[Congressional Record Volume 151, Number 43 (Wednesday, April 13, 2005)]
[Senate]
[Pages S3560-S3562]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORZINE:
  S. 773. A bill to ensure the safe and secure transportation by rail 
of extremely hazardous materials; to the Committee on Commerce, 
Science, and Transportation.
  Mr. CORZINE. Mr. President, today I am introducing legislation, the 
Extremely Hazardous Materials Rail Transportation Act of 2005, to 
ensure the safety and security of toxic chemicals that are transported 
across our nation's 170,000 mile rail network.
  On January 6, 2005, a freight car carrying toxic chlorine gas 
derailed in South Carolina. The derailment caused a rupture that 
released a deadly gas cloud over the nearby community of Graniteville. 
As a result of this accident, nine people died and 318 needed medical 
attention. Many of those needing medical attention were first 
responders who arrived at the scene of the accident unaware that a tank 
car containing chlorine gas had ruptured. As one responder described 
it, ``I took a breath. That stuff grabbed me. It gagged me and brought 
me down to my knees. I talked to God and said, `I am not dying here.''' 
In the aftermath of the chlorine release, more than 5,000 area 
residents needed to be evacuated from their homes.
  The Graniteville accident was the deadliest accident involving the 
transport of chlorine. But it was not the first. Since the use of rail 
for chlorine transport began in 1924, there had been four fatal 
accidents involving the release of chlorine, according to the Chlorine 
Institute. Thirteen people have died. In addition, the National 
Transportation Safety Board has investigated 14 derailments from 1995 
to 2004 that caused the release of hazardous chemicals, including 
chlorine. In those instances, four people died and 5,517 were injured.
  The Graniteville accident exposes fundamental failings in the 
transport of hazardous materials on America's rail system. These 
failings include pressurized rail tank cars that are vulnerable to 
rupture; lack of sufficient training for transporters and emergency 
responders; lack of sufficient notification to the communities that 
hazardous material train run through and a lack of coordination at the 
federal level between the many agencies that are involved in rail 
transport of hazardous materials.
  Because of these failings, our Nation's freight rail infrastructure 
remains vulnerable to the release of hazardous materials either by 
accident or due to deliberate attack. The ``Extremely Hazardous 
Material Rail Transportation Act addresses these

[[Page S3561]]

safety and security issues. My legislation would require the DHS to 
coordinate Federal, State and local efforts to prevent terrorist acts 
and to respond to emergencies in the transport by rail of extremely 
hazardous materials. It requires the DHS to issue regulations that 
address the integrity of pressurized tank cars, the lack of sufficient 
training for transporters and emergency responders, and the lack of 
sufficient notification for communities. It would also require the DHS 
to study the possibility of reducing, through the use of alternate 
routes, the risks of freight transportation of extremely hazardous 
material; except in the case of emergencies or where such alternatives 
do not exist or are prohibitively expensive. Finally, it contains 
protections for employees who report on the safety and security of 
transportation by rail of extremely hazardous materials.
  I hope my colleagues will support this legislation, and I ask 
unanimous consent that the text of the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 773

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Extremely Hazardous 
     Materials Rail Transportation Act of 2005''.

     SEC. 2. COORDINATION OF PRECAUTIONS AND RESPONSE EFFORTS 
                   RELATED TO THE TRANSPORTATION BY RAIL OF 
                   EXTREMELY HAZARDOUS MATERIALS.

       (a) Regulations.--
       (1) Requirement for regulations.--Not later than 180 days 
     after the date of the enactment of this Act, the Secretary of 
     Homeland Security shall, in consultation with the Secretary 
     of Transportation and the heads of other Federal, State, and 
     local agencies, prescribe regulations for the coordination of 
     efforts of Federal, State, and local agencies aimed at 
     preventing terrorist acts and responding to emergencies that 
     may occur in connection with the transportation by rail of 
     extremely hazardous materials.
       (2) Content.--
       (A) In general.--The regulations required under paragraph 
     (1) shall--
       (i) require, and establish standards for, the training of 
     individuals described in subparagraph (B) on safety 
     precautions and best practices for responding to emergencies 
     occurring in connection with the transportation by rail of 
     extremely hazardous materials, including incidents involving 
     acts of terrorism; and
       (ii) establish a coordinated system for notifying 
     appropriate Federal, State, and local law enforcement 
     authorities (including, if applicable, transit, railroad, or 
     port authority police agencies) and first responders of the 
     transportation by rail of extremely hazardous materials 
     through communities designated as area of concern communities 
     by the Secretary of Homeland Security under subsection 
     (b)(1).
       (B) Individuals covered by training.--The individuals 
     described in subparagraph (A)(i) are first responders, law 
     enforcement personnel, and individuals who transport, load, 
     unload, or are otherwise involved in the transportation by 
     rail of extremely hazardous materials or who are responsible 
     for the repair of related equipment and facilities in the 
     event of an emergency, including an incident involving 
     terrorism.
       (b) Area of Concern Communities.--
       (1) Designation of area of concern communities.--
       (A) In general.--In prescribing regulations under 
     subsection (a), the Secretary of Homeland Security shall 
     compile a list of area of concern communities.
       (B) Criteria.--The Secretary of Homeland Security shall 
     include on such list communities through or near which the 
     transportation by rail of extremely hazardous materials poses 
     a serious risk to the public health and safety. In making 
     such determination, the Secretary shall consider--
       (i) the severity of harm that could be caused in a 
     community by the release of the transported extremely 
     hazardous materials;
       (ii) the proximity of a community to major population 
     centers;
       (iii) the threat posed by such transportation to national 
     security, including the safety and security of Federal and 
     State government offices;
       (iv) the vulnerability of a community to acts of terrorism;
       (v) the threat posed by such transportation to critical 
     infrastructure;
       (vi) the threshold quantities of particular extremely 
     hazardous materials that pose a serious threat to the public 
     health and safety; and
       (vii) such other safety or security factors that the 
     Secretary determines appropriate to consider.
       (2) Consideration of alternate routes.--The Secretary of 
     Homeland Security shall conduct a study to consider the 
     possibility of reducing, through the use of alternate routes 
     involving lower security risks, the security risks posed by 
     the transportation by rail of extremely hazardous materials 
     through or near communities designated as area of concern 
     communities under paragraph (1), except in the case of 
     emergencies or where such alternatives do not exist or are 
     prohibitively expensive.

     SEC. 3. PRESSURIZED RAILROAD CARS.

       (a) New Safety Standards.--
       (1) Requirement for standards.--Not later than 180 days 
     after the date of the enactment of this Act, the Secretary of 
     Homeland Security shall, in consultation with the Secretary 
     of Transportation and the heads of other relevant Federal 
     agencies, prescribe by regulations standards for ensuring the 
     safety and physical integrity of pressurized tank cars that 
     are used in the transportation by rail of extremely hazardous 
     materials.
       (2) Consideration of specific risks.--In prescribing 
     regulations under paragraph (1), the Secretary of Homeland 
     Security shall consider the risks posed to such pressurized 
     tank cars by acts of terrorism, accidents, severe impacts, 
     and other actions potentially threatening to the structural 
     integrity of the cars or to the safe containment of the 
     materials carried by such cars.
       (b) Report on Impact Resistance.--
       (1) In general.--Not later than 180 days after the date of 
     the enactment of this Act, the Secretary of Homeland Security 
     shall, in consultation with the Secretary of Transportation 
     and the heads of other relevant Federal agencies, submit to 
     the appropriate congressional committees a report on the 
     safety and physical integrity of pressurized tank cars that 
     are used in the transportation by rail of extremely hazardous 
     materials, including with respect to the risks considered 
     under subsection (a)(2).
       (2) Content.--The report required under paragraph (1) shall 
     include--
       (A) the results of a study on the impact resistance of such 
     pressurized tank cars, including a comparison of the relative 
     impact resistance of tank cars manufactured before and after 
     the implementation by the Administrator of the Federal 
     Railroad Administration in 1989 of Federal standards on the 
     impact resistance of such tank cars; and
       (B) an assessment of whether tank cars manufactured before 
     the implementation of the 1989 impact resistence standards 
     and tank cars manufactured after the implementation of such 
     standards conform with the standards prescribed under 
     subsection (a).

     SEC. 4. REPORT ON EXTREMELY HAZARDOUS MATERIALS TRANSPORT 
                   SAFETY.

       (a) Requirement for Report.--Not later than 180 days after 
     the date of the enactment of this Act, the Secretary of 
     Homeland Security shall, in consultation with the Secretary 
     of Transportation, submit to the appropriate congressional 
     committees a report on the safety and security of the 
     transportation by rail of extremely hazardous materials, 
     including the threat posed to the security of such 
     transportation by acts of terrorism.
       (b) Content.--The report required under subsection (a) 
     shall include, in a form that does not compromise national 
     security--
       (1) information specifying--
       (A) the Federal and State agencies that are responsible for 
     the oversight of the transportation by rail of extremely 
     hazardous materials; and
       (B) the particular authorities and responsibilities of the 
     heads of each such agency;
       (2) an assessment of the operational risks associated with 
     the transportation by rail of extremely hazardous materials, 
     with consideration given to the safety and security of the 
     railroad infrastructure in the United States, including 
     railroad bridges and rail switching areas;
       (3) an assessment of the vulnerability of railroad cars to 
     acts of terrorism while being used to transport extremely 
     hazardous materials;
       (4) an assessment of the ability of individuals who 
     transport, load, unload, or are otherwise involved in the 
     transportation by rail of extremely hazardous materials or 
     who are responsible for the repair of related equipment and 
     facilities in the event of an emergency, including an 
     incident involving terrorism, to respond to an incident 
     involving terrorism, including an assessment of whether such 
     individuals are adequately trained or prepared to respond to 
     such incidents;
       (5) a description of the study conducted under section 
     2(b)(2), including the conclusions reached by the Secretary 
     of Homeland Security as a result of such study and any 
     recommendations of the Secretary for reducing, through the 
     use of alternate routes involving lower security risks, the 
     security risks posed by the transportation by rail of 
     extremely hazardous materials through or near area of concern 
     communities;
       (6) other recommendations for improving the safety and 
     security of the transportation by rail of extremely hazardous 
     materials; and
       (7) an analysis of the anticipated economic impact and 
     effect on interstate commerce of the regulations prescribed 
     under this Act.
       (c) Form.--The report required under subsection (a) shall 
     be in unclassified form, but may contain a classified annex.

     SEC. 5. WHISTLEBLOWER PROTECTION.

       (a) In General.--No person involved in the transportation 
     by rail of extremely hazardous materials may be discharged, 
     demoted, suspended, threatened, harassed, or in any other 
     manner discriminated against because of any lawful act done 
     by the person--

[[Page S3562]]

       (1) to provide information, cause information to be 
     provided, or otherwise assist in an investigation regarding 
     any conduct which the person reasonably believes constitutes 
     a violation of any law, rule, or regulation related to the 
     security of shipments of extremely hazardous materials, or 
     any other threat to the security of shipments of extremely 
     hazardous materials, when the information or assistance is 
     provided to or the investigation is conducted by--
       (A) a Federal regulatory or law enforcement agency;
       (B) any Member of Congress or any committee of Congress; or
       (C) a person with supervisory authority over the person (or 
     such other person who has the authority to investigate, 
     discover, or terminate misconduct);
       (2) to file, cause to be filed, testify, participate in, or 
     otherwise assist in a proceeding or action filed or about to 
     be filed relating to a violation of any law, rule, or 
     regulation related to the security of shipments of extremely 
     hazardous materials or any other threat to the security of 
     shipments of extremely hazardous materials; or
       (3) to refuse to violate or assist in the violation of any 
     law, rule, or regulation related to the security of shipments 
     of extremely hazardous materials.
       (b) Enforcement Action.--
       (1) In general.--A person who alleges discharge or other 
     discrimination by any person in violation of subsection (a) 
     may seek relief under subsection (c)--
       (A) by filing a complaint with the Secretary of Labor; and
       (B) if the Secretary has not issued a final decision within 
     180 days after the filing of the complaint and there is no 
     showing that such delay is due to the bad faith of the 
     claimant, by commencing a civil action in the appropriate 
     district court of the United States, which shall have 
     jurisdiction over such an action without regard to the amount 
     in controversy.
       (2) Procedure.--
       (A) Complaint to department of labor.--An action under 
     paragraph (1)(A) shall be governed under the rules and 
     procedures set forth in subsection (b) of section 42121 of 
     title 49, United States Code, except that notification made 
     under such subsection shall be made to the person named in 
     the complaint and to the person's employer.
       (B) Court action.--An action commenced under paragraph 
     (1)(B) shall be governed by the legal burdens of proof set 
     forth in section 42121(b)(2)(B) of title 49, United States 
     Code.
       (C) Statute of limitations.--An action under paragraph (1) 
     shall be commenced not later than 180 days after the date on 
     which the violation occurs.
       (c) Remedies.--
       (1) In general.--A person prevailing in any action under 
     subsection (b)(1) shall be entitled to all relief necessary 
     to make the person whole.
       (2) Compensatory damages.--Relief for any action under 
     paragraph (1) shall include--
       (A) in the case of a termination of, or other 
     discriminatory act regarding the person's employment--
       (i) reinstatement with the same seniority status that the 
     person would have had, but for the discrimination; and
       (ii) payment of the amount of any back pay, with interest, 
     computed retroactively to the date of the discriminatory act; 
     and
       (B) compensation for any special damages sustained as a 
     result of the discrimination, including litigation costs, 
     expert witness fees, and reasonable attorney fees.
       (d) Rights Retained by Person.--Nothing in this section 
     shall be deemed to diminish the rights, privileges, or 
     remedies of any person under any Federal or State law, or 
     under any collective bargaining agreement.

     SEC. 6. CIVIL PENALTIES.

       Not later than 180 days after the date of the enactment of 
     this Act, the Secretary of Homeland Security shall prescribe 
     regulations providing for the imposition of civil penalties 
     for violations of--
       (1) regulations prescribed under this Act; and
       (2) the prohibition against discriminatory treatment under 
     section 5(a).

     SEC. 7. NO FEDERAL PREEMPTION.

       Nothing in this Act shall be construed as preempting any 
     State law, except that no such law may relieve any person of 
     a requirement otherwise applicable under this Act.

     SEC. 8. DEFINITIONS.

       In this Act:
       (1) Extremely hazardous material.--The term ``extremely 
     hazardous material'' means--
       (A) a material that is toxic by inhalation;
       (B) a material that is extremely flammable;
       (C) a material that is highly explosive;
       (D) high-level radioactive waste; and
       (E) any other material designated by the Secretary of 
     Homeland Security as being extremely hazardous.
       (2) Appropriate congressional committees.--The term 
     ``appropriate congressional committees'' means--
       (A) the Committee on Homeland Security and Governmental 
     Affairs and the Committee on Commerce, Science, and 
     Transportation of the Senate; and
       (B) the Committee on Homeland Security and the Committee on 
     Transportation and Infrastructure of the House of 
     Representatives.
                                 ______