[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

                               __________


                       Printed for the use of the
             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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    [GRAPHIC] [TIFF OMITTED] T2158.026
    
    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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    [GRAPHIC] [TIFF OMITTED] T2158.027
    
    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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