[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
CONCERNS WITH HAZARDOUS
MATERIALS SAFETY IN THE U.S.:
IS PHMSA PERFORMING ITS MISSION?
=======================================================================
(111-57)
HEARING
BEFORE THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
September 10, 2009
__________
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Committee on Transportation and Infrastructure
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JAMES L. OBERSTAR, Minnesota, Chairman
NICK J. RAHALL, II, West Virginia, JOHN L. MICA, Florida
Vice Chair DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of JOHN J. DUNCAN, Jr., Tennessee
Columbia VERNON J. EHLERS, Michigan
JERROLD NADLER, New York FRANK A. LoBIONDO, New Jersey
CORRINE BROWN, Florida JERRY MORAN, Kansas
BOB FILNER, California GARY G. MILLER, California
EDDIE BERNICE JOHNSON, Texas HENRY E. BROWN, Jr., South
GENE TAYLOR, Mississippi Carolina
ELIJAH E. CUMMINGS, Maryland TIMOTHY V. JOHNSON, Illinois
LEONARD L. BOSWELL, Iowa TODD RUSSELL PLATTS, Pennsylvania
TIM HOLDEN, Pennsylvania SAM GRAVES, Missouri
BRIAN BAIRD, Washington BILL SHUSTER, Pennsylvania
RICK LARSEN, Washington JOHN BOOZMAN, Arkansas
MICHAEL E. CAPUANO, Massachusetts SHELLEY MOORE CAPITO, West
TIMOTHY H. BISHOP, New York Virginia
MICHAEL H. MICHAUD, Maine JIM GERLACH, Pennsylvania
RUSS CARNAHAN, Missouri MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania JEAN SCHMIDT, Ohio
TIMOTHY J. WALZ, Minnesota CANDICE S. MILLER, Michigan
HEATH SHULER, North Carolina MARY FALLIN, Oklahoma
MICHAEL A. ARCURI, New York VERN BUCHANAN, Florida
HARRY E. MITCHELL, Arizona ROBERT E. LATTA, Ohio
CHRISTOPHER P. CARNEY, Pennsylvania BRETT GUTHRIE, Kentucky
JOHN J. HALL, New York ANH ``JOSEPH'' CAO, Louisiana
STEVE KAGEN, Wisconsin AARON SCHOCK, Illinois
STEVE COHEN, Tennessee PETE OLSON, Texas
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
DONNA F. EDWARDS, Maryland
SOLOMON P. ORTIZ, Texas
PHIL HARE, Illinois
JOHN A. BOCCIERI, Ohio
MARK H. SCHAUER, Michigan
BETSY MARKEY, Colorado
PARKER GRIFFITH, Alabama
MICHAEL E. McMAHON, New York
THOMAS S. P. PERRIELLO, Virginia
DINA TITUS, Nevada
HARRY TEAGUE, New Mexico
VACANCY
(ii)
CONTENTS
Page
Summary of Subject Matter........................................ iv
TESTIMONY
Porcari, Hon. John D., Deputy Secretary of Transportation, U.S.
Department of Transportation, Washington, DC................... 9
Santis, Lon D., Manager, Technical Services, Institute of Makers
of Explosives, Washington, DC.................................. 39
Scovel, Hon. Calvin L. III, Inspector General, U.S. Department of
Transportation, Washington, DC................................. 9
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Brown, Hon. Corrine, of Florida.................................. 46
Oberstar, Hon. James L., of Minnesota............................ 51
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Porcari, Hon. John D............................................. 56
Santis, Lon D.................................................... 70
Scovel, Hon. Calvin L. III....................................... 79
SUBMISSIONS FOR THE RECORD
Porcari, Hon. John D., Deputy Secretary of Transportation, U.S.
Department of Transportation, Washington, DC:
Response to request for information from Hon. Napolitano, a
Representative in Congress from the State of California:
Safety and security of chlorine shipments.................... 24
Rail car placarding.......................................... 29
Response to request for information from Hon. Oberstar, a
Representative in Congress from the State of Minnesota:
Special permits issued to associations....................... 15
Publication of approvals..................................... 35
ADDITIONS TO THE RECORD
American Pyrotechnics Association, Julie L. Heckman, Executive
Director, letter to the Committee.............................. 93
Council on Safe Transportation of Hazardous Articles, Inc., Lara
Mehr Currie, Administrator, letter to the Committee............ 97
Dangerous Goods Advisory Council, Mike Morrissette, President,
letter to the Committee........................................ 99
International Society of Explosives Engineers, Jeffery L. Dean,
Executive Director and General Counsel, letter to the Committee 106
International Vessel Operators Hazardous Materials Association,
Inc., John V. Currie, Administrator and Senior Technical
Consultant, letter to the Committee............................ 107
National Tank Truck Carriers, Inc., John L. Conley, President:
Statement for the record................................... 110
Revised statement for the record........................... 115
The Fertilizer Institute, Ford B. West, letter to the Committee.. 116
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HEARING ON CONCERNS WITH HAZARDOUS MATERIALS SAFETY IN THE U.S.: IS
PHMSA PERFORMING ITS MISSION?
----------
Thursday, September 10, 2009
House of Representatives
Committee on Transportation and Infrastructure,
Washington, DC.
The Committee met, pursuant to call, at 10:00 a.m., in room
2167, Rayburn House Office Building, the Honorable James
Oberstar [Chairman of the Full Committee] presiding.
Mr. Oberstar. The Committee on Transportation and
Infrastructure will come to order.
Today we have a hearing in the nature of a continuation of
inquiry into the conduct of the Pipeline and Hazardous
Materials Safety Agency.
In a way, you could say that this hearing began 22 years
ago with the explosion of the gasoline pipeline in Mounds View,
Minnesota, just outside my district, when a gasoline pipeline
had lost its cathodic protection. There was a dent in the line
that had been there for years unnoticed, and at that point
there was a failure. Gasoline leaked from the pipeline into the
ground. There was no shutoff valve, there was no sensor to
detect the drop in pipeline pressure, and the gasoline leaked,
apparently for days.
And the fumes worked their way up through the soil to the
street level, and at 2:00 a.m. a car driving appropriately
through the neighborhood, but with a loose tailpipe that
dragged on the ground, sparked, ignited the fumes that exploded
the street into a ball of fire, buckled and melted the
pavement, and a homeowner, a mother and her six-year-old, saw
the fireball, heard the sound, went out on their front porch
and were incinerated, as was their house.
The National Transportation Safety Board did an extensive
inquiry, found the failures: the rupture in the pipeline; the
loss of cathodic protection, corrosion that resulted; the
failure to have frequent, automatic sensors for pipeline
pressure loss and for leakage; and that the agency had no
measures in place, no procedures in place, and an insufficient
numbers of inspectors both at the Federal level and those that
are funded by the Federal Government in cooperation with the
State.
I was Chair of the Investigations Oversight Subcommittee at
the time. We held a very extensive hearing into the causes and
preventive measures that should be taken and recommended steps
to be taken. But what struck me at the time was that there was
not a culture of safety at the pipeline safety agency; that the
very top person, the administrator of the agency, had no clear
idea of what safety means.
And even though we provided--I moved legislation or
amendment in our surface transportation in the authorizing
Subcommittee to create additional positions for inspection, for
inspectors at the Federal and State level and they were funded,
but over time the attention was lost and the agency continued
to operate in what I can only describe today as a deteriorated
condition of public vigilance.
Safety is not a one-time snapshot. Safety is continuing
vigilance. I lived it personally when I worked in the mines,
when I was going through college, and I worked in a concrete
Ready Mix concrete block factory, I worked on construction
zones, street and highway construction. It is a matter of mind-
set of safety and of vigilance, and this agency has lost its
way and, along the way, has developed a very cozy relationship
with the industry it regulates.
The oversight and investigations role and heritage of this
Committee goes back to 1959, when then Speaker Sam Rayburn
asked my predecessor over there, portrait in the corner, John
Blatnik, to chair the special investigating committee on the
Federal Aid Highway Program to uncover waste, fraud, abuse, as
it turned out, criminal activity in the early days of
construction of the interstate highway system. The result of
those investigations over a period of six years resulted in 36
Federal and State and private contractor personnel being sent
to State and Federal prison. Some of them are still there.
At the beginning of those investigations, no State had
internal audit and review procedures in it highway program. As
a result of those investigations, every State adopted such
procedures and has continued to refine them.
The work of that committee was expanded into other areas of
the Full Committee's jurisdiction, because we know that
maintaining oversight of the Executive Branch agencies is the
responsibility of the Congress. We pass the laws; they enforce
them. It is our job to make sure they are doing the public's
business, and we will continue to pursue that responsibility in
this Committee.
PHMSA's culture appears plagued by a belief the agency
should make things as easy as possible for the industry that it
should be regulating. I have asked the staff, since the time we
regained the majority, to take a special, careful, thorough
review of this agency, based on my previous experience that I
have already described. The investigation undertaken by our
Committee staff, and also by the Inspector General of DOT,
uncovered a shocking number of failures by the agency to follow
Federal law in hazmat regulation, outright neglect in
regulating the transportation of hazardous materials. We also
heard from numerous employees, those with a real conscience and
with a concern for the public interest, that their agency was
entirely, as I suspected and have experienced over the years,
too cozy with the industry.
This is a theme we have uncovered in previous
investigations; in our Coast Guard hearing, where there was a
similar relationship between the Coast Guard and Lockheed
Martin, who were told to self-regulate. We saw it last year in
the inquiry into failure of FAA to oversee safety at major
airlines, including Southwest, which was the subject of a very
significant hearing. Again, the FAA inspector staff was told
that the industry is our customer.
Safety is not a customer relationship, it is an arm's
length relationship. And if the FAA treats an airline as the
customer and the customer isn't satisfied with the oversight
service they are getting, then they can ask for changes, and
they did, and the principal maintenance inspector was pulled
from the Southwest ticket, just as similar actions occurred at
the Coast Guard.
In the result of our Coast Guard hearings and inquiry, and
of the Inspector General's very thorough work, we have passed
legislation that will change those practices at Coast Guard,
and the Coast Guard itself has instituted changes. Similarly at
FAA, we have moved legislation to change the way safety is
conducted and taken out the customer service initiative. It has
no place in safety. It doesn't mean that there should be an
adversarial relationship, but it does mean there must be an
arm's length relationship between the regulated and the
regulators.
What we found is that PHMSA almost never turns down a
request from industry for a special permit. A special permit is
an exemption from regulations to carry hazardous material that
normally would be prohibited by Federal regulation. This raises
the issue--and I will ask the Inspector General and the under
secretary to address the question of why there should continue
to be rule by exception, why there should be special permit,
and why shouldn't there be a permitting structure to govern
this matter, rather than each case be considered; 5,000 such
applications in a two-year period, and less than two percent
were denied. Saying there is a cozy relationship with industry
is an understatement.
PHMSA never performs fitness reviews, although required to
do so, and it does not review the safety record or the
enforcement record of applicants for special permits, and that
is required by Federal regulations, they are defined in their
own regulations. They have no idea, in this agency, where the
special permits are being used. If you issue a special permit
and you don't know where they are being used, then it is
virtually impossible to monitor and enforce those permits.
Furthermore, the records are in appalling conditions. The
vast majority of special permit applications our Committee
staff and I reviewed, there was no safety analysis, there was
no justification in the approval records. The agency relies
almost entirely on self-certification by the applicant. That is
a formula for failure, as we saw in the Coast Guard and the FAA
inquiries.
Further, the agency grants special permits to industry
trade associations, which then can distribute those permits to
any of its members. Those trade associations are not safety
agencies, they are advocacy groups. They are perfectly legal,
but they are not safety responsibility agencies. This practice
defies common sense. There is no way to hold a trade
association accountable under the law, and often PHMSA, in
response to our questions, has no idea who is using a
particular special permit.
Furthermore, they operate all by themselves, PHMSA. They do
not coordinate with FAA, with the Federal Railroad
Administration, with Federal Motor Carrier Safety
Administration, all of whom have safety responsibilities. There
are cases where those regulatory agencies were opposed to
granting of exceptions, and yet they were ignored.
PHMSA also issues approvals and permits to agents of
foreign governments without any evaluation of the fitness of
the foreign company. On July 4, 2009, this year, four people
were killed in North Carolina when a truck loaded with Chinese
fireworks exploded. PHMSA was unable to provide critical
documentation on this permit.
They often ignore the concerns of their own enforcement
personnel. Numerous of the staff told our Committee
investigators that their warning and advisories have repeatedly
been ignored by senior management. A senior manager told our
Committee investigators I take enforcement personnel views with
a grain of salt. That is reprehensible. This agency needs a
house cleaning.
PHMSA itself needs that 60 to 90 percent of hazmat
accidents go unreported and the agency has no data driven base.
There was a universal view expressed within the agency that
their data is inaccurate, incomplete, and virtually useless.
That is unacceptable.
There are volumes more information, but it is clear this
agency's relationship with the industry it regulates needs to
be completely overhauled. Its current state is unacceptable, to
say the least.
The industry will say, oh, we haven't had any fatalities--
of course, there were those three or four people--but that is
not a safety mind-set; that is what I called of the FAA a
tombstone mentality. You wait until people are dead and then
you start acting? That is not right. Twenty years ago I
recommended more inspection, safety mind-set, higher standards
within this agency. It has deteriorated from there.
Today's hearing marks a turning point in the history of
that agency. The Deputy Secretary, Mr. Porcari, has taken
action as soon as he became aware of these findings and those
of the Inspector General. I am happy he is here. I am grateful
to the Inspector General, Mr. Scovel, for his persistent work
and detailed thorough and dispassionate detailed work on this
issue.
Now the Chair is happy to recognize the gentleman from
Pennsylvania, Mr. Shuster.
Mr. Shuster. Thank you, Mr. Chairman. Let me start off
first by saying happy birthday to you. I have exposed you.
Mr. Oberstar. Yes. Thank you. No songs.
Mr. Shuster. I am fortunate that you say no songs, because
my voice isn't that pleasant to listen to. But, anyway, happy
birthday to you.
Mr. Oberstar. Thank you very much.
Mr. Shuster. And many, many more.
Mr. Oberstar. At a certain point, birthdays are overrated.
Mr. Shuster. Well, good morning to everybody. Welcome to
this hearing today on hazardous materials. Welcome to the
Inspector General and to the Deputy Secretary. Thank you for
being with us today.
The Department Inspector General has raised legitimate
concerns about PHMSA's handling of special permits, approvals
for hazardous materials, transportation practices that fall
outside of the normal regulations, and, as the Chairman has
documented, there are certainly a lot of improvements needed to
be made at PHMSA, especially in the record keeping and those
areas; and that is what this hearing is all about today, to
talk about those issues.
So I look forward to hearing from PHMSA and the Deputy
Secretary on how they play to improve the process, including an
explanation of the action plan that you have developed to take
care of some of these problems.
I also look forward to hearing from the institute of the
makers of explosives about advances in the safety of
transporting blasting materials essential to mining and
construction industries. Given the inherent risk associated
with transporting materials designed to explode, the industry
does have an outstanding safety record. The use of multi-
purpose bulk trucks, or MBTs, allows the industry to move a
wide range of materials necessary for blasting operations in
the same vehicle, thereby reducing the total number of vehicles
carrying hazmat over the highways; and, remarkably, these MBTs
have never caused a single injury or fatality in
transportation.
I think we need to strike a balance in hazmat
transportation policy between making sure that appropriate
safeguards are in place, while at the same time being careful
that we do not unnecessarily burden the workhorse industries of
our economy. Safe and efficient transportation of hazardous
materials is enormously important to the national economy and
our way of life.
Twenty-eight percent, or nearly a third, of all ton miles
of annual freight on our roads, rails, waterways, and air cargo
is considered a hazardous material. These shipments include
everything from heating oil, gasoline, fertilizer, drinking
water, chemicals, and medical materials use to treat sick
folks. It is absolutely necessary that we are able to safely
and quickly deliver a wide range of potentially dangerous
materials without unnecessary bureaucratic interference.
Hazmat carriers have a remarkable safety record. The
percentage of movement of hazardous goods resulting in an
injury or fatality is an astonishing statistic. I have said it
before, but .00002 percent result in injury and about .000014
percent of movements result in a fatality. There are about four
times as many deaths caused by lightening strikes annually than
by hazardous material transportation accidents.
As I said, this is a remarkable safety record and I think
this is the measurement that we need to use to determine what
we are doing, if it is right or if it is wrong, not how many
permits are rejected. I think using that as a measurement is a
false sense of what an agency is doing and an industry is doing
and how it is performing.
Of course, when you are talking about moving dangerous
goods, there is going to be risk and there are going to be
accidents. There is no way to completely eliminate risk. What
we need to do is make careful choices about where we can best
use our resources to minimize the risks. I know that PHMSA is
very short-handed and it is very difficult for the number of
people they have to move forward on some of these things.
But we have to make the effort and we have to do what is
necessary to make sure that they do keep the records, that they
do have a process in place for these special permits, as much
for safety as for industry, so that they know, when they are
going to apply for a permit, they know what the process is and
they can count on some consistency when they are doing that. We
don't want to knot the system up and create red tape that will
cease to be effective for the user and that could damage our
economy and our society.
So I look forward to hearing from our panelists and, with
that, I yield back, Mr. Chairman.
Mr. Oberstar. I thank the gentleman for his comments.
Do other Members wish to be heard?
Ms. Brown. Mr. Chairman?
Mr. Oberstar. Ms. Brown.
Ms. Brown. Thank you, Mr. Chairman. First of all, I too
want to say happy birthday and thank you for your service on
this Committee. As I say, you are the guru of transportation.
Also, I want to thank Ranking Member Mica for holding this
hearing today on the Hazardous Material Safety Program. I also
want thank the staff for their hard work in investigating this
serious issue.
Each day, nearly 1.2 million shipments of hazardous
materials are moved by all modes of transportation. Over the
last decade, there have been over 170,000 incidents involving
the transportation of hazardous materials, resulting in 134
fatalities, 2,783 injuries, and more than $631 million in
property damage. More disturbing, the Pipeline and Hazardous
Materials Safety Administration has only 35 inspectors to cover
over 300,000 hazmat-related entities.
This issue is so important to the communities that see
hazardous material travel on their roads and railroads. At many
of the hearings we have held dealing with rail safety,
residents and local officials and firefighters and others have
expressed their concern with the transport of these dangerous
materials, and it is my guess that once they hear about what
the Pipeline and Hazardous Materials Safety Administration has
done or, more importantly, has not done, I am sure they will be
even more concerned.
There was such a lack of oversight and inappropriate level
of corporate influence during the Bush Administration that many
agencies have become dysfunctional. This is why I am pleased to
see that the Transportation and Infrastructure Committee is
making the effort to provide proper oversight to the agencies
within its jurisdiction.
In May of this year, I held a Subcommittee hearing on the
Department of Transportation's Hazardous Materials Safety
Program with all of the stakeholders to learn what improvements
needed to be made for the new hazmat reauthorization bill.
During the hearing it became clear that there were
significant problems in the program. The agency does not look
at its own data on accidents and incidents; it does not follow
up on unreported incidents; and it does not even review whether
a carrier should be registered to transport hazmat materials.
Let me say that again. The agency does not look at its own data
on accidents and incidents; it does not follow up on unreported
incidents; and it does not even review whether a carrier should
be registered to transport hazmat materials.
It grants an alarming number of waivers from important
safety regulations and provides with little or no oversight on
permit holders. And it has so few inspectors that I cannot
understand how they can begin to inspect 300,000 hazmat
entities to make sure that they are complying with the
regulations and the terms of the waiver.
The subsequent investigations by Committee staff and the
DOT Inspector General confirmed what the Subcommittee heard
from witnesses at our hearing and even uncovered additional
problems with current Hazmat Safety Programs.
I am hopeful that the new Administration is willing to work
harder at administering these important Hazardous Materials
Safety Programs and look forward to hearing how they plan to
fix the serious problems.
With that, I want to welcome today's panelists and thank
you for joining us. I am looking forward to hearing their
testimony.
Thank you, Mr. Chairman, for holding this hearing.
Mr. Oberstar. And thank you for your previous work on the
hearing that you conducted as Chair of the rail Subcommittee.
It laid the groundwork for today's hearing.
Mrs. Capito.
Mrs. Capito. Thank you, Mr. Chairman. Briefly, I would like
to make a brief opening statement. I would like to thank the
witnesses for being here.
Representing the State of West Virginia, in looking at the
States that are listed by consumption of explosive materials,
our State is number two; number one being Wyoming, number two
being West Virginia for, I think, rather obvious reasons. But,
in West Virginia, if you want to built a road, you need
explosive materials. If you want to create a mine, you need
explosive materials.
So it is extremely important that these materials are
safely transported to the mine site or the construction site.
And it is done on a very frequent basis, obviously, in our
State, traveling all of the roads, not just the major highways,
but some of those little ones going up to where a lot of folks
live in the hollows and more rural parts of our State.
So I am very interested in this report. I am interested to
see what your plans are going to be going forward to address
some of the issues. So I appreciate the Chairman bringing this
to light and bringing it before the full Committee, and I look
forward to the testimony of the witnesses. Thank you.
Thank you, Mr. Chairman.
Mr. Oberstar. I thank the gentlewoman for her statement.
Yes, Wyoming, with the Powder River Basin coal mining
operations and West Virginia with highway and coal operations.
We in Minnesota, in my district, the iron ore mining industry
uses 300,000 pounds a day of explosives to extract the iron ore
from the rock harder than granite that fuels our steel
industry. We are very familiar with explosive materials. I have
been on mine sites, I have worked in the iron ore mines myself,
and I know what that is and what it means to have 55 to 60
million pounds a year of explosives on the roadways.
Other Members wish to be heard? Mrs. Napolitano?
Mrs. Napolitano. Thank you, Mr. Chairman. I was going to
wait, but you hit on some very key points, because, as I have
stated before, the products coming in from abroad travel
through my district; mini trains, a mile and a half long
carrying explosives or carrying all kinds of hazardous
material.
I have been involved in the issue of chlorine because we
have had spills in our Los Angeles area. You are talking about
12 million people and that is very, very important for us to
understand whether the fire department's placarding is
consistent, that they can read it as they are responding to an
incident, or whether or not the railroad is maintaining the
lines so there are no accidents because of hairline cracks in
the rails. I mean, all those come to play.
So what I am very concerned is whether or not the agencies
have enough budget, have enough personnel to be able to do all
the follow-up that is going to be required to consistently
apply to all the hazardous materials being carted so that there
is better safety. And while I understand that there haven't
been very many reported, what about the unreported accidents?
So those are things that I would like to hear, Mr.
Chairman, and would be able to have a lot more of, how should I
say, interest in. Thank you, sir.
Mr. Oberstar. Ms. Markey.
Ms. Markey. Yes, thank you, Mr. Chairman and staff, for
holding this important meeting.
In my own district we have dealt with two tanker trucks
crashing into the Poudre River in recent weeks. The Poudre
River provides drinking water for two of the major towns in my
district, Fort Collins and Greeley. The first spill, about
three weeks ago, dumped 5,000 gallons of tar into the river and
EPA contractors had to be brought in with cranes to lift out
large sections of asphalt out of the river.
Within two weeks, a second tanker crashed into the same
river, releasing 7,000 pounds of liquid asphalt and gallons of
diesel fuel. Incidentally, because crews were still cleaning up
the first spill, they were able to contain the second spill
rather quickly. Both drivers were cited with careless driving
and the main contractor is no longer allowed to have asphalt
trucks on the highway until it can prove to the Colorado DOT
that it has a safety plan in place.
Fortunately, in this situation, there was not a great
threat to public health. However, I cannot imagine the
repercussions if the asphalt had been a more hazardous
chemical. I applaud the efforts of those who have helped
contain the effects of these spills into the Poudre River and I
look forward to discussing and establishing increased oversight
of the Pipeline and Hazardous Materials Safety Administration.
Thank you.
Mr. Oberstar. Thank you for that very personal touch to
this hearing; it brings it much closer to home when you have
those experiences.
Mr. Hare.
Mr. Hare. I will just adapt, if that is OK with you, Mr.
Chairman. Let me just thank everybody for being here today. I
want to join my colleagues in wishing you a very happy birthday
and I want to thank you and the Ranking Member for holding this
important hearing today. I commend you for the sense of duty
that you have in leading this Committee in effective oversight
of the United States Department of Transportation's Pipeline
and Hazardous Materials Safety Administration.
As we know, PHMSA is the leading agency responsible for
regulating and monitoring the movement of hazardous materials.
It was created in 2004 under the Norman Y. Mineta Research and
Special Programs Improvement Act and was proceeded by the
Research and Special Programs Administration. The role of PHMSA
is clear: to protect the American people by ensuring the safe
transportation of hazardous material.
Mr. Chairman, after learning of the finding of both the DOT
Office of Inspector General's audit of PHMSA's Hazardous
Material Safety Program, in particular the Special Permits and
Approval Program, as well as findings from the Committee
staff's recent investigation, I am very concerned that PHMSA is
not fulfilling its role. I am most concerned with the
revelation that PHMSA has failed to maintain an arm's length
relationship with industry and, in doing so, has lost sight of
its main focus, which is public safety.
Now it is our responsibility, as the Committee of
jurisdiction, to examine these issues and ensure that PHMSA has
what it needs to do the job that it was created to do, ensure
safety of our hazmat workers and non-profits.
I look forward to hearing from the witnesses today.
Let me again thank you, Mr. Chairman and the Ranking
Member, for holding this important meeting, and I would yield
back.
Mr. Oberstar. I thank the gentleman.
Mr. Ortiz?
Mr. Ortiz. I really don't have any statement, but this is a
very, very important and serious hearing. With all the kind of
material that is being moved, I would just hope that we could--
and I am just waiting to see if I can stay here long enough,
because I have another meeting--to listen to your testimony.
But Texas is a big State, as you well know, and we move tons
and tons of stuff all over the highways, and just because we
haven't had an accident doesn't mean that there isn't one that
could happen that could destroy a lot of lives.
So, Mr. Chairman, again, to you, happy birthday, 25th
birthday. Congratulations. I wish you many more and thank you
so much for having this hearing today, because it is a very,
very important hearing. Thank you so much, Mr. Chairman.
Mr. Oberstar. Thank you. I thank all of you. In preparation
for this landmark occasion, I went out and rode 75 miles over
the weekend on my bike, not on my car.
If there are no other requests, we will begin with
Inspector General Scovel.
TESTIMONY OF THE HONORABLE CALVIN L. SCOVEL, III, INSPECTOR
GENERAL, U.S. DEPARTMENT OF TRANSPORTATION, WASHINGTON, D.C.;
AND THE HONORABLE JOHN D. PORCARI, DEPUTY SECRETARY OF
TRANSPORTATION, U.S. DEPARTMENT OF TRANSPORTATION, WASHINGTON,
DC.
Mr. Scovel. Mr. Chairman, Ranking Member Shuster, Members
of the Committee, thank you for inviting me here today to
discuss PHMSA's Special Permits and Approvals Program. My
testimony focuses on weaknesses we have identified and how
PHMSA authorizes and oversees these exemptions to hazmat
regulations, weaknesses that call for a fundamental rethinking
of PHMSA's approach.
As currently structured, PHMSA's Special Permits and
Approvals Program carries little assurance that hazmat will be
safely transported. This is evidenced by PHMSA's practice of
granting permits without full knowledge of applicants' safety
histories and the agency's record of inattention to
longstanding safety issues.
First, PHMSA does not look at applicants' incident and
compliant records when granting, renewing, or allowing party-to
permits. We found this to be the case even when applicants had
multiple incidents and enforcement violations for years prior
to receiving their permit. For example, PHMSA granted a special
permit to a company to operate bulk explosive vehicles, even
though that company had 53 prior incidents, 9 of which were
serious vehicle rollovers. Of particular concern is PHMSA's
practice of granting special permits to trade associations,
effectively giving a blanket authorization to thousands of
member companies without any assessment of their safety
histories or need for the permit.
PHMSA also grants special permits and approvals without
thoroughly evaluating applications. PHMSA's reviews of 65
percent of the 99 permits and all 56 approvals we looked at
were either incomplete, lacked evidence of an equal level of
safety finding, or simply non-existent.
Further, PHMSA's risk-based oversight criteria omits a key
rating factor that should drive compliance reviews, that is,
whether a company holds a special permit or approval. However,
our visits to 27 companies found that more than half did not
comply with the terms of their permits. Some officials did not
know which permits applied to their location and some were
unaware that they even had a permit to abide by.
PHMSA's lack of coordination with FAA, FRA, and FMCSA
exacerbates these weaknesses. These agencies may have critical
safety data on applicants seeking a permit. Yet, we found PHMSA
did not coordinate 90 percent of the new and party-to permits,
or any of the renewals we reviewed. PHMSA also did not
coordinate most of the emergency permits we reviewed, even
though the law specifically requires that coordination.
The second vulnerability we identified is PHMSA's
inattention to longstanding safety issues. Most notably, PHMSA
ignored safety concerns regarding transportable explosives,
concerns first raised by its own Office of Hazardous Materials
and Enforcement over two years ago. We called for PHMSA to take
action on this in our July 2009 management advisory.
This is not the first time longstanding safety concerns
have gone unaddressed. There has been intense debate among
PHMSA, FAA, NTSB, and other aviation stakeholders on the safe
transport of lithium batteries by air. Last year, eight lithium
battery incidents involving air carriers occurred, two of which
were life-threatening, and we have seen six so far this year.
Yet, PHMSA has not stepped up its coordination efforts or
addressed all of FAA's and NTSB's concerns.
For example, we found PHMSA granted an emergency special
permit in 2008 to ship lithium batteries by air with a
poisonous gas normally not allowed on aircraft. According to
FAA, PHMSA did not explain how an equal level of safety would
be met or provide safety measures for the pilots. PHMSA is
working with FAA to propose changes to the Department's
recently amended rule requiring safety measures for air
transport of lithium batteries; however, these efforts only
began after serious incidents and high-level departmental
attention.
In closing, I want to recognize Secretary LaHood and Deputy
Secretary Porcari for their leadership in directing PHMSA to
develop an action plan in response to our recent advisory on
PHMSA's special permit process. PHMSA's plan shows promise and
we will continue to monitor its progress. In addition, we
believe the actions described in Deputy Secretary Porcari's
statement could address many other fundamental weaknesses we
have identified. The Secretary and Deputy Secretary's continued
support will be critical to successfully implement these
planned actions and achieve the intent of the program, that is,
to ensure permit holders safely transport hazardous materials.
This concludes my statement, Mr. Chairman. I would be happy
to answer any questions you or Members of the Committee may
have.
Mr. Oberstar. Thank you very much, Inspector General
Scovel. Your entire document will be included in the Committee
hearing record at this point. It is a comprehensive detailed
analysis of this agency and its shortcomings, and your
recommendations for improvements. We will get to those in a
bit.
Deputy Secretary Porcari, congratulations, first of all, on
your appointment to the position. I have known you from the
time you served in Maryland as secretary and you have already
made a good start within the Department.
Mr. Porcari. Thank you, Mr. Chairman. Mr. Chairman, Ranking
Member Shuster, and distinguished Members of the Committee, on
behalf of Secretary of Transportation Ray LaHood, I appreciate
the opportunity to discuss the Pipeline and Hazardous Materials
Safety Administration's Special Permits and Approval Program.
I have been briefed by your staff on a number of serious
deficiencies in and concerns with the Hazardous Materials
Program, including its Special Permits Program. I have also
been briefed by the Department's Office of Inspector General
regarding the Hazmat Special Permits Program and the advisory
that the Office of the Inspector General issued on special
permits for explosive mixing trucks. I have also been briefed
on a 2008 internal review of PHMSA's safety culture regarding
perception of the agency's employees as to the safety
commitment of the agency.
Mr. Chairman, Members of the Committee, I share your
concern that the agency is off track on its primary mission,
safety. Let me be clear. Secretary LaHood and I regard
transportation safety as the Department's primary mission and
we are taking action to get PHMSA back on that mission. I would
like to report briefly on the actions we have taken to begin
this process and to address some of the immediate concerns.
First, the Department has a detailed action plan, which you
have been provided copies of, to address the safety concerns
raised by the Inspector General about the Special Permits and
Approval Program. Before I discuss the specifics of that, I
would like to also briefly describe the importance of the
Special Permits Program to our overall regulatory program.
DOT issues special permits under the authority provided in
the Federal hazardous materials transportation law. Special
permits allow the industry to quickly adopt and utilize new
technologies and new ways of doing business that may not be
accommodated in the regulations. DOT also issues special
permits on an emergency basis to facilitate emergency
transportation, such as to authorize the transportation of
supplies to areas affected by natural or manmade disasters. By
law, special permits must provide a level of safety equivalent
to that required by the regulations or a finding that is
consistent with the public interest and Federal hazardous
materials law if a required level of safety does not exist.
Every year, DOT issues approximately 120 new special
permits, authorizes approximately 100 modifications to existing
special permits, and issues approximately 1100 renewals. New
special permits may be authorized for up to two years, at which
time they may be renewed for a period of up to four years.
Obviously, this is an important part of the program. We
recognize there are deficiencies and we are working hard to
address these deficiencies with the detailed action plan that
is submitted. Briefly, we have taken the following actions:
one, conducted a comprehensive top-to-bottom review of current
written special permit policies, procedures, and practices to
ensure that the safety goals are met; two, review the criteria,
policy, and procedures used to make the legally required
equivalent level of safety determinations and revise those
procedures where necessary; three, develop enhanced written
procedures to provide for better coordination for the issuance
of permits with the Federal Motor Carrier Safety
Administration, the FAA, the Federal Railroad Administration,
and the Coast Guard; four, to clarify PHMSA policy to assure
the trade associations are not holders of special permits; and,
five, by February, the Pipeline and Hazardous Materials Safety
Administration will have a business plan in place to create a
centralized data analysis office to improve the data quality
and the information technology systems that are currently in
place.
This new technology will greatly enhance the productivity,
accountability, and overall safety performance responsibilities
of the Hazardous Materials Office of Special Permits. The new
system will include an online application that will not be
processed until completed, a mechanism for alerting holders of
special permits 90 days in advance of the expiration of the
permit and a notification system to communicate safety
concerns.
An additional part of the action plan was developed to
address the concerns raised in the OIG advisory related to
explosive mixing trucks. It includes issuing a notice of
proposed modification of the special permits for explosive
mixing trucks to provide additional safety conditions,
including vehicle inspection and maintenance, enhanced driver
training, incident reporting and investigation, fire prevention
and emergency response plans.
It also notifies special permit holders of the intent to
evaluate each holder's fitness to operate these trucks. These
stakeholder responses are due in September. It includes
conducting fitness reviews of current special permit holders to
assure compliance with the permit terms and a review of expired
permits; contracting for an independent risk assessment of
explosive mixing trucks in transportation; reviewing
documentation, including safety assessments and analysis, to
ensure that documentation supports the issuance of a special
permit; and rescinding any special permit authorized for a
holder who is considered unfit to safely transport these
materials. Our action plan will evolve and update as necessary.
As I mentioned, I was briefed late last week by your staff
on the findings of the Committee investigation. You identified
specific concerns. These are concerns that the Secretary and I
share, including that our data analysis capability is totally
inadequate to ensure that the hazmat program is data driven and
able to focus on the greatest hazards. I want to assure the
Committee that we will work with you to address all of these
important issues that you so diligently raised.
The rest of that is submitted for the record. I would
conclude by mentioning the lithium battery regulation. The
Committee has expressed interest in the notice of proposed
rulemaking on lithium batteries. It is clearly a very important
issue. The Department has forwarded to OMB a notice of proposed
rulemaking yesterday for review on that, and we will continue
moving on that as well.
Finally, and perhaps most importantly, safety culture,
which, Mr. Chairman, you clearly listed in your opening
remarks. Re-establishing a safety culture is perhaps the top
priority. It is an ongoing effort. We expect, within the next
90 days, the employees will once again view the organization
and its leadership as strongly committed to its safety mission.
The fact that Secretary LaHood has specifically detailed me
to oversee this I think is an indication of how serious we take
this. We will, again, revise procedures; we will update
requirements; we will institute new rulemakings where
appropriate. Our first priority is and will continue to be
safety. We will not tolerate agency actions that undermine our
commitment to safety and we will rescind or deny renewal of
permits for unsafe actors.
Thank you. With that, I will be happy to answer any
questions.
Mr. Oberstar. Thank you very much, especially for those
closing comments about addressing the need for a culture of
safety at the agency. I would suggest a re-education session
for them. There are some very good actors and very good
conscientious personnel, and there are others who need to be
retrained, who look to the trade association representatives
for guidance, not to their leadership for guidance. That chain
has to be broken, and that will take the Secretary's
leadership, which he has already indicated, and yours, as you
have already undertaken.
Your DOT action plan I think is excellent. I don't see
anything there about association special permits, however. Have
you addressed that issue?
Mr. Porcari. Mr. Chairman, no permits will be issued to
associations. We are in the process of, as part of the action
plan, of making it clear that permits are not issued to
associations. After appropriate review, they are issued to
companies.
Mr. Oberstar. Does that mean that the Department will
terminate those 12 association authorities?
Mr. Porcari. We are in the process of and will modify,
terminate, whatever is necessary to make clear that each of
those permits and every permit is to an individual company, not
to a trade association.
Mr. Oberstar. Report back to us when you have completed
that.
Mr. Porcari. I will be happy to do that.
[The information follows:]
[GRAPHIC] [TIFF OMITTED] T2158.021
Mr. Oberstar. In the opening chapter of the law governing
transportation of hazardous material, section 5101 states the
purpose of this chapter is to protect against the risks to
life, property, and the environment that are inherent in the
transportation of hazardous material in intrastate, interstate,
and foreign commerce.
That is a rather unequivocal statement, yet, the trade
industry witness says the law says that PHMSA regulates against
unreasonable risk. That is a misstatement of the law. In
section 5103, general regulatory authority, in the subsection
designating material as hazardous, Secretary shall designate
material--and it lists the various types of materials--as
hazardous when the Secretary determines that transporting the
material in commerce in a particular amount and form may pose
an unreasonable risk to health and safety or property.
Do you have some recommendations for amendment of that
provision?
Mr. Porcari. Mr. Chairman, if there is something that we
are not doing there consistent with the overall safety mission,
we will modify it and do whatever we need to.
Mr. Oberstar. That is the current statutory language, form
that may pose an unreasonable risk to health and safety or
property. That is not the way safety is conducted or directed
in the FAA Act.
Mr. Porcari. That is correct, Mr. Chairman.
Mr. Oberstar. Safety, in the opening paragraph of the FAA
Act of 1958, the directive is safety shall be maintained,
safety in aviation shall be maintained at the highest possible
level. It doesn't say acceptable or unacceptable risk; it sets
the bar very high. And I invite your reconsideration of this
language to something that is measurable. This is a very
subjective statement in law, and we have the opportunity and
the authorization of surface transportation law to make
appropriate changes. So I would like your attention to that
issue and report back to the Committee.
Mr. Porcari. I would be happy to do that, Mr. Chairman.
Again, safety as a culture is also an ongoing process, there is
not an endpoint to it, and, in many ways, the Federal Aviation
Administration is the leader in the Department in that. I
should point out that Secretary LaHood has directed us to take
other measures beyond the subject of the hearing today to
institute safety as a Department-wide cultural imperative, and
when we say safety is our number one priority, these are
specific measures to make sure that that is the case across the
board.
Mr. Oberstar. I welcome that initiative. I welcome the
Secretary's firmness; he is a person of purpose and driven, and
he will achieve results. He is no-nonsense.
Inspector General Scovel, why special permits? Why the
modifications? Why 120 new special permit applications every
year? Why some 100 modifications, from your testimony, to
existing--I think maybe that is the Department's testimony--to
existing special permits? Why 1,100 renewals? It seems to me
that there is an inadequate structure to begin with. It seems
to me that there is haphazard, a case-by-case approach to the
regulation of safety in this agency.
Mr. Scovel. Mr. Chairman, we have had our audit ongoing for
the last 14 months into PHMSA's Special Permits and Approvals
Program. It quickly became obvious to us, first from the sheer
number of special permits and approvals--5500-plus permits,
118,000-plus approvals--that it appeared that the innovations
and the advancements and the improvements that industry has
come up with for the transportation of hazardous materials has
essentially swallowed the body of law that is contained in the
hazardous materials regulations in the Code of Federal
Regulations.
The Department hasn't had a structure in place, a strategy
in place to bring in the techniques and advancements
represented by the special permits and approvals, to bring them
into law. As a result, exemptions to the procedures and
processes specified in the regulations have been granted in the
form of these special permits and approvals. One of our
strongest recommendations to the Committee and to the
Department is that it establish a strategy for methodically,
and in a disciplined way, bringing the current technology, the
current practice, industry practice into regulations so that
the entire practice of special permits and approvals can be
brought under control.
Mr. Oberstar. That is a very important, very strong
suggestion, and one that we will follow up on.
This is a special permit issued by the Pipeline Hazardous
Materials Safety Administration. It was granted to a particular
company plus 84 other cargo carriers. It authorizes
transportation in commerce of hazardous materials in an
inaccessible location aboard an aircraft. Inaccessible meaning
the crew can't reach that place to put out a fire.
We heard this in the ValuJet crash with the oxygen bottles
carried loosely onboard, not protected individually, not
secured, and placed inside a tire that the aircraft was
carrying to another destination. And when they exploded, that
tire caught fire and provided fuel to the fire and brought the
aircraft down and lost lives.
Now, the crew was in no way able to access that
compartment, they were not aware that those oxygen bottles were
onboard, they were not aware that onboard they were not secured
or isolated one from the other; and that was 15-plus years ago.
You would think that somebody had learned a lesson in the
meantime. Apparently not. Explosives, flammables, poison,
corrosives covered by this special permit. And it specifically
says in any inaccessible compartment. How can they justify
that? Did you talk to them about that, Mr. Scovel?
Mr. Scovel. We did not. We know that that is a particular
concern of NTSB's with regard to the transport of lithium
batteries in inaccessible locations aboard cargo aircraft. As
the Committee may know, cargo aircraft aren't required to have
fire suppression systems, and, in fact, the standard fire
suppression system aboard any passenger aircraft isn't capable
of suppressing most lithium battery fires should they happen in
a passenger aircraft. It is a particular concern.
One of NTSB's key recommendations, in our view, is that
when lithium batteries are to be carried in inaccessible
locations, that they be carried in fire-resistant containers.
NTSB has been fighting this battle for 10 years; it is still
not satisfactorily resolved, in our view.
Mr. Oberstar. That is just unacceptable. There are many
others. I will conclude for the moment on this one. Issued
November 9, 2006, this emergency special permit authorizes
transportation in commerce of nitric acid, etcetera, etcetera.
It waives the requirements for marking, for labeling, for
shipping papers; waives the requirement for aviation stowage
requirement; it waives the requirement for notice to the pilot
in command. In November 1973, nitric acid carried aboard an
aircraft on a PanAm Airline aircraft resulted in emergency
landing in Boston and three crew were killed.
The argument that there are only a few of these, until
someone's life is lost. Now, if you are operating in a
haphazard structure and comforting yourselves saying we haven't
had many fatalities, only a few or it is only rare, then try
being one of the family members. Try putting yourself in the
position of those who have lost a loved one or being aboard one
of those horrible accidents and dying a painful death. That is
not acceptable.
Mr. Shuster.
Mr. Shuster. Thank you, Mr. Chairman.
Mr. Scovel, I think we all agree, especially on the heels
of what the Chairman said, that there has been haphazard, the
process hasn't been in place that needs to be; we have
uncovered a lot of shortcomings and failings at PHMSA in its
record-keeping and the like. I don't know that I have seen it,
but can you assess the overall safety record within the hazmat
materials movement industry? What is the assessment of the IG's
Office on the overall record?
Mr. Scovel. Mr. Shuster, I can't speak to the overall
record of the industry as a whole. The focus of our recent
audit has been the Special Permits and Approvals Program
administered by PHMSA itself. We have found serious
deficiencies in the program design and execution of the Special
Permits and Approval Program that leads us to question,
frankly, whether there has been the exercise of due diligence
in that particular office within PHMSA and the safety culture,
the understanding of safety culture within that office. My
recent work wouldn't qualify me to speak to industry practice,
however.
Mr. Shuster. It would seem to me that would be an important
part of the IG's role, to assess the situation and what are the
outcomes, good or negative. Again, the records I see are that
it is still a remarkably safe record, in spite of the fact that
the process is flawed and failed and needs to be improved.
You mentioned something about these special permits, that
the advances in technology and improvements in industry have
swallowed up the law. Can you be more specific? That sounds
like a positive--well, it sounds like the law is lagging way
behind and needs to be changed because there have been
advancements in the industry. Can you address that more
specifically?
Mr. Scovel. Yes, sir. In fact, I can give you an example.
The hazardous materials regulation specifies a procedure for
carrying certain hazmat in rail tank cars. In fact, the process
for that that is specified in the regulation has been overtaken
by events within the industry; a much safer rail tank car is
now standard within the industry. By our accounts, it has an
excellent safety record. Yet, the regulation itself hasn't been
updated to incorporate the new technology. Rail companies still
need to apply for and renew special permits to use the latest
technology instead of the older one.
To return to your earlier question, sir, about practice
within the industry, I can say, from our experience with trade
associations and the agency's practice of granting special
permits to trade associations, that those bodies have not been
diligent across the board either in keeping their members up to
date on what the permits entail, indeed, even whether certain
members are the recipients, through their trade association, of
permits to begin with.
And we have had experience in our field visits with
companies that told us, in fact, that they had recently been
informed in kind of a good news-bad news phone call from their
trade association, good news, oh, that practice that you have
been engaged in for some time now, carrying hazmat in a
particular manner, we forgot to tell you have a special permit,
so you may be covered; bad news, there may be a team of OIG
auditors on the way to check and see how you are carrying it
out.
So I suppose that is an indicator of some sort on the state
of play within the industry or at least how certain trade
associations view their responsibilities.
Mr. Shuster. I would hope these trade associations, one of
their roles should be informing and help to keep that industry
up to speed on where safety issues are, and I think the trade
industry is not doing that, is failing their membership
significantly.
Mr. Scovel, do you believe that PHMSA's action plan
addresses most of the concerns that you have raised?
Mr. Scovel. It does address most of the concerns and we are
very grateful to Deputy Secretary Porcari and Secretary LaHood
for their leadership at the top levels of the Department in
bringing home to PHMSA the importance of both our findings and
the Committee's staff's findings regarding deficiencies, in our
case, of special permits and approvals. We do recognize, as we
work through the action plan, that at this point it is rather
high level. It has a list of actions, it has a time line for
carrying those out. Of course, we recognize it is a work in
progress; the Department will need to add detail to it, they
will have to tag resources to actions, they will have to
recognize limitations and develop strategies to overcome those.
The Chairman questioned the Deputy Secretary on an omission
from the action plan regarding a plan to address special
permits issued to trade associations. Frankly, it is not clear
in my mind that PHMSA or the Department is going to follow up
with all 5,000-plus individual members of trade associations
who may have derivatively received special permits. The agency
basically has to follow up with an individual fitness
determination in the case of every single company, and we hope
the Department will commit to that level of effort.
Mr. Shuster. That is going to obviously take resources. If
I could, just one final question. Are the resources in place? I
guess that is not a fair question; they are not in place,
whether they are human resources or technological advances.
Have you assessed is it going to take a lot more personnel or
can you overcome some of these shortcomings by technology?
Mr. Scovel. It will take a combination of two, Mr. Shuster,
certainly technology, better data systems are required. The
Deputy Secretary acknowledged that in his statement to the
Committee. It is going to take time and a strategy. Frankly,
some sizeable number of those special permit holders that have
received their permits supposedly through their trade
associations, a good number of those aren't engaged in those
practices at all, as we have learned in our field visits. Some
of those can be sliced off the top. There will be some number,
however, who are left who are engaged in the practice. The
agency hasn't done an individual fitness determination in the
cases of those companies and they need to get to it.
Mr. Shuster. Backtrack there a little bit. You said there
are some companies that are doing a good job? Is that what I
understood you to say?
Mr. Scovel. Yes. If I can be specific. As part of our
examination of this practice of granting permits to trade
associations, we visited 18 companies that belong to 7 of the
12 trade associations. We found that 10 of those 18 were not
performing the activity in the special permit. So not
applicable, they may be cut off from the permit, no further
review needed.
Four companies were not located at the address provided by
their association. Association clearly not on the ball. They
didn't know, PHMSA doesn't know. That needs to be updated.
Three companies, 3 of the 18, had compliance issues we found
regarding shipping papers, training, security plans; and these
are essential plans of any comprehensive hazmat program. Two
companies didn't know that a special permit applied to their
activities. Sir, basically, we found that one company out of
the 18 appeared to be in compliance with the terms and
conditions of the special permit.
Mr. Shuster. Thank you very much.
Mr. Oberstar. Those last comments are very powerful, very
revealing, and troubling; more than troubling, disturbing. In
further response to Mr. Shuster's question about safety, my
dictum has been that safety begins in the corporate board room;
not in the regulatory agencies, not in this Committee, and not
in the Congress. It begins in the corporate board room. They
have the first responsibility. Airline executives have that
first responsibility.
But the role of safety in aviation goes back to 1926 and
Herbert Hoover, when he was Secretary of Commerce, and more in
the interest of developing aviation as a commercial activity
than for safety of personnel. There was only the pilot, there
was no passenger air service in those days. But he initiated
the first aviation safety rulemaking of the Federal Government
in 1926 as Under Secretary and later Secretary of Commerce.
In those days, it was not uncommon for a wing to fall off
an aircraft in flight. It was not uncommon for an engine to
fall off the aircraft in flight. That was bad manufacturing.
But it went back to the corporate structure of being safe
before you put an aircraft out in flight.
So there is and there are examples in explosives material
transportation of board rooms with a culture of safety. I
visited one over the past weekend in my district, where they
typically handle 300,000 pounds of explosives a day during the
mining years. They are very meticulous. They supervise their
drivers; they put them through training and retraining
procedures. They have worked to perfect the transport vehicles
themselves. I talked with every one of the drivers
individually, apart and away from the company management. They
are doing their very best. And they question the regulatory
structure that is in place. They are doing what they think is
the best practice.
And then as to the incidents, here is a report, an internal
document in PHMSA, May 11, 2007, estimating the extent of
under-reporting of hazmat incidents. There are many reasons to
suspect that carriers are under-reporting hazmat incidents. It
goes on in the opening paragraph, preliminary conclusion, the
incidents that are reported to us might represent only 10 to 40
percent of all incidents that are actually occurring. That
would mean that we are missing from 60 percent, that is, 26,000
incidents a year, to 90 percent, that is, 151,000 incidents a
year. Our database reflects only 17,000 incidents a year.
From 2006 to June 2009, there were 1,450 unreported and
only 7 enforcement actions. That is not a culture of safety.
That is not carrying out your responsibility. This was an
internal report and wasn't acted on by senior management; they
just dismissed it.
Next, Ms. Brown.
Ms. Brown. Thank you.
First of all, let me thank both of you gentlemen for your
leadership in this area. As we begin to do the reauthorization,
I guess a couple of things point out in my mind. First, I want
to start with you, Mr. Secretary. My staff used a strong word,
termination. I don't want to use that. I think the leadership
should decide on whether someone should be terminated.
But I do think it should be some kind of a shakeup or a
moving of the chairs. What has happened in the agency? Because
I understand that there has been contact with the companies,
letting them know investigations are going on. What is it that
people in the agencies need to understand that safety doesn't
have anything to do with who is in the Administration.
Everybody needs to do their job.
Mr. Porcari. It is an excellent question, ma'am. First, it
starts at the top. As Deputy Secretary, I am directly engaged
in this. I will stay engaged. I am not going away. It is a
process that, as the Inspector General pointed out, as we go
forward with the action plan, we will get into more and more
detail.
Building a culture of safety and keeping that culture of
safety in the agency is going to require that message from the
top. We will shortly have a nominee as the administrator. That
is an important part of the puzzle. The working relationship
between the special permits process, the enforcement process,
our sister agencies within DOT and referrals, all of those need
to be fixed and will be, and we will make the organizational
and personnel changes necessary to carry this out. Again, this
is a public trust issue, it is a fundamental responsibility.
These are substances that are necessary for our everyday lives
and for our economy, but we are committed to doing this safely.
It is, I think, clear that we took our eye off the ball at some
point. We are focused like a laser on it now.
Ms. Brown. Well, I want to thank you for your leadership in
this area. As I said earlier, we have had hearings all over the
Country where these issues of hazardous materials coming
through the community, whether it is the firemen that were
talking to us when we went to Mrs. Napolitano's district,
whether it was the elected officials, this is the issue that
comes up. They are concerned. They want to know and they want
to know that we are doing our job and we have the oversight. So
I am very interested in what recommendations you think we need
to put in the bill to make sure that we have the safeguards
there.
Mr. Porcari. It is clear, as, again, the Inspector General
pointed out, from the size of the body of special permits that
it is difficult to keep up with changing technology and the
state of the art, and at the same time, as the Chairman pointed
out, the level of safety and the requirements for safety, that
bar is getting higher with time, as it should. I look forward
to working with you through the authorization process because
it really is an opportunity to fundamentally reevaluate where
we are now, where we should be, and how that authorization can
be one of the mechanisms to get there.
Ms. Brown. I understand there are only 35 employees. It is
not that I am interested in revving up, but we want to know
that we have the appropriate number and we can use the new
technology.
Mr. Porcari. Staffing is certainly a part of it. Data is a
very important part of it. Any safety process where you have
safety management systems and you have a culture of safety, you
can't do that without the proper data and mining and analyzing
that data correctly. We are way behind the curve on that; that
is clearly one of the most important parts of the effort here.
Ms. Brown. Thank you.
Mr. Inspector General, thank you again for your leadership
in this area. You have done a good due diligent job in keeping
us informed and doing the oversight that is needed. I guess my
question to you, in listening to the staff, they indicated
there were eight serious violators that have--you know, when we
did the research, they really have violated all of the rules.
What can we do to flag them today as we speak?
Mr. Scovel. Ms. Brown, I would have to consult with my
staff and probably Committee staff as well to understand those
individual cases. However, if I can generalize by saying that,
as the Deputy Secretary has acknowledged, proper acquisition of
data, proper use of that data is a problem with PHMSA. As that
problem is fixed--and I am very confident that, through the
Department's leadership, it will be--that violators of the type
you describe can be identified.
At that point there needs to be a very careful, a very
diligent effort to make sure that, as part of the risk-based
oversight system that PHMSA, like all modes in DOT, must
employ, that those violators are flagged for further compliance
reviews and, if necessary, any permits or whatever are
terminated, suspended, addressed in the appropriate fashion as
provided for due process and by regulation.
Ms. Brown. Do you think that the Department of
Transportation has the tools that they need working with other
safety organizations to do the job for the communities that we
represent?
Mr. Scovel. Not yet, ma'am.
Ms. Brown. OK.
Mr. Scovel. And the Department itself has acknowledged
that, both in terms of staff, perhaps numbers--I don't want to
prejudge that, but in terms of staff outlook or safety culture,
their training most certainly, because, in all fairness, some
of these practices that we highlighted in our statement for the
Committee today developed many years ago. For instance, the
oldest trade association special permit that we identified
dates back to February 1994, and it has become a practice,
apparently, that nobody has questioned until now. So the
current crew in Special Permits and Approvals, they have been
working with what they have been given. They certainly need to
be re-educated and retrained.
Ms. Brown. Well, I am very interested in what your
recommendations are as far as what we need to do as we develop
and move forward on the reauthorization bill.
Thank you again for your leadership, both gentlemen.
Mr. Scovel. Thank you, ma'am.
Ms. Brown. [Presiding] Mrs. Napolitano.
Mrs. Napolitano. Thank you, Madam Chair.
I am listening with great intent on the hazardous
transportation of materials. In my particular area, we do a lot
of chlorine because of water treatment plants that we have and
others. Years ago, I went to one of the chemical companies to
see how they were transporting chlorine. At the time, the
transport tubs that were plastic were not double-walled. They
were beginning to get into double-walled.
Well, that poses a great concern because they travel by
truck to get them to these areas after they unload them from
the railroad. Concern is there is the current thinking that
there is a substitute to chlorine or that they should move the
chlorine generation plants closer to the sanitation districts
or to the water districts for being able to avoid these long
transportation areas or having to transport them long
distances.
Are you, in any way, shape or form, aware of anything that
they are doing in transportation of chlorine gases?
Mr. Porcari. Ma'am, I am not personally aware of any
changes in the transportation of chlorine gases. What I would
like to do is actually get that information to you and provide
it to the Committee.
Mrs. Napolitano. It would be very helpful, because I work
with the Councils of Government and three of them represent
probably about seventy-some odd cities out of the 85 in Los
Angeles County alone, and they are all very, very concerned
about any releases in their area because it is so compact.
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The other question I have is the hazmat placards on rail
cars. That has been an issue in my communities for the last 15,
20 years, that I know of. Some railroad companies supposedly
are looking to get rid of the hazardous material placards on
railroads and keeping them within the engineer's cab. To me,
that is ludicrous, because what if that particular train piece
is injured or derailed, or in smoke, whatever? Then how are the
hazmat folks being able to respond what is on that train?
Mr. Porcari. Ma'am, the placarding is an important part of
the safety process, knowing, as you point out, what is in that
particular rail car or in that container. I am not aware of any
pending waiver of those requirements, but, again, what I would
like to do is go back and check that and report to the
Committee.
Mrs. Napolitano. OK. It seems to me there was some
discussion, particularly on this Committee, a couple years ago
in regard to the viability of being able to do away with them
because of the terrorism issue, that they could target those
particular cars. So that is what brought that particular issue.
But I would really appreciate it if this whole Committee would
be able to get that information.
Mr. Porcari. I would be happy to do that.
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Mrs. Napolitano. I am assuming that you work with the local
entities like the Public Utilities Commission and the hazmat
areas to request from them information about situations where
it may not be reported by the carriers, whether it is rail or
truck.
Mr. Porcari. One of the deficiencies we have right now is
actually gathering that kind of data to make sure that we have
comprehensive information on incidents that may not otherwise
be reported. We know that is one of the activities that we have
to do a better job on and that is part of what we want to do
going forward.
Mr. Scovel. Thank you, Mrs. Napolitano. Perhaps our work
can shed a little bit of light on your concerns. Signage and
placarding are tremendous issues when we are talking about any
first responders, police or fire and so forth. As part of our
examination of special permit or approval holders, we visited
27 companies in the field, and we found that 59 percent of them
were not in compliance with at least some of the terms of their
special permits, and those special permits specified the type
of signage or placarding that would be required for that mode
of transportation and that particular hazardous material, and
signage problems were prominent among those that we identified
among those special permit and approval holders.
Mrs. Napolitano. Well, this concern came out from one of
the local fire departments, who has a cooper rating, and one of
the firemen lived in the general area where one of the BNSF
trains would go by. He said he couldn't identify the hazardous
placards. So, to me, that shows that there is no cooperation
between them to be able to help standardize them so they can be
recognized.
Then the last question very quickly is budget and
personnel. While I know that you are short, there are not that
many inspectors that you have, what will help to be able to
ensure that we continue to focus on public safety?
Mr. Porcari. As you correctly point out, ma'am, there are
budgetary implications to this. We are looking at that right
now, both personnel issues, the information technology needs,
and there is substantial cost involved with that. In the
conversations I have had with the Secretary on this topic, he
has made it very clear that safety is paramount, that we need
to, as we are working through the budget process on a multi-
year basis, make sure that that is reflected in our priorities.
We are in the process of sorting that out right now.
Mrs. Napolitano. Thank you, Madam Chair. I think that would
be very good information for the Committee.
Ms. Brown. Thank you.
We are going to stand in informal recess for about 30
minutes. We have three votes and we are going to start with my
friend when we come back. OK? All right, we are in informal
recess.
[Recess.]
Mr. Oberstar. [Presiding] The Committee on Transportation
and Infrastructure will resume its sitting. Apologies to all
witnesses and Members and others for the over-long interruption
by votes on the House Floor.
There are a few things yet to be reviewed. What troubles
me, Mr. Secretary and Mr. Scovel, is this June 16 request or
previously the decision was made by Pipeline and Hazardous
Materials, a request from FAA to test the compliance of various
airlines' hazmat handling procedures. The FAA made that request
in 2005, August of 2005.
It took nearly a year for the Office of Pipeline and
Hazardous Materials to respond, and they denied the request of
FAA to undertake compliance testing of their airlines' hazmat
handling procedures, while at the same time approving a number
of special permits and extensions and approvals, which are a
curious component of this agency's operations.
How in heaven's name can they justify that conduct? The
words of the denial are your application did not contain
information to demonstrate that your proposal would be in the
interest of the public. How can it not be in the interest of
the public for the Federal Aviation Administration to conduct
compliance review of airlines' participation in and compliance
with movement of hazardous materials, especially in the
aftermath of the Value Jet crash, especially in the aftermath
of other incidents that we know about, that I know about of
hazmat movement onboard aircraft?
Do you want to start, Mr. Scovel?
Mr. Scovel. Mr. Chairman, if I may, I confess I have no
answer to you. We are as mystified as you appear to be by
PHMSA's response to FAA's request. I will simply note that
FAA's request was taken in response to a recommendation
contained in our 2004 report, which examined FAA's own hazmat
program. FAA, to its credit, accepted that recommendation,
concurred in it and attempted to move out, and apparently was
stymied by a PHMSA decision.
Mr. Porcari. Mr. Chairman, likewise, I cannot explain the
decision at the time. I will tell you, having been made aware
of it and looking into it, it does not make sense to me. I have
recently asked the FAA if they still believe it is worthwhile
doing this and they want to do it. They have indicated yes and
we are going to go ahead and do that.
If there are concerns about crew members, for example,
being confused by this labeling, if that was the concern, we
can certainly make accommodations to notify the crew as to what
is going on. There are ways to do this. My observation is I
thought it was actually a very valid and useful way of actually
testing some of the processes and making sure that the
labeling, packaging, and placement was correct. So FAA is
interested in doing it; we are going to go ahead and do that.
Mr. Oberstar. Thank you for that response, but I would read
from the request. The background, as Inspector General Scovel
just said, the FAA says that the Department of Transportation's
Office of Inspector General conducted an audit of FAA's
hazardous materials program, issued a report and recommended
that FAA develop and implement a covert testing program. That
information was submitted to PHMSA.
Further, FAA said that the FAA plans to ``package, mark,
label, and document the shipments as if they were normal
shipments of hazardous materials, but, for safety reasons, no
actual hazardous materials will be used in conducting the
covert tests.'' That is the responsibility of the agency, to
test, to test their own people. They conduct internal reviews,
audits, and evaluations of FAA maintenance inspection
personnel, procedures, activities.
This is an appropriate way to see whether the agency is
doing its work, whether the airlines are doing their work; and
they were denied, at the very same time that this agency
approves hundreds of special permits for the industry to carry
real hazardous materials.
All right, thank you for proceeding with that issue and
getting FAA back on track to doing their responsibilities.
This is a good lead into the weaknesses found in the
processing of approvals. The Inspector General's staff has
found this; the Department is aware of it; our Committee
investigative staff spent a good deal of time reviewing these.
Approvals are different from special permits. An approval can
be issued only if there is a specific provision in the
regulation that allows the Office of Hazardous Materials to
provide relief from a particular regulation. But consistently
there is no showing of the need for that special approval, why
the relief is requested, and it seems that while special
permits have a limitation, there is no limitation or time limit
on the approvals.
Mr. Scovel, you have spent a good deal of time on that
issue. What are your recommendations?
Mr. Scovel. Mr. Chairman, we have a number of
recommendations pertaining both to special permits and
approvals. Our recommendation, if we were to speak very
generally to the approval process, is that, like special
permits, there needs to be a clearly defined and uniform
approval application process, preferably web-based. We have
met, my audit team has met twice with representatives of
industry and this is one request that they have pointedly
addressed to us, not expecting, of course, that we were in any
position to approve it, but certainly hoping that we might
incorporate it into our recommendations for the Committee's and
the Department's consideration.
Mr. Oberstar. Mr. Porcari?
Mr. Porcari. Mr. Chairman, I agree with the clearly defined
and uniform part of it. We owe consistency and predictability
and transparency. That starts with asking the right questions
and making sure that we have a comprehensive application that
includes all the details that it needs to have. We clearly do
not have that in all cases now. That is one of the things,
going forward, that I know that we can do very quickly and will
do quickly.
Mr. Oberstar. These approvals are not published in the
Federal Register. Will you direct the agency to do that in the
future?
Mr. Porcari. The approvals are required to be in the
Federal Register; they will be in the Federal Register.
Mr. Oberstar. Have you sent a directive to PHMSA to do this
or you just told them verbally that that is what they will do?
Mr. Porcari. I believe that they are required in the
Federal Register.
Mr. Oberstar. Yes, they are, but they are not published;
they haven't been.
Mr. Porcari. If they are not published, we will make sure
that they are.
Mr. Oberstar. And once a year PHMSA publishes its final
action on special permit applications. Once a year. That is not
transparency, openness. That ought to be concurrent with their
action.
Mr. Porcari. Mr. Chairman, we are clearly living in a
different era, where it is a lot easier to be transparent. And
when we are reporting basically in real-time on contacts that
we are having in meetings, we can certainly have better than
annual reporting on our permitting process. Again, having it
web-based is one of the ways to do that.
Mr. Oberstar. Now, an issue consistently over 20-plus years
with this agency, the pipelines activity was grossly under-
funded in the mid-1980's. I authored language in Committee and
then on the House Floor in the appropriation process to
increase the number of inspector positions for the pipeline
inspection program, Federal and State, and increased funding
for them. That has deteriorated over time and fallen off.
Overall for the agency, first of all, how many inspectors does
the agency have now for all of its activities? And both Mr.
Scovel and Secretary Porcari, what are your recommendations for
staffing improvements and increases?
Mr. Scovel. Mr. Chairman, Deputy Secretary Porcari may have
more recent information than I do, but my audit team, in the
course of the last 14 months, determined that, at the time of
their addressing this question, there were 35 inspectors on
PHMSA's staff, as has previously been noted here on the record,
that are responsible for 300,000 or so entities transporting
and shipping and packaging hazmat.
Our staff, we have kicked around the question of how PHMSA
can gain better control of this inspection process. Certainly,
the number of inspectors is one key target. As you well know,
sir, FAA has wrestled with the same question in connection with
their inspection process. It is universally acknowledged there
can never be enough inspectors; however, with the proper risk-
based oversight system and with the proper staffing study, both
of which we think are now currently missing from PHMSA's
effort, they can better leverage what they have.
It is also worth noting, sir, that the other modes in the
Department, FMCSA, FAA, FRA, as well as various States, have
inspector resources. PHMSA must better integrate those
resources and leverage them together because they will never
have enough inspectors of their own. But it is a multi-phased
and a multi-pronged effort that PHMSA needs to undertake in
order to strengthen its inspections.
Mr. Oberstar. So intermodalism would be a benefit to the
entire inspection process. In the surface transportation
assistance bill that we have reported from Subcommittee, I
create a council on intermodalism and an under secretary for
intermodalism, and require a monthly meeting of the modal
administrators, among other responsibilities, to develop a
national strategic safety plan to integrate the competencies of
all the modes on safety; and, if we get this bill enacted, that
will be a requirement and will be on the top of the priority
list.
Meanwhile, you don't have to wait for that. Meanwhile, you
can bring those modal administrators together and ask them to
develop a common safety plan and how to harness the resources
of--it should be--it has been said many--one department, one
DOT, everyone pulling together. So intermodalism will be a way
to do that.
Mr. Porcari. Absolutely, Mr. Chairman. First, just on the
numbers, there are currently 35 inspectors and 7 field
supervisors, for a total of 42.
The point about leveraging other inspectors in the field is
a very important one that is an obvious way that we can work
intermodally, and part of our plan going forward is to do just
that, whether it is the Federal Aviation Administration, the
Federal Motor Carrier Safety Administration, or any other asset
in the Department. You can have a force multiplier by doing
that.
Finally, on intermodal safety as an organizing principle,
if I may, the perspective I am coming from is from a State DOT
that is the one truly intermodal State DOT. That was how it was
organized, and one of the early discussions with Secretary
LaHood when I came on board was safety as an organizing
principle at U.S. DOT. I do not want to steal the Secretary's
thunder, and I am aware of the provision in the bill that has
been marked up. But I will tell you that there are some very
important steps forward in the Department with safety as an
intermodal organizing principle that the Secretary has directed
and perhaps, most appropriately, he should describe, but we are
moving forward on that right now.
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Mr. Oberstar. That is very encouraging. I am delighted to
hear that. That is the first good news, structurally, about
this Department I have heard in a long time.
Just a little reminiscence. I was administrative assistant
for my predecessor, John Blatnik, who was chair of the
Executive and Legislative Reorganization Subcommittee of the
Committee on Government Operations at the time that President
Lyndon Johnson proposed establishing a Department of
Transportation. He made that recommendation in January of 1966
and sent his staff up to meet with us and with Senator
Magnuson's staff in the other body, and we spent from January
through October crafting the proposal to bring 34 agencies of
Government together under one roof in the Department of
Transportation. Hearings and markup in Subcommittee and passage
on the House Floor, conference with the Senate. In October,
President signed the bill. We thought they are all going to
work together. They haven't. It has been a disappointment.
With this legislation, the surface transportation bill, we
are going to make that legislative change and cause this
synergy to happen among all the modal administrations, and
starting with safety.
Mr. Porcari. Well, again, it is a very important point even
in the absence or preceding any legislation. There is an awful
lot that you can do as Secretary organizationally, and
Secretary LaHood is actually in the process of doing that right
now. There is much more intermodal work and cooperation
specifically on safety issues than we have had in the past, and
I think of it as low hanging fruit; it is something that is
relatively quick and easy to do and get some measurable
benefits from.
Mr. Oberstar. That is very important and good. I encourage
you and Secretary LaHood to continue pressing forward with
this. Also, we need to revisit the issue of special permits and
approvals and the follow-ups to those and this rather
incoherent process, two years and four years and unlimited time
frames.
Mr. Scovel, do you have some recommendations for how this
process of permitting can be rationalized?
Mr. Scovel. I do, Mr. Chairman. And if you will permit me
to offer recommendations for the Committee's consideration, as
well as the Department's, based on all of our audit work; it
goes beyond simply the permitting and approval process.
I just mentioned the improved application process.
Certainly, that is one that may well be low hanging fruit, in
Mr. Porcari's terms, for the Department to implement.
Number two, special permits for trade associations. The
Department, to its credit, has made clear that those will not
be issued to associations, they will be issued to individual
members. However, there is still the question of 5,000 members
of associations in the field perhaps believing that they can
continue to operate under special permits issued to their
associations. That needs to be addressed. There hasn't been the
level of fitness determination made company by company yet, and
safety demands it.
Fitness definition, a precise definition of what
constitutes an applicant's fitness to conduct the activity
authorized by the permit or approval.
Next, safety history.
Mr. Oberstar. On that point, isn't there a standard for
fitness in FAA?
Mr. Scovel. I believe there is, sir, but----
Mr. Oberstar. There are the three--fit, willing, and able--
and fitness is a very clear standard established both in law
and in practice in the FAA, and there should be some lessons
learned and applied to PHMSA.
Mr. Scovel. I agree, sir. In fact, within the PHMSA
context, the definition is not nearly as clear as it is applied
in other modes. As you know, the regulation permits PHMSA to
find that an applicant is fit based on prior compliance
history, information in the application itself, and other
information available to the associate administrator. Very
broad; too general; not helpful to applicants, as well as to
those who must administer the process.
That gets me, really, to my next point, and that is safety
history as a factor in determining fitness. PHMSA fought and
won this battle back in 1996. We determined, conducting our own
little history study, at the time this regulation was written,
PHMSA received industry conducts opposing the use of compliance
history to assess an applicant's fitness.
At the time, RSPA, PHMSA's predecessor, disagreed with
those comments and stated in the preamble to the final rule,
and I will quote: ``Enforcement actions may be indicative of an
applicant's ability or willingness to comply with the
applicable regulations. Because the associate administrator is
considering whether to authorize compliance with specific
alternatives to the HMR, the likelihood of an applicant's
compliance with those alternatives is relevant to public
safety.'' And the final rule did establish that an applicant's
compliance history should be or may be considered, and that is
the operative language here; it is not required, but it may be
considered by the administrator in determining fitness.
Mystifying, as well, to us is why PHMSA, in the years since
fighting and winning that battle, has ceded the ground to
industry, for whatever reasons that can't be known to us at
this point. But PHMSA has made clear that they do not consider
safety history as a relevant factor in determining fitness.
They confine their examination to the four corners of the
applicant itself: action, process, package. That is pretty much
all that they are looking at. That seems to us to fly in the
face of common sense and we strongly recommend that the
Department address that.
Mr. Oberstar. Should that be changed in law? Should law
itself define that more clearly, instead of leaving it to
regulation that can be changed and opposed and undermined from
time to time?
Mr. Scovel. That is a policy question, of course, sir, but
we would think that it is an important enough point to be
enshrined in law.
Mr. Oberstar. Thank you.
Mr. Scovel. A couple of other points, and then I will
yield.
Level of safety, as well, needs to be addressed for the
benefit of applicants, as well as administrators.
The agency should establish a coordination working group.
One of the points that we highlighted in our testimony today is
the lack of coordination between PHMSA and the other modes in
determining safety history, for one, enacting on applications.
Next, an enhanced risk-based approach to oversight. As our
testimony today, our statement made clear, PHMSA does not cite
as a priority factor in its oversight system whether a hazmat
carrier may be a holder of special permits or approvals. We
think that it is important enough to be included as a priority
factor in addition to what PHMSA already recognizes; accident
investigation, third-party complaint inquiries, and fitness
inspections.
Finally, longstanding safety concerns, Mr. Chairman; time
frames for resolving matters like bulk explosive vehicle
questions, lithium batteries, and, as Mr. Porcari has
mentioned, a process at the Department level to resolve such
intermodal disputes.
Thank you.
Mr. Oberstar. That is a very comprehensive list. Thank you
for that listing.
Mr. Secretary, do you want to respond to those points?
Mr. Porcari. Just very briefly, Mr. Chairman. I think those
are all very valid points. I would like to just underscore one
of them in particular, the relevance of safety history in the
fitness definition. We should--not may, but should--certainly
take that into account. I think that certainly is common sense
and directly relevant to the overall fitness of an applicant.
Mr. Oberstar. Thank you. Whatever you can do by regulatory
change you should do. You are clearly on track toward doing
that, and whatever else is necessary we will incorporate in
legislative language in our crafting of the next transportation
bill.
Inspector General Scovel, have you reviewed the
Department's program for the future, the proposals listed in
the Secretary's statement? This plan of action looks good on
its surface. It seems to me that there is very specific time
frames--within 10 working days, within 15 days, within 15 days,
within 30 days--actions to be taken. Looks to me like a good
checklist.
Mr. Scovel. It is, sir. Frankly, we were very impressed
that the Department's senior leadership acted as quickly as
they have in order to attempt to impose control from their
level over PHMSA's process for special permits and approval,
and that was really the subject matter of our own inquiry. As I
previously noted this morning, details remain to be filled in.
Although the action plan addresses special permits, very
little, if any, mention made of approvals, for instance, a
point that you made. And a continuing point for us, trade
association permits. A plan needs to be put in place. Industry
needs to be notified. The genie needs to be put back in the
bottle regarding all of those 5,000-plus permits.
Mr. Oberstar. And as a corollary to that point, shouldn't
there be some guidance, direction, understanding of a culture
of safety of having an arm's length relationship with those
whom the agency regulates?
Mr. Scovel. Yes. And that is a point that has been made
repeatedly in this hearing room mode to mode to mode. As we
look at it, Mr. Chairman, partnership is the term that is often
used between modal administrators and their staffs and the
industries that they regulate. In my view, partnership can
sometimes cross the line into the goal, instead of being a
means to the end of instituting as safe a program as we
possibly can. That should be, we think, a key part of any
safety culture re-education effort within PHMSA, as well as
other modes.
Mr. Oberstar. Mr. Secretary, apparently, you agree with
that?
Mr. Porcari. Mr. Chairman, you will find me agreeing that
it is important to have a correct relationship with industry,
and with all that implies. We certainly solicit input. We
should never, and will not, cede the essential safety function
and the regulatory role that serves that safety function.
Mr. Oberstar. This is the third in a series of failures
within the Department. Well, the Coast Guard is no longer in
the Department, but in my mind they still are. But there was
this indistinguishable link between the Coast Guard and its
contractor, Lockheed Martin, who were given authority to self-
approve their work. The second was the FAA and the customer
service index.
And the third now is PHMSA. Enough. We are drawing the
line, cleaning house, changing the culture, putting it on the
right track. We appreciate what you are doing and we will
continue to oversee. Safety is an ever-vigilant responsibility.
And for those who think that we have had the hearing, we had to
look at the agency, and we can now take a deep breath and they
will all go away, I am not going away and safety is not going
away.
I grew up in the family of an underground miner, where
lives depended on each other and on the equipment with which
they worked, and I will never forget my father's comment when I
asked--he was chairman of the safety committee for 26 years in
the Godfrey underground mine. I said, what sticks in your mind,
Dad? He said the most unforgettable sound in the underground is
the screams of the men when the cable on the cage broke and
there was nothing to stop their fall to their death. You never
relax your vigilance on safety.
Thank you very much for your testimony.
Mr. Porcari. Thank you, sir.
Mr. Oberstar. Our next witness is Mr. Lon Santis, Manager
of Technical Services for the Institute of Makers of
Explosives.
Mr. Santis, welcome to our Committee and to the hearing.
Your full statement will be included in the record. You may
summarize as you wish and proceed with your statement, which I
read in great detail.
TESTIMONY OF LON D. SANTIS, MANAGER, TECHNICAL SERVICES,
INSTITUTE OF MAKERS OF EXPLOSIVES, WASHINGTON, DC.
Mr. Santis. Thank you, Chairman Oberstar.
IME members are dependent on special permits, or SPs,
issued by PHMSA to transport bulk blasting agents and oxidizers
in multi-purpose bulk trucks, or MBTs, that are specially
designed for this purpose. The SPs apply unique and applicable
requirements which provide for the safest and most secure way
to deliver blasting materials to the job site.
To our knowledge, there has never been a fatality, injury,
or explosion attributed to the hazardous materials onboard
these vehicles in over 10 million trips. This is only through
the continual vigilance that the Chairman mentions and a
culture of safety that exists within the explosives industry.
Nonetheless, IME has cooperated over the years with PHMSA
on enhancements to the safety of this type of transportation,
the most recent effort starting in May of 2008. After
considerable study, we expect to adopt measures in our standard
for this activity, SLP-23, by the end of this year that address
the root causes of rollover accidents with these vehicles.
If SPs authorizing the use of MBTs are revoked or severely
restricted, the resulting damage to the U.S. economy could be
much worse than any single terrorist event. Industry does not
have the capacity to deliver the billions of pounds of
materials that are currently transported annually in MBTs by
other modes or packaging. Additionally, risk to the public
would increase because more sensitive products would replace
those shipped by SP and more vehicles would be on the highways.
Given the importance of MBTs to the national recovery and
infrastructure development, we urge the Committee to take a
reasoned and rational approach. This has not been entirely the
case with the recent OIG management advisory and PHMSA's
response. We object to the agency's use of sensational
descriptors, direct comparisons to terrorists' intentional
acts, and unfounded accusations of misbehavior.
For example, statements that MBTs are bombs on wheels,
catastrophes waiting to happen, and prone to rollover are out
of proportion to any rational risk-based analysis of the
operation of these vehicles. The public interest is not served
by an appeal to emotion when objective analysis rooted in
science is required.
In addition to the absence of any fatalities or injuries,
the public should know the following. The typical MBT has a
center of gravity height of 75 inches, which is lower than the
center of gravity height of the average loaded semi trailer. We
believe that the average rollover rate per mile for MBTs is
many times better than other vehicles with the same center of
gravity height and wheel width. These materials will not
accidentally explode from the forces encountered in the normal
course of transportation if the transportation is compliant
with the HMR.
In an MBT accident, the risk is not increased if the
materials mix, because sensitization only occurs within certain
ranges of mixtures and methods of mixing that will not occur in
an accident. There is very little probability that the bulk
materials may explode in a fire, and MBTs minimize the overall
risk to the public.
Even though several MBTs have burned to the ground without
incident, it is out of an abundance of caution that we
recommend that when explosives or oxidizers are involved in a
fire, that a standoff perimeter be established. These materials
must be exposed to a fire for a long period of time before
reaction can take place, in which time emergency responders can
evacuate people to safety. To help ensure proper response is
taken with explosives incidents, IME and PHMSA updated and
distributed a training program to every fire department in the
United States of America in 2003 on how to respond to these
incidents.
Several recommendations have been made that would impose
unreasonable and onerous requirements on MBTs and increase
risk. Perhaps the most serious of these is the suggestion to
prohibit the transportation of class 8 materials on MBTs. This
prohibition would jeopardize the latest advancement in MBT
safety, which involves sensitizing non-explosive materials
after they have been loaded into bore holes by the MBT. The
result would be more vehicles on the highway and more sensitive
explosive products being transported and used.
IME has shared recommendations with both the OIG and PHMSA
on how the SP program may be improved. The agency and Congress
should focus on these deficiencies, not attempting to raise
public fears and damage the reputation of the commercial
explosives industry. MBTs do not present an unreasonable risk
to health and safety or property, and the alternatives increase
risk.
I would be happy to answer any questions.
Mr. Oberstar. You raise concern about characterization of
the conveyance of explosive materials. I don't know to whom you
have reference saying that they are bombs on wheels, but I have
never, nor have my staff, characterized the movement of
explosives by the industry in that way.
And you may be very understandably sensitive to comparison
to the McVeigh situation you cite in your testimony. It is not
unreasonable for people who are not specialists in the field to
fear that movement of these individual materials separately
could result in an accident that produces this kind of tragedy.
That Murrow Building explosion certainly captured the public
attention and fear and concern.
But that is not the purpose of this hearing. We are not
here to ride herd on any individual company, but on the process
by which PHMSA conducts its business and its oversight and
establishes standards, and the issuance of special permits and
then the approval process. The law makes it very clear the
Secretary shall publish in the Federal Register a notice that
an application for special permit has been filed and give the
public an opportunity to inspect the safety analysis and
comment on the application. That is not consistently done by
PHMSA over all its years.
But there is no such requirement for an approval, and there
are vastly more approvals than there are special permits. In
what way would the industry be disadvantaged if those approvals
also were published in the Federal Register as a means of
public notification?
Mr. Santis. I am not sure the industry would be
disadvantaged. However, I am not sure there would be a lot to
gain by that. An approval is granted when a product meets
certain specified criteria. It is a black or white issue; it
either meets the standard, it passes the test that the United
Nations has set or it doesn't.
Therefore, it is quite different than a special permit, in
which the special permit is granted when someone wants to
engage in an activity that is slightly different than what the
regulations require. The approvals must be given based on what
the regulations require.
Mr. Oberstar. But you have no objection to approvals being
published in the Federal Register so that they are available to
the public?
Mr. Santis. My only concern would be an added
responsibility on an already stretched thin workforce.
Mr. Oberstar. That is their job. They can work more
efficiently. And we will provide them with additional
personnel. We will make sure there is funding and staffing to
carry this out. But the public interest should come first.
You also, in your testimony, state ``The Institute of
Makers of Explosives is taking steps to add measure in its
standards to address the major causes of rollovers.'' What are
those steps and what do you mean by adding measure? Explain
that statement.
Mr. Santis. We have had a standard for MBTs for a number of
years. When it was brought to our attention that PHMSA had
concerns over the numbers of rollover incidents, we did not
necessarily agree that the trucks are rollover prone and so
forth, and thus did not believe that there was an imminent, an
emergency situation. But, nonetheless, this industry is
committed to safety, and as you have mentioned, there is a
continuous vigilance on safety.
So, in order to address those rollovers--and no one wants
to have a single rollover--we looked at the causes of those
rollovers, and the two causes were primarily driver error and
tire issues. These trucks have to travel off-road on very
severe conditions, and the tires take much more abuse than a
normal vehicle, so it stands to reason that the tires would be
a little bit more of an issue.
So what we did was we pulled together not just the IME
members, and this is one of the first times we have done this,
we reached out to the entire regulated community and invited
them to the table to talk about how we could improve or lower
the probability that a rollover may occur. And we worked
through that process and had many meetings, developed a number
of recommendations relative to driver training, relative to the
quality of tires.
That is currently going through our subcommittee, will most
likely be reviewed by the Committee that is responsible for
this document in October. At that point it will go to our legal
affairs committee and then on to our board of governors for
final approval.
Mr. Oberstar. I am very much familiar with the stability
needed for MBTs; they operate in my district in the iron ore
mines; travel on the highway in order to get to the mining
location and then on location they have to go on very rugged
terrain, and they have to have very careful training of the
drivers and structural integrity of the vehicles so they don't
roll over on the mine site. And there has to be very careful
separation so that, should there be an accident, should these
separate materials that have very powerful explosive
capabilities, don't mix and accidentally explode.
In the case of mining explosives for both coal mining, iron
ore mining, and other hard rock mineral blasting, the most
serious thing that has occurred has been a terrible fire, a
fire that, in one case, burned for days. Extreme heat; melted
aluminum, melted steel. That is very serious.
So I understand what you are talking about. But I think
that the agency itself needs to be doing a better job, and the
question I would have is what is your view on conduct of safety
fitness review by PHMSA of agencies that apply for special
permits and approvals. Should they review the incident history?
Should they review, as the Inspector General said, the safety
history of the agency, its compliance history?
Mr. Santis. Well, I would say that it would stand to reason
that PHMSA would examine data generated by the Federal Motor
Carrier Safety Administration. My understanding is that that
agency is primarily responsible for evaluating the fitness of
motor carriers. They accumulate a lot of data and information,
and I can't see any reason why that information should not be
taken into account.
Mr. Oberstar. Very good. We will make sure that they do
that.
Has PHMSA told your members, separate from the show cause
letter, that their permits will be revoked? Have you heard any
comment from PHMSA that permits will be revoked?
Mr. Santis. Not specifically. I think everyone realizes
that a special permit is a privilege and that the specter of
revocation always exists and that they must maintain the
requirements to continue to hold that special permit. So they
certainly know what can happen.
Mr. Oberstar. I raise that point because it has come back
to me and to staff from various of your members that this
hearing and this review by the Inspector General is going to
result in revocations, and there is no such plan underway by
the Inspector General, nor is it the purpose of this hearing to
do that. But PHMSA does propose modifications to special
permits. Do you have any comments? Are you aware of their
proposals and do you have comments on them?
Mr. Santis. Yes. You are referring to the show cause
letters, I believe?
Mr. Oberstar. Yes.
Mr. Santis. Yes. There are, well, essentially, most of
these recommendations I think are based on the recommendations
that the Institute brought to PHMSA in March of this year, so
the things that we recommended and that are going to go into
SLP-23 that are in the show cause letter, we certainly support.
However, we do believe there are a couple of things in here
that are not justified on a cost benefit basis. We believe that
some technology that is discussed in here doesn't exist. We are
not aware, for example, of a fuel cutoff device for these types
of vehicles that will function at 45 degrees angle. We are just
not aware of it.
So there are some concerns and I think they have been
expressed to the agency, and hopefully this process will
continue on and we will come up with the meaningful and
important additions to these----
Mr. Oberstar. One of the proposals of PHMSA is driver
qualification and training, ``The special permit grantee must
annually audit its program for the qualification and training
of the persons who operate the vehicles authorized under these
special permits'' and lists three reasons or standards to be
observed in that qualification and training. Do you have any
objection to that?
Mr. Santis. No. No. We train our drivers way beyond what
the regulations require in our industry, and----
Mr. Oberstar. Are their records annually or periodically
reviewed, that is, apart from the commercial driver license
activity, their conduct in driving of their personal vehicle?
Mr. Santis. Yes.
Mr. Oberstar. If they are stopped for a DUI?
Mr. Santis. Yes. Yes, we support that. We support examining
a driver's off-duty record in consideration of their fitness to
drive an MBT, certainly.
Mr. Oberstar. That is a standard that is used in aviation
and that is important, and I am glad you are in conformity.
On vehicle inspections and tire standards, do you have any
objections to those items? You are familiar with them?
Mr. Santis. Only some minor concerns about the tires. I
know we have--we believe that a tire should not be in service
for more than six years. However, the show cause letter goes a
little bit further and says that a tire over six years old
should not be on the vehicle. Part of the concern there is that
people sometimes buy tires in large quantities and may not put
the tire on until several years, and it is stored in a climate
controlled condition so that it doesn't deteriorate. So we
believe in the six year service life.
Mr. Oberstar. Well, our purpose is not to modify or propose
modifications of this show cause order, but it is part of the
compliance spirit that I think is important both with PHMSA and
within the industry. Do you have any other comments that you
would like to make about questions I raised with Mr. Scovel or
the Deputy Secretary?
Mr. Santis. Only that we think that PHMSA must have the
information that they need to do their job, and, in my
experience, IME has always provided the information and PHMSA
has made the decision. Providing that information gives PHMSA
power. It especially gives PHMSA power at the United Nations.
And as you may be aware, we participate in the Committee of
Experts on the Transport of Dangerous Goods at the United
Nations. IME has an NGO status; DOT is the United States'
representative. At those meetings in Geneva, the IME and PHMSA
come together to represent the United States. We are on the
same team at the United Nations, and that requires a good deal
of good deal of close interaction, simply because PHMSA does
not have the personnel and the information on explosives that
the industry has because it is our life's work, and they must
regulate an entire cadre of hazardous materials and know a
little bit about a lot of things; whereas, we have people that
know pretty much everything about one thing.
Mr. Oberstar. That is an interesting observation. The U.S.
does this in many other--the International Maritime
Organization has both U.S. Government and industry
representatives, and the same with ICAO, the International
Civil Aviation Organization, there are industry and Government
personnel represented. So that is an interesting thought.
As we conclude--I have to be at another Committee activity
shortly--I want to just highlight your comment which was in
your written testimony and which you delivered in your oral
presentation: there has not been sufficient attention paid to
the absence of any fatalities or injuries from these accidents.
The absence of failure is not the presence, is not necessarily
the presence of safety.
That comment would be similar to saying that too much
attention was paid in 1984 and 1985 to the reports of near
midair events by the FAA when no fatalities resulted from
aircraft flying too close to each other in the airspace. We got
those reports. I was Chair of the Investigations Oversight
Subcommittee at the time and the industry said, oh, pooh pooh,
that doesn't mean that the airspace is unsafe.
And then two aircraft collided over Cerritos, California.
We had repeatedly raised this issue after we had repeatedly
said we need something like a traffic collision avoidance
systems and mode sea transponders onboard aircraft. And then
when fatality occurred, the agency responded that is a
graveyard tombstone mentality that must be banished from the
safety arena. And it doesn't help to say these are incidents;
these are accidents. These are situations that can and do
result in fatalities.
So these sorts of conditions are precursor to impending
failure.
Mr. Santis. That is right. We have a word for that in our
industry; we call them near misses or lessons learned. And we
pay an enormous amount of attention anytime something happens
that could lead to a more serious event, and I believe that is
how this industry has been able to improve itself to the point
where--well, let me go back 100 years, when----
Mr. Oberstar. Black powder and dynamite.
Mr. Santis. Black powder, dynamite. Hundreds of people
being killed annually in events. Today, we can count annual
fatalities on one hand, and sometimes don't even need any
fingers in a year; and that is through the continual vigilance
that you talk about. It is through looking at lessons learned.
For example, the rollovers. There were no explosions, fires
from the rollovers.
But that is not acceptable to us. The rollover indicates
that there could be something happen; therefore, we need to
address the rollover. Any time there is something that happens
in our workplace that is the near miss, the close call,
whatever word you use, we pay enormous amount of attention to
it and treat it almost as if it was the catastrophe, because we
know it could have been; and then we look at it and say what
could we do to prevent that near miss from happening. We are
ahead of the disaster that way.
Mr. Oberstar. I thank you for those comments and hope that
you take this hearing as a call to continued vigilance, and
that the agency straightens out, they adopt a compliance
attitude and an oversight responsibility. We will continue to
review and monitor the actions of the agency and the industry's
compliance therewith.
Thank you very much for your testimony.
Mr. Santis. Thank you.
Mr. Oberstar. The hearing is adjourned.
[Whereupon, at 1:22 p.m., the Committee was adjourned.]
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