deploying trackside to try to have better 
predictive maintenance to eliminate an accident before it 
happens.
    Number four, we are moving aggressively as an industry into 
train control technology, which would have, again, predictive 
enforcement: stopping a train before it exceeds its authority.
    And, five, another action that would result in tremendous 
long-term safety gains, is rail industry effort to 
significantly improve tank car safety. Our Tank Car Committee 
is evaluating a new standard for both chlorine and anhydrous 
ammonia tank cars. Based on research from the University of 
Illinois, we believe that the probability of a release, if 
there is an accident, could substantially be reduced. The 
Committee is also examining whether the phase-out of tank cars 
constructed of non-normalized steel should be accelerated.
    And that was number five, but I do have one more, Mr. 
Chairman, number six, and that is to accelerate the development 
and use of inherently safer technologies as substitutes for 
highly hazardous materials. As noted in a just released report 
by the National Research Council, ``The most desirable solution 
to preventing chemical releases is to reduce or eliminate the 
hazard where possible.''
    Likewise, in January, the Government Accountability Office 
recommended that the Department of Homeland Security ``work 
with EPA to study the advantages and disadvantages of 
substituting safer chemicals and processes at some chemical 
facilities.'' Railroads agree and strongly support efforts 
aimed at finding and utilizing product substitutes or 
inherently safer technologies for hazardous materials, 
especially TIH.
    In closing, Mr. Chairman, we cannot continue to transport 
highly hazardous material under the conditions that currently 
exist. The inordinately high risks now shouldered by the 
railroads must be dramatically reduced both through improved 
safety and the provision of reasonable liability protection. 
All participants in the hazmat logistical chain, working 
together and working with appropriate government agencies, must 
accept responsibility to take a comprehensive, holistic 
approach to hazmat safety.
    If railroad risks are not reduced, Congress should relieve 
railroads of their mandate to carry TIH and other highly 
hazardous substances. We should be permitted to decide for 
ourselves whether to accept, and at what price to accept, such 
materials for transportation.
    Thank you for the opportunity to testify on this critical 
topic, and I apologize for running long.
    Mr. LaTourette. I thank you, Mr. Hamberger. And without 
objection, your materials will be made part of the record. And 
just so you know that I am paying attention, you had six 
points, but you tried to confuse us by saying you only had two, 
and you made the six subparts of the second point.
    Mr. Hamberger. I should have known better, sir.
    Mr. LaTourette. And let me start with you. Obviously, from 
your testimony and observation, that if the transportation of 
these materials was voluntary, it really wouldn't make a lot of 
business sense for the railroads to engage in that. But if it 
is the position of the railroads that the shipping rates for 
hauling chlorine, for example, don't really reflect the 
liability exposure, why don't the railroads just raise the 
rates for shipping?
    Mr. Hamberger. Well, that would be one approach, but when 
there are uncapped liabilities, you can't charge enough. That 
is to say, the insurance--and I think what we will hear from 
the representative from Aon is that there is a limit on 
liability insurance that can be achieved--not only here, but 
through the reinsurance markets in London--and the overall 
damages that could be assessed could far exceed that cap, and 
we are talking about 100,000 shipments a year. You just can't 
charge that much.
    Mr. LaTourette. Let me ask it a different way. I think I 
talked to the Administrator about coercion. And I am not a 
chemistry guy--that is why I went into politics--but it is my 
understanding that if you, rather than using chlorine gas at a 
water treatment plant, for instance, you could use something 
called sodium hypochloride. If the railroads took the position 
that they were going to charge as much--a lot more for hauling 
chlorine gas, don't you think that there would be some 
adjustments in behavior, and perhaps we would see safer 
materials being shipped to water plants, as opposed to chlorine 
gas?
    Mr. Hamberger. As I know you will understand and 
appreciate, we do not talk about rates at the AAR. So I can't 
really address that directly, other than to say no matter what 
the cost is, you know, we are concerned that you could not 
charge enough to cover an unlimited liability.
    Mr. LaTourette. Let me ask you this, because you used the 
``skin in the game'' reference, and Mr. Durbin is going to be 
on the next panel and it has already been brought up in some of 
the questions. The argument is being made that if railroads are 
absolved or their liability or their exposure is reduced, that 
would be a disincentive to safety, that they would have no 
incentive to carry these materials safely. Do you have a 
response to that?
    Mr. Hamberger. Well, I think on several levels. Number one, 
it is good business to travel--to do things safely, and so that 
is why we are focused on safety, we are focused on the safety 
of our employees, the communities in which we operate. So I 
don't believe there would be any diminution in emphasis on 
safety. Number two, the proposal in the testimony does not 
absolve all liability, so there would be ``skin in the game.''
    I guess I will take this opportunity to express my surprise 
at testimony from the American Chemistry Council, where they 
actually oppose any limitation on liability because they 
believe it would act as a disincentive for railroads to act 
safely, while at the same time the American Chemistry Council 
is a founding member of the American Tort Reform Association, 
whose Web site talks about how tort liability is not a driver 
for corporate responsibility.
    We also have members of that ATRA, and we also believe that 
tort liability is not a driver of corporate responsibility for 
safety and security, and, actually, we believe it about them 
too. It would be nice if they believed it about us.
    Mr. LaTourette. Thank you.
    Mr. Pontolillo, we were talking about the Graniteville 
accident a little earlier and the observation from the National 
Transportation Safety Board relative to breathing equipment. 
Does your organization have an opinion or view as to whether or 
not additional safety equipment should be placed in the 
locomotive?
    Mr. Pontolillo. We can see a value to it, but, I think as 
Administrator Boardman said this morning, it brings with it a 
bunch of subissues as to type, and you need to make sure that 
there is testing and inspection and stuff. We do, but we 
believe that that is just one part of an overall picture, 
because while that provides protection for the crew, it 
provides precious little for the community at large. So we do 
favor that, but within the context of a much broader approach 
designed to reduce accidents and, when there are accidents, to 
reduce breaches in the tanks.
    Mr. LaTourette. Thank you.
    Mr. Simpson, how much does a tank car cost, roughly, and 
how long does it last when it is in service?
    Mr. Simpson. Well, like Mr. Hamberger, we don't talk 
prices, but I can provide a--for the record, I can survey my 
membership and give you a range of prices. The life of a tank 
car is approximately 40 years.
    Mr. LaTourette. Forty years? And you talked a little bit, 
and I know some of this you can't talk about as well, but you 
talked about the self-sealing technology. I always think of it 
sort of like Bars-leak for your radiator, I think. Without 
going into the specifics, well, can you be as specific as 
possible and tell us a little bit about that technology?
    Mr. Simpson. We are working with DHS and the railroads and 
shippers to identify and look at materials that could be 
applied to the side of tank cars that would either absorb a 
rifle shot or repel a rifle shot. They are currently 
polyurethane type products. There was a story in USA Today last 
week about truck liners, truck bed liners that are being used, 
and this kind of material has been used in Iraq on Humvees, and 
we are looking to see if it is applicable to use on tank cars.
    Mr. LaTourette. OK. I know that when the District of 
Columbia was looking at having their ban on hazardous materials 
on the CSX lines through the District, a well-meaning 
councilwoman came in to meet with me and brought a picture of a 
tank car on a bridge that we could probably see if we walked 
out the front door. Is this technology designed to deal with 
that type of terrorist exposure? That is what you are hoping to 
get at?
    Mr. Simpson. We are hoping for either a deflection or an 
absorption.
    Mr. LaTourette. OK. Thank you very much.
    Mr. Barrow.
    Mr. Barrow. Thank you, Mr. Chairman.
    Mr. Hamberger, I certainly agree and understand the 
predicament that the industry is in. The level of risk is 
unbelievably high, and we are just one incident away from 
railroads having basically to bet the company every time they 
roll down the track, and I understand we have got to address 
that in some way or another. But it does seem to me that if the 
risk is that high and that great of continuing to do things the 
way we are doing them now, it just makes it that much more 
important that we try to minimize the risk in every way we can.
    Mr. Hamberger. Yes, sir.
    Mr. Barrow. So I would like for you to weigh in with me a 
little bit on the subject of car placement. And I think it is 
helpful to review the facts of the Graniteville incident just 
to put this in context.
    As I understand it, there were forty-something cars in that 
train consist. The three or so cars that had hazardous material 
were in the front fourth, cars like six through nine, something 
like that.
    Mr. Hamberger. Nine through eleven, I think, but yes.
    Mr. Barrow. The last one of those was the only one to have 
suffered a puncture. And as was explained earlier on, it was 
among the toughest that are currently in use.
    Now, if Norfolk Southern, in that incident, had been 
following the practice that had been recommended by the FRA way 
back in 1992, the policy that is still urged and recommended by 
the NTSB today, all other things being equal--exactly the same 
human error, exactly the same outcome, exactly the same 
collision, exactly the same forces--but if those cars had been 
in the back third of the train, anywhere in the back half of 
the train, there would have been no puncture at all, because 
the last train to actually come off the rails at all was like 
12 or 13; and they were off the rails, but they were standing 
up and weren't hurt at all.
    So all of the damage of this track speed collision with a 
standing locomotive on a side track, all of this was absorbed 
in the crumple zone of the front end of the train. And if we 
just had those cars toward the rear, just in the back half of 
the train, nobody would have died; and we had nine people who 
died just about as ghastly a death as you possibly can. And, of 
course, if it had happened not just over the line in Mr. 
Gresham Barrett's district, in his rural area, but downtown 
Augusta, in my district, it would have been untold numbers of 
people dying the most ghastly death that you can imagine.
    So my question is the railroads are following a policy, 
whether it is dictated by Federal regulation or not. It is 
either a policy of random placement--put them where you get 
them, where you can--or it is a policy of deliberate placement. 
One concern I have got is that the Federal Government is 
understood to weigh in and basically say random is best. That 
will immunize you all from any liability from following this 
Federal mandate of random, as opposed to deliberate.
    But if we do what most folks, put the baby in the back seat 
of the car because it is safer than putting the baby in the 
front seat of the car, if we do what most folks agree is the 
right thing to do, and if the claims of--if the practice of 
random isn't preempted from State tort liability, railroads are 
running an incredible risk of having someone say in a jury case 
someday, if it has been litigated to a fair thee well that this 
claim isn't preempted, that they are going to have to pay a 
huge liability, when it could have been avoided if they had 
adopted the smarter policy.
    Wouldn't it help the railroads if the Government were to be 
the bad guy in this picture and come in and mandate the best 
standard, the best management practice, to mandate a policy of 
deliberate placement, one that you can work with, one that your 
members can actually handle and deal with, but impose the cost 
uniformly so no railroad is going to be working at a 
competitive disadvantage compared to others by incurring the 
extra expense, the marginal cost of stepping out and going 
front with a policy of deliberate placement? Wouldn't it be 
best for everybody if the Government does what sometimes only 
the Government can do, and that is be the heavy in the picture 
and make everybody do the right thing at the same time?
    Mr. Hamberger. Let me try to respond as best I can. Number 
one, I do not believe that the word ``random'' was quite right. 
That is to say, there are rules and regulations, and one of the 
modules from this Norfolk Southern training is switching and 
train placement charts. That is to say, certain materials are 
not supposed to be placed next to each other depending on their 
volatility, and certain kinds of carloads are not supposed to 
be next to tank cars. So it is not an entirely random------
    Mr. Barrow. So already a standard of care is being set?
    Mr. Hamberger. There are already standards of care being 
set. I did discuss this, and I would ask your permission to 
give you a more detailed submission for the record, but as I 
understand it, there is also some concern with the railroads on 
train dynamics, that is to say, where some of these cars are 
placed based on their weight in relationship to other cars in 
the train.
    And then, third, I don't know how often this happens, but 
it does strike me, sitting here, thinking about it, that if the 
car is near the end of the train and the impact comes from that 
end, you have the reverse situation.
    Mr. Barrow. There is no question that a policy of 
deliberate placement creates a risk profile to replace an 
existing one.
    Mr. Hamberger. Right.
    Mr. Barrow. The question is one better than the other. And 
all I would offer to you is that the industry already 
recognizes some element of responsibility and sets a standard 
of care when you try and keep bad things apart from each other.
    Mr. Hamberger. Yes, sir.
    Mr. Barrow. But if you are not also applying the same logic 
toward where you are putting them on the train someday, either 
that policy is preempted by Federal law because we are putting 
our blessing on it, in which case folks are going to be hurt as 
a result of preventable injuries if the policy of deliberate 
placement actually makes more sense in more cases. And to apply 
that logic that there are some risks that you actually would 
create gets back to the seatbelt scenario; some folks are hurt 
by seatbelts, but far more lives are saved by requiring 
everybody to do the thing that is best for all concerned, it is 
that is the price you have got to pay in order to save more 
lives.
    Mr. Hamberger. I have probably said more than I know on 
this already, so if I can respond in more detail for you.
    Mr. Barrow. Well, understand this. I am trying to help you 
all.
    Mr. Hamberger. I understand that.
    Mr. Barrow. Where you all will minimize the risk, because, 
like I said, if these claims aren't preempted, you all are 
already staring down the barrel of that gun. You have kind of 
aimed it at yourself by recognizing the placement is an area of 
risk generation that you create for the bystanders.
    Mr. Hamberger. Yes, sir.
    Mr. Barrow. Thank you.
    Mr. LaTourette. Thank you, Mr. Barrow.
    Ms. Johnson?
    Ms. Johnson. Thank you very much, Mr. Chairman. I ask 
unanimous consent to submit my remarks and also to submit my 
questions. I had a couple of questions for Mr. Chipkevich, and 
I am sure I didn't get back right away. So I will submit those, 
if you don't mind.
    Mr. LaTourette. Perfect. Ms. Brown also had some questions 
that she wanted to ask of the panel. So just get them to us and 
we will ship them along. Thank you.
    Are there any questions you want to ask this panel, Ms. 
Johnson?
    Ms. Johnson. No, thank you.
    Mr. LaTourette. OK.
    Ms. Norton.
    Ms. Norton. Thank you, Mr. Chairman.
    Mr. Hamberger, I knew I would get to you soon.
    Before I do, let me ask a question, though, based on your 
testimony, of Mr. Pontolillo. The railroads have this legendary 
history: it is not I live near the railroad, it is working on 
the railroad. And if you are a connoisseur of American 
literature, I suppose as much has been written about working on 
the railroad as has been written about being a cowboy.
    Well, today we recognize that working on a railroad is to 
take your life in your hands, and we are all sitting here 
trying to problem-solve, recognizing this to be a vital 
industry. I don't even think--there was testimony earlier that 
I don't know if Mr. Hamberger was going to say, well, we are 
going to seek not to be a common carrier anymore, well, you 
know, he knows that is not going to happen. So we really have 
to just grapple with this really difficult problem.
    I want to look at South Dakota and South Carolina for a 
moment. Our good colleague testified about somebody on the 
front porch. Of those who were killed or injured, how many of 
them or what percentage of them were workers, as opposed to 
passengers or others in the community? Do you have any figures 
on that?
    Mr. Pontolillo. I don't have it off the top of my head, 
Congresswoman. In Minot, I am not sure any of the casualties, 
perhaps one was a railroad worker. In Macdona I do know that I 
believe there were three fatalities, one was a BLET member and 
I believe a couple of the other crew members were injured, 
although not fatally. And I think in South Carolina, well, 
obviously Chris Seeling, one out of the nine fatalities was a 
railroad worker, the other eight were residents of the 
community. And Mr. Seeling's train crew was injured in that as 
well.
    Ms. Norton. Are these fumes, the toxic fume issue?
    Mr. Pontolillo. Yes. And there may have been some traumatic 
injuries, I am not certain.
    Ms. Norton. The fume issue is a huge, huge issue. Of 
course, workers have some protection. I didn't know, frankly, 
until preparing for this hearing that workers could work 12 
hours a day, but now you say they work more, 16, 20 hours a 
day. You know, as an enforcement agency, I just wanted to ask 
you a word about, you know, if a worker is in fact working that 
far--first of all, you are already working more than most 
members of Congress. So if you are working even beyond that, is 
there a system for the FAA or FAR, or somebody, to simply deal 
with that issue, either through enforcement or some other 
remedy?
    Mr. Pontolillo. What has caused this particular problem for 
the train and engine crews--and you are right, Congresswoman, 
there is a 12-hour limitation for their working. In 1996 the 
Supreme Court decided that the time when you stop your train 
because your 12 hours is up, if you don't reach your final 
terminal, whatever period of time it takes to transport you--
you are not working at that point, but whatever time it takes 
to transport you from there to where you finally get released 
is not counted as on-duty time.
    Ms. Norton. So are you working, though?
    Mr. Pontolillo. You have a responsibility and an 
obligation--if, for example, the train begins to move and you 
are sitting on it, waiting for transportation, you have a 
responsibility to take action to stop the train. You are not--
you won't be required to perform any duties; you will sit there 
and wait for transportation.
    In an ideal situation, you may only have to wait 15 minutes 
or a half hour, but it is becoming increasingly common that 
crews have to wait three, four, five, and six hours for that 
transportation, and then have to be--once they finally get to 
their resting place, be prepared to work again in as little as 
eight or ten hours.
    Ms. Norton. So this is a question of just being 
transported. Then has this problem always been with us?
    Mr. Pontolillo. Since 1996, since the Supreme Court 
decision. But in the last several years it has gotten 
significantly worse for two reasons. Number one, as I mentioned 
during my testimony, the system itself is running at capacity, 
and running at capacity, it sort of--there have been shortages 
of crews in many places. And there are time when a train will 
sit sometimes with a crew on it, but sometimes on unattended, 
eight, ten, twelve hours waiting for another crew to have rest 
under the Hours of Service Act to be able to come out and move 
it. It is something that has gotten worse as time has gone on.
    Ms. Norton. Something really has to be figured out here. 
And I don't know what the answer is, but I am worried about the 
next ride that crew gets on, that is kind of sitting around, 
getting tired------
    Mr. Pontolillo. So are we.
    Ms. Norton.--without the usual kind of R&R. And an already 
hazardous situation doesn't help things. I do see the problem. 
I do see that like the problem the industry is in in the first 
place.
    All right, Mr. Hamberger, it is your time. Look, I sit on 
the Aviation Subcommittee, and I think that was easy compared 
to what this industry has to deal with. I mean, you know, we 
just spend a lot of money, deal with it on the ground, and we 
think we have fortified the industry. Of course, there was an 
attack first, and I would like to prevent that. I take your 
point, or the point of someone, about collateral, the 
collateral effect Let us not call it damage. I take it that the 
Amtrak passenger trains are often on the same tracks, use the 
same tracks as, for example, CSX and other------
    Mr. Hamberger. That is correct, yes.
    Ms. Norton. I appreciated the problem-solving nature of 
your testimony. I am going to ask you a couple questions about 
that. At page 19 you began a discussion about what government 
should not do.
    Mr. Hamberger. Yes, ma'am.
    Ms. Norton. And you have also discussed what government 
should do. Now, I have already said I understand the problem of 
rerouting. One of the things that has been suggested is this 
notion of pre-notification. I take your point that a train 
moves and the notion of saying to everybody, we are coming, we 
are coming, and we have got hazmat on board probably is, as you 
say in your testimony, difficult to implement.
    Sitting on the Homeland Security Committee, I now see the 
way in which whole regions are working together, for example, 
this region, you know, Maryland, Virginia, through which these 
trains go, sit at the same table all the time, even receive 
money together, which is then distributed among them.
    Would it not be possible, particularly if you didn't have 
to design it, for notification within a region to come, and 
then it is on the region to notify everybody else? We now have 
given them all kinds of homeland security equipment that nobody 
had before 9/11. But if nobody even knows, nobody, even the 
larger New York area or Chicago area or national capital region 
even knows that such trains are coming, then, of course, the 
whole question of notification becomes troubling to people in 
that region. That kind of point notification with 
responsibility elsewhere, wouldn't that be possible to use and 
help perhaps mitigate at least the concern in metropolitan 
regions which now can do nothing about the fact that we have to 
transport these materials with a common carrier? Wouldn't that 
mitigate the concern?
    Mr. Hamberger. Well, I think what we do try to do, and 
through our rules internally, we do work with each community in 
which we operate and let the emergency responders know what 
material is going to be coming through that community.
    Ms. Norton. You said pre-notification------
    Mr. Hamberger. You know, not by train, but we will sit down 
with the chief of police or the chief of the fire department, 
Chief Bell, and say here is the kind of material, here are the 
top 25 toxic materials, hazardous materials that are coming 
through your community; here is how we believe the emergency 
response should be handled for each one of those. We will help 
train the emergency responders.
    And we have found--and as I have in my testimony from some 
of the emergency responders--that getting notified every time a 
train comes through sort of gets lost and it is a blizzard of 
paperwork. So the idea is preparation, training, and then 
immediate notification through the Freightscope project that--
----
    Ms. Norton. So you think they come through so often that 
even regional notification or notification that today we are 
transmitting certain kinds of materials would not be 
beneficial?
    Mr. Hamberger. That is our opinion, yes.
    Ms. Norton. Let me ask you about your notions about 
liability, because I found them interesting, because you don't 
say that the railroads should not be liable or they should be 
capped and then you are on your own. You indicate that there 
should be a cap for common carriers who, after all, have no 
choice but to carry these substances, but that over and above 
the cap, in one idea, the government would pay in excess and in 
another the industry would contribute to a fund.
    Now, since you are virtually a monopoly of this, you are 
the only folks who can carry this, in effect. What I don't 
understand is why some notion of a cap with government 
accepting the responsibility, there are going to be people, as 
you indicate, that are going to be so seriously injured that 
you can't possibly charge enough so that you would be able to 
take care of all the liability. Would you or anybody else ever 
proposed either of these ideas to this Committee or anybody 
else?
    Mr. Hamberger. No, ma'am, we have not. This testimony was 
very seriously considered by the Association, was cleared with 
our board of directors, and I think individual companies have 
broached these topics, but as an association, this is the first 
time we are proposing either a cap in liability or a release 
from the governmental mandate that we haul this material.
    Ms. Norton. Let me ask you about insurance. In your 
testimony I was caught off guard, I must say, by a phrase: and 
hopefully more insurance companies would once again be willing 
to offer railroads coverage. What does that mean, that you 
can't get coverage?
    Mr. Hamberger. Number one, I am impressed and honored that 
you actually read the testimony, thank you very much, because 
it was rather long. And I would really refer and defer to Mr. 
Beardsley from Aon, but it is my understanding that the number 
of insurance companies who are willing to come forward and 
offer coverage is dwindling to just less than a handful, and 
that his testimony indicates that if there is another accident, 
that that may dwindle even further.
    Ms. Norton. Was there a fall-off of insurers after South 
Dakota and South Carolina?
    Mr. Hamberger. Yes, ma'am. And, in fact, there was some 
concern among some of our members that the availability would 
not be there, notwithstanding the cost. The cost has gone up 
depending on the company. I have heard 30, 40 50 percent. The 
retention level has been increased and there is a cap even, as 
I say, in the reinsurance market.
    And to Mr. Barrow's point, if the Graniteville accident had 
occurred in another location, or had it occurred at 10:00 in 
the morning and not 2:39 in the morning, when the textile 
factory that was there was not fully staffed or the elementary 
school a few blocks away was fortunately not in session, had 
that not been the case, I believe that the cap and liability 
would certainly have been approached, if not breached.
    Ms. Norton. Well, you can't move without some insurance.
    Mr. Chairman, that may be the most serious problem. We 
can't afford a Katrina-like situation where there are people 
who will not be able to move back because no insurer, given the 
fact that they now think that Louisiana is prone to these 
issues and that it is going to be hard to protect, so there are 
places where no insurer would go. Well, you know, the 
difference there, of course, is, as heartbreaking as it is, not 
everybody has to live in New Orleans or in that Louisiana area; 
whereas, these substances have to go, which leads me to my 
final question.
    You indicated something that interested me in my role on 
the Homeland Security Committee, and that is about research for 
substitutes for some of these materials. But, Mr. Hamberger, we 
are talking about some of the most commonly used materials in 
the United States. I mean, one of the reasons people think that 
there is an increase in incidents of cancer is just plain 
chemicals. Now, you know, many of these chemicals really start 
in their primary state as some of these chemicals.
    And by the way, as much as we are doing something about 
cancer, nobody says that, you know, the chemical that is in 
your clothes or in this desk we are going to do away with. We 
simply are finding cures for cancer and trying to do as much as 
we can about our environment.
    But when you look at what would happen if, for example, a 
car blew up or there was an accident, or it was attacked, we 
are talking about chemicals that once you get them together is 
where the issue is. We are talking about things like chlorine 
and ammonia. We are not just talking about the rarified ones 
that we are most afraid of, we are talking about hydrochloric 
and sulfuric acid. We are talking about the kind of chemicals 
that we all learned about when we took chemistry in junior high 
school and where, in a real sense, it is unimaginable that 
somehow or the other, as visionary as I like to be, that 
somehow we would live in a world in which some mixture of these 
chemicals were no longer necessary or no longer had to be 
transported.
    What do you have in mind? Could you elaborate, finally, on 
what you have in mind that would eliminate at least these most 
common ones, or are you only talking about the newer ones that 
we are most afraid of?
    Mr. Hamberger. No. And let me just emphasize that our 
effort to try to encourage product substitution is not meant in 
any way was an attack on the chemical industry. They are a very 
important part of our customer base, and we appreciate their--
----
    Ms. Norton. No, you see, they would probably make the 
substitutes as well, Mr. Hamberger.
    Mr. Hamberger. Good point.
    And so the example that I am just familiar with here is the 
Blue Plains Wastewater Treatment Plant, which used to get, I 
believe, a tank car full of liquid chlorine once a week and now 
gets several truckloads of what I call a chlorine bleach--I am 
not sure what the official chemical is, but it is a chlorine 
bleach--that provides the purification needed at Blue Plains.
    But there is no fantasy here, this will not be a perfect 
substitution, but we are talking about 100,000 carloads. If, 
with research and incentives, some of those carloads can be 
replaced with chlorine bleach to purify a water supply, you 
know, our view is that that makes sense, and it will just 
reduce the scope of the exposure for the communities and the 
employees. So if you can get 20,000 replaced by chlorine 
bleach, you now have 80,000 carloads moving.
    The other big piece is anhydrous ammonia, which is used for 
fertilizer. And I know that that is critically important. It is 
the most, I am told, effective fertilizer out there. There are 
substitutes, but they are not quite as effective. And as we are 
trying to grow more corn to make more ethanol--which we are 
proud to haul as well--you know, the need and demand for 
fertilizer is there.
    But I guess our thought is--and not our thought so much as 
the National Research Council and General Accountability Office 
say--let us spend some time and resources taking a look and 
doing the research, because that is the long-term solution. 
That is the way to figure out how to minimize the liability and 
the exposure for the communities.
    Ms. Norton. Thank you, Mr. Chairman.
    Mr. LaTourette. Thank you very much.
    And to this panel, I want to thank you very much for your 
testimony and thank you for answering our questions. You go 
with our thanks.
    Our next panel consists of Mr. Martin Durbin, Managing 
Director of Federal Affairs, American Chemistry Council; Mr. 
Steven Bell, Battalion Chief of the Augusta Fire Department in 
Graniteville; Mr. Lawrence M. Mann, representing the American 
Trial Lawyers Association; Mr. James R. Beardsley, who is the 
Managing Director of the National Rail Transportation Practice 
Aon Risk Services, Inc. Mr. Beardsley is accompanied by Ms. 
Deborah Bates, who is Vice President and Complex Casualty 
Broker, also of the same company.
    Thank you all very much for coming. We look forward to 
hearing from you.
    Mr. Durbin, you are first.

TESTIMONY OF MARTIN DURBIN, MANAGING DIRECTOR, FEDERAL AFFAIRS, 
   AMERICAN CHEMISTRY COUNCIL; STEVEN BELL, BATTALION CHIEF, 
   AUGUSTA FIRE DEPARTMENT; LAWRENCE M. MANN, AMERICAN TRIAL 
  LAWYERS ASSOCIATION; JAMES R. BEARDSLEY, MANAGING DIRECTOR, 
NATIONAL RAIL TRANSPORTATION PRACTICE AON RISK SERVICES, INC., 
   ACCOMPANIED BY: DEBORAH BATES, VICE PRESIDENT AND COMPLEX 
CASUALTY BROKER, NATIONAL RAIL TRANSPORTATION PRACTICE AON RISK 
                         SERVICES, INC.

    Mr. Durbin. Thank you, Mr. Chairman, Congressman Barrow. 
Again, I am here on behalf of the American Chemistry Council, a 
trade association representing America's leading chemical 
companies. Today, I am here to deliver one message: Safety is 
the starting point and the finish line. That is where we begin 
and where we want to wind up in our manufacturing operations, 
our transportation system, and throughout our entire value 
chain.
    Materials transportation safety, that is the avoidance of 
accidents and accidental releases of hazardous materials, is 
the primary focus for ACC, our member companies, our 
transportation partners, and the emergency responders with whom 
we work every day.
    Through ACC's Responsible Care initiative, our member 
companies and our partners are committed to continuous safety 
improvement in every aspect of the value chain.
    We have a strong and successful partnership with our rail 
carriers, the government, and emergency response community. For 
example, in the 1980's, ACC members, together with the 
railroads and other stakeholders, developed TRANSCAER, a 
voluntary national outreach effort that helps communities 
prepare for and respond to possible hazardous material 
transportation incidents.
    ACC and its partners have invested billions of dollars in 
training, systems, technology and tank car safety and we will 
continue to do in the future. Together, we have learned that 
hazardous material safety is the result of many interrelated 
factors, including overall safety of rail operations, track 
conditions and rail infrastructure, placement of tank cars in 
their coupling to other cars, training supervision and staffing 
of train crews, inspections of equipment, use of appropriate 
cars for specific hazardous materials, and of course, the 
design and construction of the tank cars.
    In short, we and our partners know hazardous materials 
safety is a holistic process. Today, we are concerned that the 
partnership is being compromised by some of our partners, and 
believe their proposals are driving us down the wrong track 
regarding hazardous materials transportation safety.
    Among our concerns is the rush to require new car designs 
without waiting for the technical study of car performance now 
underway at DOT's Volpe Center. We are also troubled by efforts 
to alter the basic liability rules that govern hazardous 
materials transportation.
    The hazardous materials transportation safety issue is 
before us for many reasons, but one crucial reason is that the 
product supplied by the business of chemistry and including 
these hazardous materials are essential in virtually every 
sector of our lives. We have a $550 billion industry that 
employs more than one million people in all 50 States. It 
accounts for 10 percent of all U.S. merchandise exports. In 
fact, more than 96 percent of all manufactured goods are 
directly touched by chemistry.
    Congress wisely established a national science-based 
hazardous material transportation system administered by DOT. 
That system ensured that chemicals and other hazardous 
materials are delivered safely and reliably. The system's goal 
is not to prevent their movement.
    We are concerned, however, by testimony from rail labor 
unions regarding training and staffing deficiencies. Proposals 
to permit one-person train crews should not be considered until 
proven technology solutions are in place to allow for safe 
operations with a single crew member.
    Why is this so crucial? The FRA reported last year the 
train accident rate has not shown substantive improvement in 
recent years, and that the great majority of train accidents 
are caused by track and human factors. Human factor accidents 
are growing in number. Now, we are aware and are encouraged by 
reports of recent improvements in rail safety performance, but 
believe that more can and should be done.
    Let me briefly address the issue of liability that has been 
raised today. Again, we believe that the cost of liability is 
the result of safety performance. If safety improves and 
accident rates fall, liability will diminish. The legal system 
appropriately places liability on the party or parties that are 
responsible for an incident. The removal or reduction of 
liability could have unforeseen or undesirable consequences, 
including a further erosion of safety performance.
    Regarding the common carrier obligation, I believe Congress 
recognized it as the framework on which the entire national 
rail transportation system was founded, and that it remains 
crucial today.
    Finally, I want to address emergency response. For 35 
years, ACC's CHEMTREC program has shared expertise with 
emergency responders. When an incident takes place, responders 
contact CHEMTREC's state of the art, 24/7 emergency center to 
determine the best way to handle a wide range of hazardous 
substances. I want to personally invite the members of this 
subcommittee and their staff to tour our CHEMTREC emergency 
center in Rosslyn, to see how we work with local responders to 
help protect your communities.
    ACC would also like to work with the subcommittee to help 
emergency responders nationwide receive the CHEMTREC and 
TRANSCAER materials and training opportunities that are 
available.
    The Nation needs a safe and reliable system of hazardous 
material transportation governed by uniform national rules. 
That is the system we have today and the challenge, for both 
the private and public sectors, is to ensure that this system 
continuously improves.
    We look forward to working closely with the subcommittee, 
with the Congress, Department of Transportation, and all of our 
transportation partners to make that happen.
    Thank you, and I will be glad to answer questions.
    Mr. LaTourette. Mr. Durbin, I thank you very much. I will 
take you up on your offer, and I think I will have the staff 
get in touch with you. I know I would like to come to Rosslyn 
and I am sure that other members of the Subcommittee would as 
well. I look forward to that.
    To introduce our next witness, Chief Bell, I yield to Mr. 
Barrow for just a moment.
    Mr. Barrow. Thank you, Mr. Chairman.
    Our next witness is someone we really ought to listen very 
closely to because he is the only person here today who speaks 
for the first responder community. In fact, he was in charge of 
the first responder community that responded to the 
Graniteville incident, the worst of the ones we have heard 
about today.
    So Mr. Chairman, it is my pleasure to introduce Mr. Steven 
Bell. He is the Battalion Chief, the fellow at the Augusta 
Richmond County Fire Department, the fellow who is in charge of 
the hazmat team that responded to the Graniteville incident.
    Chief Bell, thank you for being with us today.
    Mr. Bell. Good afternoon. My name is Steven Bell. I am a 
Battalion Chief with the Augusta Fire Department.
    I would like to start off and thank Chairman Steve 
LaTourette and Ranking Member Corrine Brown for holding this 
very important meeting. I also want to thank you, Congressman 
John Barrow, for inviting me to testify here.
    Let me give you a little history. For the past 31 years, I 
have been a firefighter/first responder. My tenure began in the 
1970's as a firefighter, but it wasn't until about the mid-
1980's that we began to realize that there was a need for a 
specialized team of firefighters that would be needed to handle 
any type of transportation of industrial accident there in the 
Augusta area.
    Prior to the 1980's, the only thing that we worried about 
in the line of hazardous materials was gasoline, natural gas 
and propane. That was it. The tools we had to deal with that 
were water, foam, hand-held fire extinguishers, and a handful 
of these rubber gasline plugs for natural gas.
    In 1985, a group of firefighters decided it was time to 
begin the uphill battle to form our first hazmat team. Any 
equipment that we got was obtained by way of donations from the 
local industry. But today, our hazmat teams consists of 23 
members who are trained to technician level. We also have two 
custom-built hazmat units, level A, B, and C suits. We have 
patch kits and other specialized equipment.
    On January 6, 2005, our training and equipment were put to 
the test when a freight train carrying chemicals hit a parked 
train near the Avondale Mills in Graniteville, South Carolina. 
The impact caused poisonous chlorine gas to leak from the ninth 
car of the train that was moving. More than 5,000 people were 
evacuated from the site and 9 were killed.
    I was on duty the morning that the Graniteville accident 
occurred. The GVW, which is the abbreviation for Graniteville-
Vaucluse-Warrenville Fire Department, initially responded to 
this accident. After their initial response, we were requested 
to send our hazmat team to assist in the incident. Initially, 
our 9-1-1 dispatcher contacted me in my office and gave me the 
information that she had. However, the information was still 
not clear. Our first step after that is we got the team 
together there in my office and we tried to assemble some 
information and obtain more information.
    What we decided to do at that time was to have a GVW member 
to meet us at an appointed place miles away from the incident 
site. That enabled us to get first-hand information so that we 
could assess it even better. After this meeting with him, I 
knew that this was not going to be the typical response. Our 
initial response from our fire department consisted of both 
hazmat units, six on-duty team members, we had six members 
called back for standby, a Battalion Chief, which was myself, 
the Special Operations Chief, and our Emergency Management 
Director who now serves as the Chief of the Augusta Fire 
Department.
    Because I knew that the GVW had limited resources, I knew 
there was much more that was going to be needed than what we 
could supply. Our department supplied personnel at the scene 
and equipment for two weeks. Not only did we assist in the 
planning and making an action plan, we also had a direct 
involvement in seeing that these action plans were implemented.
    I certainly hope an incident like this does not occur in 
any one of the cities that you represent. While I don't want 
anyone to have to deal with hazardous materials accidents, I do 
think the Federal Government has an important role to play in 
ensuring our Nation's emergency responders are properly trained 
and properly equipped to respond to these types of accidents.
    Specifically, more funding should be provided for training. 
Firefighters need to have the appropriate level of training and 
we should have new tools that should be developed to better 
identify the hazardous cargoes. While the safety of emergency 
responders cannot be fully guaranteed, the number of those 
injured or killed as a result of exposures to hazardous 
materials can be impacted through hazardous materials training.
    Training is not only necessary for the new recruits, it is 
essential for the fellow who has been there for a while. All 
first responders need to have reoccurring hazardous materials 
training. Additional funding is needed to ensure that all 
firefighters who respond to an incident involving hazardous 
materials be prepared to respond appropriately and safely.
    First responders not only need just plain everyday 
training. We need an exceptional training. There is a facility, 
it is called the Transportation Technology Center in Pueblo, 
Colorado that handles that type of training. Through the 
generous sponsorship of CSX Railroad, I was provided the 
opportunity to attend a week-long course in March, 2005. The 
main emphasis of this training was on rail cars, but more 
specifically the tank cars. Even though I serve in a position 
that no longer I have to work in the hot zone, this week-long 
class allowed me to become familiar with everyone and they 
became familiar with me, and we knew what each other's duties 
are. This, in itself, is priceless.
    We must work as a team on incidents like this. When we do 
this, it builds confidence with one another. If you take 
classroom work, add hands-on training, and add applying this 
training to a practical exercise, it equals a formula for the 
safest and most effective resolution to a hazmat incident.
    Unfortunately, most first responders are not afforded this 
same opportunity due to the restricted budgets. We owe a lot of 
thanks to Norfolk-Southern and CSX for providing a way for some 
of this country's first responders to attend these courses. In 
my opinion, providing the opportunity for more first responders 
to attend is the type of training that is money well spent.
    I think the Federal Government should assist local 
communities to provide this type of training to their 
firefighters.
    Another good example of this type of training with 
hazardous materials is a program that is offered by the 
International Association of Firefighters. They are using 
instructors who are both certified in fire service instruction 
and certified hazmat responders. They offer this free of charge 
real-world training in local communities that few institutions 
can match.
    This brings me to a second point: Firefighters need to 
receive appropriate levels of training. It is extremely 
important that emergency responders are trained at a level that 
is appropriate to their response. The Department of Labor 
regulations identifies five different levels of hazmat 
emergency response. That is: awareness, operations, 
technicians, hazmat specialists, and then the on-scene 
commander. But unfortunately, the normal training that is 
provided in many States is the awareness level, and this is 
totally unacceptable. This is inadequate.
    This type of training is inadequate to prepare a 
firefighter response to a hazmat call. Awareness training is 
really intended for employees at a facility where hazardous 
substances are present, and is intended to do, one, train them 
to recognize a potential release; and two, to initiate the 
response. In other words, let's call the proper agency, like 
the fire department.
    All firefighters at a minimum should be trained at the 
operations level. Operations level is designed for individuals 
who respond to releases and/or potential releases. It teaches 
them how to protect the nearby persons, property and the 
environment from the release itself.
    They also train to contain a release from a safe distance, 
keep it from spreading, and prevent exposures. Clearly, this is 
the minimum level of training that firefighters should be 
trained.
    Finally, as the Graniteville train accident proved, timely 
and accurate information are the key to any successful 
emergency response. This is especially true in a hazmat call. 
Without the ability to quickly and accurately identify 
hazardous cargo, firefighters may lack the necessary 
information to properly respond to a hazmat incident. An 
improper response could result in injury and even death to both 
the responder and civilians.
    Identifying placards for hazardous materials rail cars are 
also an important life-saving tool that can help provide 
firefighters with the necessary information they need to 
respond. They are essential for first responders to quickly 
obtain and easily obtain information they need to size up the 
scene.
    However, I do believe new technologies should be examined 
just to see how they may be best utilized to supplement 
placards and enhance the ability of the first responders to 
properly respond to incidents involving hazardous materials.
    I apologize for going over, and I want to thank you again 
for inviting me to appear here today. If there are any 
questions, I will be pleased to attempt to answer them.
    Mr. LaTourette. Chief Bell, thank you very much. You don't 
have to apologize. My experience with those of you from below 
the Mason-Dixon line, it takes about 10 minutes what we up 
north say in five.
    Mr. Bell. Yes, sir. OK.
    Mr. LaTourette. Mr. Mann, thank you very much for coming. 
We look forward to hearing from you.
    Mr. Mann. Thank you, Mr. Chairman. I am also from the 
South, and being a lawyer on top of that, you can see the 
problems.
    My testimony today is endorsed by the Association of Trial 
Lawyers of America. I am a trial lawyer. As background, I 
participated in drafting the Federal Railroad Safety Act in 
1970, and in particular the preemption section. In fact, I 
looked at some of my old files going back to those years, and I 
found some of my handwriting on the preemption section which I 
helped draft.
    I have been involved in quite a number of hazardous 
materials accidents as either a consultant or representing the 
plaintiffs in the litigation. So I think I can give the 
Committee some insight on what Congress did in its 
deliberations in 1970 regarding preemption, and where it is 
today.
    First, the rail industry, I appreciate Mr. Hamberger 
stating that he regretted and offered his sympathy to the 
innocent victims, but two points. One is in every case that I 
have ever been involved in regarding hazardous materials 
accidents and serious injuries, the entire industry has argued 
in front of the courts that we were preempted. State common law 
did not apply. I submit to you that nowhere in the Federal 
Railroad Safety Act deliberations by Congress was there any 
suggestion that State common law should be preempted. It wasn't 
even proposed by the railroads in those days. It is a recent 
phenomenon.
    It is just inconceivable that Congress at that time, or 
even today, would even consider depriving innocent victims from 
recovery where there is negligence involved. We are not talking 
about cases where there was no negligence. We are talking about 
negligence. If there was no negligence resulting from these 
accidents, there would be no litigation. We are talking about 
somebody who caused a problem.
    I submit to you that the Minot decision is a strange 
decision, I must admit. It is wrong on many grounds in my view. 
Of course, my view is just as an individual, but the Supreme 
Court has offered its views on preemption. I am just going to 
spend just a minute on what it has said. First of all, there is 
a presumption against preemption. Secondly, it pointed out 
under the Federal Railroad Safety Act that it displays 
considerable solicitude for State law. And finally, to be 
preempted, there must be a clear and manifest purpose of 
Congress. That certainly didn't happen in the Federal Railroad 
Safety Act.
    Now, I want to point out a couple of things that were 
raised in the hearings today. One is, Mr. Barrow, you mentioned 
train makeup. Well, the railroad workers going back into the 
early 1980's proposed to both Congress and the Federal Railroad 
Administration that there be standards set by FRA on train 
makeup. However, train track dynamics is a complicated issue. I 
will just give you one example. If there are heavy loaded cars 
at the rear of the train and empty cars in the front of the 
train, you are begging for a derailment. So that can't occur. 
You have to have some combination that is a safe train makeup. 
But there should be standards. I absolutely agree with you, and 
so do all the railroad workers in the country.
    Regarding the issue of human factor accidents, which you 
have heard this morning, where they pointed out, various 
witnesses, that it is up to about 40 percent today. I want you 
to keep in mind that the railroads themselves and the railroads 
only determine the causes of accidents, which are reported by 
the Federal Government. The FRA doesn't investigate. They may 
investigate maybe 1 percent of the accidents in the country. So 
that statistic must be taken in context with everything else 
you have to consider.
    With regard to the national insurance issue, well, first of 
all, if you look at what happened with the nuclear industry and 
the Federal insurance, I think you are going to find there are 
significant problems there.
    But aside from that, the incentive to provide a safe 
railroad is the key to everything. Unless an innocent victim 
can recover, that incentive goes away because in truth, if one 
would really analyze Federal Railroad Administration 
enforcement, it is very weak. They do a nice job on certain 
things, but it is barely a slap on the wrist on the number of 
penalties that they impose versus how many violations they 
discover.
    Thank you very much.
    Mr. LaTourette. Thank you very much, Mr. Mann.
    Mr. Beardsley, thank you for your patience. We look forward 
to hearing from you.
    Mr. Beardsley. Thank you, Mr. Chairman, Mr. Barrow. Good 
afternoon and thank you for the invitation to speak today.
    My name is James Beardsley. I am here with my colleague 
Deborah Bates, and we are attending the hearing representing 
Aon's national rail practice. We are in the business of 
providing insurance brokerage and risk management solutions to 
the railroad and rail-related industries.
    As representatives of Aon's national rail practice, we 
currently design the excess liability programs for all but one 
of the five American Class I freight railroads. In addition, we 
have a substantial book of short line, transit and national 
passenger rail accounts.
    Our purpose for being here today is to give the committee a 
snapshot of the current state of the rail liability market and 
how the transportation of hazardous materials may impact the 
capacity and pricing of the insurance for those railroads.
    Globally, there are currently three geographic centers for 
railroad liability insurance: the United States, Europe and 
Bermuda. Their combined capacity for rail is about $1 billion. 
Our written testimony gives a rundown of the more substantial 
underwriters in this arena, but I don't see that there is any 
need to go through those things individually right now.
    In the overall global insurance market, there is 
substantially more than $1 billion available, but we are 
dealing with a class that is considered to be quite volatile 
and only a select few companies are willing to participate.
    Of the underwriters referenced in the written testimony, 
there are about four of them that are considered to be lead 
markets. The lead markets set the terms and conditions of the 
insurance in negotiation with ourselves and our clients, the 
railroads. They set the pricing and the attachment point on the 
lowest layer of the insurance.
    The American domestic leaders, the American Home and the 
Lexington, are both divisions of AIG. The European leaders are 
the Gerling, which is headquartered in Cologne, Germany, and 
Lloyds of London, of course, led by the syndicate, the 
Wellington. Over the last several years, the North American 
railroad liability market has contracted substantially. Five 
years ago, railroads were able to purchase in excess of $1.5 
billion of liability coverage.
    The number of insurance companies and Lloyd syndicates 
willing to write freight railroads has decreased, while the 
price charged for the capacity has increased. There are several 
events that have exacerbated this situation, including the 
events of September 11, large derailments with chemical 
releases, contraction of the worldwide insurance market for 
risks like railroads, large passenger losses, and even the 
hurricanes.
    It is important to note that the recent bombings in both 
London and Madrid focused underwriters' attention on the 
terrorist threat as well as it relates to the rail industry. 
This is in light of the fact that most of the participating 
liability underwriters provide full terrorism cover and a large 
percentage of that capacity is not eligible for protection 
under the extended TRIEA as it comes from foreign insurance 
companies. As a result, any further terrorist event on a 
transit passenger or freight railroad could have a disastrous 
impact on the available rail capacity and the breadth of 
coverage available.
    Now, perhaps more specific to the subject of this hearing, 
we are very concerned that a further large liability loss 
involving hazardous chemicals, especially inhalants, could 
result in an additional contraction of the liability market 
capacity and a spike in its price. When underwriters are 
examining a submission in order to evaluate the exposures on 
freight railroads, their attention is drawn to the number and 
type of hazardous material carloads. This information will have 
a direct bearing on the premium charged and the capacity 
offered.
    Underwriters focus on the holding of hazardous materials 
because they have been the proximate cause of many of the 
largest losses to insurers to date. We feel that we should 
emphasize that terrorism and hazardous chemical data must be 
looked at in conjunction with each other. These are the two 
major areas of concern for the participants on excess liability 
programs for freight railroads, and thus are a major concern 
for the railroads themselves.
    In conclusion, as the professionals charged with the task 
of securing financially secure capacity for our railroad 
clients to cover catastrophic accidents or events, we must 
report that we are concerned. We are concerned about the 
continued viability of the railroad liability market in the 
face of another catastrophic hazmat claim.
    We are concerned more from the standpoint of adequate 
availability than merely cost. Had the Graniteville, South 
Carolina loss happened at a different time of day or another 
railroad derailed in a more populated area, the likelihood of 
the ultimate loss exceeding the available insurance, and thus 
undermining the liability market's long-term commitment to 
railroads, increases dramatically.
    At Aon, we are always in search of new and additional 
capacity to replace underwriters who exit the rail liability 
market. At this point in time, there are not many options open 
to replace the waning capacity. One more catastrophic loss 
could collapse the available structure of the risk transfer 
completely.
    Thank you very much for your time, and I look forward to 
your questions.
    Mr. LaTourette. Thank you, Mr. Beardsley.
    Just so I am clear, when you say that the current capacity 
of $1 billion, are you indicating that if I was a railroad and 
I wanted to buy the most insurance that was available to me, 
that the most insurance that is available to a Class I railroad 
today is a policy of $1 billion?
    Mr. Beardsley. It is about $1 billion.
    Mr. LaTourette. About $1 billion. And just when you talk 
about attachment points, is that what I would call a 
deductible?
    Mr. Beardsley. Right.
    Mr. LaTourette. OK.
    Mr. Beardsley. Similar to that, but I won't get into 
insurance-ese with you.
    Mr. LaTourette. OK. So basically, if the railroad was flush 
with cash and wanted to buy the best policy that they could, 
they could get maybe $1 billion of coverage. What would the 
attachment point be, $50 million?
    Mr. Beardsley. Most of the attachment points currently are 
at about $25 million.
    Mr. LaTourette. About $25 million. Are you aware of any 
judgments or any exposure above $1 billion that has been 
incurred in judgments against railroads?
    Mr. Beardsley. No, I don't. The largest insured loss to 
date that we are aware of is the Graniteville, South Carolina 
loss, which is reserved as something substantially less than 
that.
    Mr. LaTourette. OK, thank you.
    Mr. Mann, I have to agree with you. I don't know how the 
court came up with a decision in the Mehl case. I don't know 
what they were thinking. I don't know how they determined that 
there was preemption.
    I was interested because one of my questions was whether or 
not the railroad had argued that there was preemption, because 
I find that to be kind of an interesting argument. Without 
naming the railroad, we had a similar situation back in Ohio 
where a railroad came in and said that State law should apply, 
and then when they lost, they said, oh, wait a minute, we think 
Federal law should apply.
    I didn't quite understand that. Are you aware, however, in 
that case that in both of our opinions was wrongly decided, is 
there any constitutional recourse for the folks that had their 
claims dismissed or settled in light of the fact that the court 
ruled the way that it did?
    Mr. Mann. The litigation has moved to Minnesota because the 
Federal judge apologized in his opinion, and he suggested that 
the plaintiffs move their case to Minnesota. However, both 
cases have been removed to the Federal court. In the Federal 
court system, there have been inconsistent decisions. In most 
all of the State court decisions, they have not ruled that 
there was preemption of State common law.
    One of the arguments made in the preemption arena is that 
under the 49 U.S.C. 20-106, which is the preemption section, 
the railroads, one of their favorite arguments is Congress said 
there should be national uniformity. Well, the Supreme Court 
has addressed that also, I would submit, in a case called 
Sprightsman v. Mercury Marine at 537 U.S. 51. The Supreme Court 
said, the concern with uniformity does not justify the 
displacement of State common law remedies that compensate 
accident victims and their families and that serve the actual 
prominent objective of promoting, this was a Boat Safety Act 
case, which is almost the same language as the Federal Railroad 
Safety Act language regarding preemption.
    So the Supreme Court told the judge that uniformity is not 
the key here, but the judge just paid no attention to it.
    Mr. LaTourette. Right. And Chief, I took from your 
testimony that you found the experience out at the Pueblo site 
run by the FRA and AAR to be time well spent. Did you train on 
the permanent train wreck out there that they have?
    Mr. Bell. Yes, sir. It is as realistic as it can get, even 
as far as live fires and actual explosions.
    Mr. LaTourette. I remember when I was out there, I was so 
impressed with it. We had the folks from Union Pacific who were 
training at the time, and they had one fellow in on his laptop 
corresponding with people so that they could assess what it is 
that the first responders were dealing with, and then the crew 
was out there.
    I found it to be great. I know you were in the room. We 
discovered in preparation for this hearing that they had a 
capacity out at Pueblo to do three times as much training as 
they are currently doing. I hope Administrator Boardman takes 
it up with his counterparts at Homeland Security. I don't know 
why we wouldn't be sending people out there. I think it is 
money well spent.
    And then lastly, before I yield to Mr. Barrow, Mr. Durbin, 
you were in the room when you heard Mr. Hamberger's proposal 
about a Federal backstop, for lack of a better word, and I 
assume I know your answer, on being relieved from the common 
carrier obligations. I am not even going to ask you on that 
question.
    But what is your reaction to the proposal by AAR relative 
to this Federal backstop or cap?
    Mr. Durbin. Again, our concern was whether or not removing 
or reducing liability would end up somehow providing a 
disincentive for improving safety. But it is an issue that has 
got to be discussed within the entire transportation system, to 
make sure that we are doing everything possible from rail 
operations to tank car design to emergency response, to look at 
the whole picture before we start looking at where do we reduce 
and remove liability in the system.
    Mr. LaTourette. Then let me just ask you this, we have this 
whole issue of these dangerous chemicals. I think I asked Mr. 
Hamberger about it. Why don't some of your members substitute 
this sodium hypochloride for chlorine gas? Why isn't that a 
decision that is made to benefit, reducing everybody's 
liability? Do you know?
    Mr. Durbin. Well, those are decisions made by the customers 
and the users, and those decisions are being made. They are 
legitimate decisions that have to be made, and that are made, 
but they are not simple, just let's go swap out a chemical 
here. The Blue Plains decision was a three year process to come 
up with, is this the right thing for the Blue Plains facility. 
There were a lot of risk tradeoffs there. I think it was a 
perfectly legitimate decision to make, but they no longer have 
the rail tank car there. You now have for every tank car, 
multiple trucks that are on the railroad. I am not saying it 
was a bad decision, and those decisions are being made.
    Secondly, I would tell you from an industry standpoint, I 
mean, this is an industry, and certainly our members don't shy 
away from innovation and competition, and are always changing 
and innovating and improving the safety of their products and 
the way we distribute them. We spend $23 billion a year in 
research and development. One of every eight patents goes to 
the business of chemistry.
    We have the safest manufacturing industry in the country. 
We are very proud of that. So I think that these are things 
that we bring to the table when we are part of this system for 
improving safety in the transportation sectors.
    Mr. LaTourette. Thank you very much.
    Mr. Barrow?
    Mr. Barrow. Thank you, Mr. Chairman.
    Chief, I want to follow up on your comments and explore a 
couple of areas: one, the importance of training and the level 
of training, and also the importance of real-time notice. If we 
take anything away from this hearing today, from the first 
responder community, it is to take an understanding of just how 
training plays a role in this.
    I don't think a lot of folks realize this, but any level of 
training and responding to a hazmat situation delays your 
response to some extent. And inadequate training delays your 
response even more. I know it runs kind of counterintuitive 
because the culture of the first responder community is rush to 
the hazard, as close as you can; close with the enemy; and deal 
with it.
    But how is the situation different when you all know you 
are dealing with a hazmat situation?
    Mr. Bell. Well, you are exactly right. That is the reason 
there are red lights and sirens on fire trucks is to get there 
quick. That is the typical norm for firefighters. We want to 
get there quick and our ultimate goal is to help. When we show 
up, we are there to help, whether it is to save a life or 
property.
    When you look at the hazmat aspect of it, it changes 
completely. We have to sit back. We have to formulate game 
plan, and you have to make sure the game plan is well organized 
and put together, and everybody has to agree on it.
    Let me make a quick comparison. I have thing in my head 
that I compare a hazmat situation to. If you were to take me 
outside this room, blindfold me, tie my hands up, and cut out 
all the lights and cover all the windows, and you tell me: Over 
there on the left side of the room there is a rattlesnake; go 
get it.
    And see, you just can't rush in. That is what a hazmat 
situation is like. It is trying to deal with something and the 
more information you get, you know, you untie my hands, and I 
get more information, and the blindfold comes off; more 
information, the lights come on, and so forth and so on.
    So you have to sit back and wait until you have the right 
information and wait until you have the right plan, then go.
    Mr. Barrow. This leads to my next observation about the 
importance of training, and inadequate training. Any amount of 
training tells you you have to stand off from the hazardous 
situation. Inadequate training doesn't give you some idea of 
how to attack the situation. So I first want to commend the 
industry and the FRA, because together they are funding 
training efforts. But this is an area where I think we can and 
need to do more.
    What is the effective level of training we have right now? 
And how does that delay response even more?
    Mr. Bell. Basically, everybody trains to awareness, which 
is what just tells you, watch out; there is something going to 
happen; get out of the way. The International offers the 
operations level free of charge, and I really think that is a 
good program. They offer a very good program.
    Mr. Barrow. It gives you the ability and the training to 
actually do something about it.
    Mr. Bell. Exactly. You know, you can take it further. We 
have a few in our fire department that are beyond the hazmat 
tech level. But operations is the minimum. Awareness, to be 
honest with you, is just not enough.
    Mr. Barrow. Lastly, on the subject of real-time notice, an 
important subject any way you look at it. According to the 
reports of the NTSB and others, there was at least a 25 minute 
to one hour delay in getting information on what the railroad 
knew and when they knew it, to the first responders on the 
scene. When you tack a 25 minute to one hour delay in 
responding to all the people in the situation, aren't you 
increasing significantly the risk of harm to folks who could be 
rescued?
    Mr. Bell. Yes, sir. First of all, to get the information, 
you can formulate a game plan and do your rescue. The further 
you delay it, until you get the information, you can't 
formulate a plan.
    Mr. Barrow. They had a lady who was trapped in the car as a 
result of the collision and was right next to the incident, who 
managed to survive the thing. If the wind had changed, she 
would be dead today.
    Mr. Bell. That is correct. She did survive and she was 
rescued. But like I said, until we knew exactly what was going 
on, we didn't want to send a rescuer in there, so we had to get 
the information.
    Mr. Barrow. My point is, as long as it takes you all to 
formulate a plan, and as long as it takes you all to implement 
a plan, if you tack on the time it takes for us to get the 
information the railroad had to you all, that is just that much 
added time, that much added exposure to risk of harm.
    Mr. Bell. Yes, that is exactly right. Time is a very 
important factor. The more time you take to get to a victim, 
the less chance their survivability is.
    Mr. Barrow. Thank you, Chief.
    Mr. LaTourette. Thank you, Mr. Barrow.
    To this panel, I want to thank you very much for your 
testimony, and also for answering our questions. I want to 
thank all of the witnesses who appeared before us today, 
together with the members who participated.
    This hearing is adjourned. Thank you very much.
    [Whereupon, at 1:42 p.m. the subcommittee was adjourned.]

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