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(2) Section 6(f) (3) (B) of the Department of Transportation Act (49 U.S.C. 1655 (f) (3) (B)) is amended by striking out the period at the end thereof and by inserting in lieu thereof “(other than subsection (e) (4)).”.

(f) Subsection (6) of section 4472 of the Revised Statutes, as amended (46 U.S.C. 170(6)), is amended

(1) in paragraph (a) thereof, by striking out "inflammable" each place it appears and inserting in lieu thereof at each such place "flammable"; by inserting before "liquids" the following: "or combustible"; and by deleting the colon and the proviso in its entirely and by inserting in lieu thereof a period and the following two new sentences: "The provisions of this subsection shall apply to the transportation, carriage, conveyance, storage, stowing, or use on board any passenger vessel of any barrel, drum, or other package containing any flammable or combustible liquid which has a lower flash point than that which is defined as safe pursuant to regulations establishing the defining flash-point criteria for flammable and combustible liquids. Such regulations shall be prescribed, and revised as necessary, by the Secretary of Transportation.”.

(2) in paragraph (b) thereof, by striking out in clause (iv) thereof "inflammable liquids" and inserting in lieu thereof "flammable or combustible liquids".

(g) The Hazardous Materials Transportation Control Act of 1970 (Pub. L. 91-458, title III ; 49 U.S.C. 1761-1762) is repealed.

EFFECTIVE DATE

SEC. 114. (a) Except as provided in this section, the provisions of this title shall take effect on the date of enactment.

(b) (1) Except as provided in section 108 of this title or paragraph (2) of this subsection, any order, determination, rule, regulation, permit, contract, certificate, license, or privilege issued, granted, or otherwise authorized or allowed, prior to the date of enactment of this title, pursuant to any provision of law amended or repealed by this title, shall continue in effect according to its terms or until repealed, terminated, withdrawn, amended, or modified by the Secretary or a court of competent jurisdiction.

(2) The Secretary shall take all steps necessary to bring orders, determinations, rules, and regulations into conformity with the purposes and provisions of this title as soon as practicable, but in any event no permits, contracts, certificates, Licenses, or privileges granted prior to the date of enactment of this title, or renewed or extended thereafter, shall be of any effect more than 2 years after the date of enactment of this title, unless there is full compliance with the purposes and provisions of this Act and regulations thereunder.

(c) Proceedings pending upon the date of enactment of this title shall not be affected by the provisions of this title and shall be completed as if this title had not been enacted, unless the Secretary makes a determination that the public health and safety otherwise require.

Mr. RANDALL. Our first witness this morning is the president of the Air Line Pilots Association, Captain John J. O'Donnell, who has been good enough to fully comply with the rules of the committee and has

a statement.

You have someone there with you, would you please identify them?

STATEMENT OF CAPT. JOHN J. O'DONNELL, PRESIDENT, AIR LINE PILOTS ASSOCIATION; ACCOMPANIED BY CAPT. JAMES A. ECHOLS, CHAIRMAN, HAZARDOUS MATERIALS COMMITTEE; AND DANIEL KATZ, STAFF ATTORNEY

Captain O'DONNELL. Yes, sir. Mr. Chairman, my name is John J. O'Donnell, I am president of the Air Line Pilots Association, national.

On my right is Capt. James A. Echols, chairman of the Air Line Pilots Association's Hazardous Materials Committee; and on my left

is Daniel Katz, who is an ALPA staff attorney who has been handling the hazardous materials problem for us.

Our association represents the professional and safety interests of more than 37,000 airline pilots in the employ of 35 domestic and international air carriers. We are pleased to accept your invitation to testify on a subject of vital concern to the association's membership and to this Nation's traveling public: The transportation of hazardous cargo aboard commercial airliners.

THE PROBLEM OF HAZARDOUS CARGO IN AIR TRANSPORTATION

Since 1931 our association has taken an active part, along with countless industry and Government officials, in striving to achieve the highest possible degree of safety in commercial aviation. Our efforts. over the years have not been spent fruitlessly. The American public can be proud that today it has the safest and most reliable air transportation system in the world.

As our country's air transportation system has developed, however, a complex and intractable problem occasionally challenges our best efforts to provide the highest level of safety American travelers and shippers have rightfully come to expect. One such problem has arisen due to the rapidly increasing use of commercial airlines to transport commodities the Department of Transportation classifies as inherently threatening to flight safety.

We appreciate the sensitivity shown toward this problem in recent years by the Members of Congress, and this subcommittee in particular. These congressional hearings have revealed the nature and scope of the improvements needed in this area, and, in our numerous appearances in the last 4 years before Senate and House panels, we have consistently been encouraged by the bipartisan support displayed for a stronger Federal action program to supervise the shipment of dangerous cargo. These congressional investigations have confirmed ALPA's own findings that as recently as last year:

(1) Most hazardous materials shipped were carried in violation of Federal safety regulations and normally expected commonsense judgment.

(2) Shippers, freight forwarders and carriers routinely ignored or misinterpreted the law and did not even have a copy of the applicable regulations available where there were needed.

(3) The regulations themselves were outmoded, confusing, and allowed the carriage of materials which do not belong on passenger and cargo aircraft.

(4) Inadequate firefighting equipment on airliners and the inaccessibility of hazardous cargo made many potential in-flight emergencies impossible to deal with.

(5) The entire regulatory scheme was threatened by the pervasive issuance of exemptions from the regulations, without any notice to the public or opportunity to protest unsafe operations.

(6) The overlapping jurisdiction of Government agencies hampered effective regulation.

(7) The Federal Aviation Administration's inspection program in the field was virtually nonexistent.

(8) FAA's laxity in enforcement left hazardous materials violators totally undeterred.

As I mentioned, it is not just ALPA's opinion that these serious deficiencies have plagued our national air transportation system. The association's investigations may have led to the disclosure of some of these administrative abuses. Our records certainly confirm them. But the indictments are on the official record in congressional hearings and reports, proven entirely from the testimony of the responsible Federal aviation safety officials themselves.

THE HAZARDOUS MATERIALS TRANSPORTATION ACT

By enacting the Hazardous Materials Transportation Act on January 3 of this year, Congress gave the Department of Transportation and the FAA full legal authority to revise their regulations as needed, and to mount the inspection, education, and enforcement drive urgently required to deal with the problem. However, we believe the potential of this legislation remains unrealized. Let me explain why. The available evidence shows no sudden change in the practices or attitudes of those responsible for following the safety rules. As recently as June 19, 1975, a Department of Transportation Assistant Secretary bemoaned the continued poor compliance record of hazardous materials shippers in a speech in San Francisco. General Benjamin O. Davis, Jr., said the Department had found “*** about 75 percent of all shipments checked in air terminals and elsewhere were in violation * * *"9

Similarly, a full year before that, Under Secretary of Transportation John W. Barnum testified before the Senate Commerce Committee that

whether it is done in terms of number of shippers or in terms of numbers of inspections of manufacturers, the percentage of shippers or manufacturers in compliance runs in the 20 to 25 percent range.

Our impression is that these Government estimates somewhat overstate the degree of compliance with the regulations but it is also our feeling that the degree of compliance has not substantially improved this year.

The statistics on compliance are significant. The whole regulatory scheme is based on the theory that otherwise dangerous commodities are safe for shipment if they are properly packaged, marked, stowed, and the like. If they are not, as is too often the case, then we have an accident of potentially catastrophic proportions just waiting to happen.

It would have been surprising if the compliance records of hazardous materials shippers actually had improved dramatically this year. A new piece of legislation is on the books, but the same enforcement agency-the FAA-is still primarily responsible for detecting and prosecuting hazardous materials violations in the aviation field.

The fragmentation of regulatory authority over the transportation of hazardous materials has long been recognized as a roadblock to effective governmental supervision. A major aim of the Hazardous Materials Transportation Act was a unified, consolidated hazardous materials program operated directly out of the Office of the Secretary of Transportation.

The historically uncoordinated efforts of the model administrations are still with us, however, apparently because of a lack of manpower within the DOT. In fact, after the passage of the latest legislation, the Secretary took less than a month to redelegate his newly acquired hazardous materials functions back to the FÄA.

The Hazardous Materials Transportation Act also promised to open the exemption process for public scrutiny and participation. However, the Government to this day refuses to publish notices of exemption applications in the Federal Register as expressly required by section 107 of the statute.

It was only after a Federal court injunction against this abuse that a revised exemption procedure allowing this public safeguard was even proposed. In the meantime, however, the Department of Transportation and the FAA processed hundreds of exemptions from the hazardous materials safety rules, with no notice to the public and no opportunity for public comment, totally in violation of the law.

For the public, it is unfortunate, indeed, that these agencies are so responsive to the large commercial enterprises they are required by law to regulate.

This overresponsiveness is also apparent in the exemption procedure proposed to become effective next month. The proposed regulations permit the emergency processing of exemption applications without public notice and comment merely on the basis of a telephone call from a shipper who claims that he will suffer serious economic loss if he has to wait the usual period of time for relief.

True emergency exemption applications are entitled to priority treatment. However, this should occur only when the delay in processing exemption applications threatens an imminent risk of substantial injury to human health, welfare, or life itself, which is not outweighed by the public's right to know of and participate in the exemption proceedings.

There are more instances of the FAA's overidentification with the perceived interests of profitmaking institutions at the expense of airline workers and passengers. On February 4, 1975, former Administrator Alexander P. Butterfield issued a rule requiring airlines to monitor radioactive shipments with Geiger counters beginning on June 30, 1975. Despite this 5-months leadtime, at the last minute Acting Administrator James E. Dow gave the airlines another 6 months to buy the necessary equipment. There was no public notice that the FAA was considering a postponement, nor even that one had been requested.

Similarly unsympathetic to the public was FAA's response to section 108 of the Hazardous Materials Transportation Act. This provision was designed to remove radioactive materials from passenger airliners. FAA formulated the final rule, which so enlarged a congressionally approved exception for medical and research materials that the exception ultimately swallowed the entire rule.

Finally, there is the so-called task force set up as a response by Federal aviation officials to ALPA's safe transportation of people program. Attached as appendix "A" to the report of the task force is the association's 11-point program for improving the safety of shipping hazardous materials by air. All of the requested legislative action was enacted last January, but the bulk of the hard administrative response has yet to come. As is typically the fate of such governmental study units, there is more study of a problem than meaningful action.

62-325-75-2

Thus, the task force reviewed the list of presently allowable items and found many classes of toxic chemicals and other dangerous substances that should not be carried on passenger and cargo aircraft.

RECOMMENDATIONS

The task force recommends that serious consideration be given to prohibiting carriage in air commerce of those hazardous materials listed and defined and described in subparagraphs I and II, which follow:

I. HAZARDOUS MATERIALS THAT SHOULD NOT BE CARRIED ABOARD PASSENGERCARRYING AND CARGO-ONLY AIRCRAFT

1. Explosives.--Class A and Class B as defined in 49 CFR 173.88 respectively. 2. Explosives.-Class C as defined in 49 CFR 173.100, except small arms ammunition and materials specifically approved by the Department.

3. Spontaneously Combustible Materials.-Defined as materials that are liable to undergo spontaneous heating from reaction with air sufficient for ignition. Such materials should be designated by the Department.

4. Pyroforic Materials.-Defined as materials that will ignite spontaneously in air at a temperature of 130°F. or below.

5. Strong Oxidizers.-Defined as materials, other than explosives as defined in 49 CFR 173.50, that, when mixed with dry red oak sawdust, ignite spontaneously at a temperature of 103°F. or below or when ignited by an external source burn at a rate greater than 100 inches per minute when tested by a method supplied by the Department.

6. Organic Peroxides.-Defined as organic compounds that contain a bivalent0-0 structure and may be considered to be derivatives of hydrogen peroxide with one or more hydrogen atoms replaced with organic radicals.

7. Self Reactive and Thermally Unstable Materials.-Defined as materials that may undergo self reaction, without the addition of air or other substances, resulting in a violent and destructive exothermic chemical reaction. These materials should be designated by the Department.

8. Water Reactive Materials.-Defined as materials that react with water to produce flammable and/or poisonous gases.

9. Corrosive Materials.-Defined as materials which have corrosive rates exceeding 0.250 inches per year on aluminum at a temperature of 130°F.

10. Extremely or Highly Toxic Gases or Liquids (by inhalation).-Limited to gases, or liquids with a boiling point less than 130°F., having an LC50 value (for rats experiencing a one-hour continuous exposure) equal to or less than 200 parts per million in air for gases or vapors, or equal to or less than 2 milligrams per liter in air for mists.

II. ADDITIONAL HAZARDOUS MATERIALS THAT SHOULD NOT BE CARRIED ABOARD PASSENGER AIRCRAFT

1. Flammable Gases.-As defined in 49 CFR 173.300 (b) except those covered by Section 173.306.

2. Flammable Liquids.-Having flash points of 20°F. or less and boiling points less than 100°F.

3. Irritant Gases or Liquids.-Defined as gases, and liquids having boiling points of 130°F. or less that will give off vapors capable of causing reversible local irritant effects on eyes, nose, or throat, temporarily impairing a person's ability to function to the degree that he cannot take necessary emergency action in the event of leakage of the material from its container.

We have yet to see a proposed amendment to the regulations addressing this problem, however; and in the interim the Government's position is that the airlines must carry all allowable freight.

We believe that the Department of Transportation and FAA officials can and will deal with the difficult hazardous cargo problems facing our Nation today. The Association urges these agencies to implement the remainder of our 11-point program without delay.

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