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Captain O'DONNELL. It is the Department of Transportation; they have delegated it to the FAA.

Mr. KATZ. Mr. Chairman, if I may add to Captain O'Donnell's


Mr. RANDALL. Yes, Mr. Katz.

Mr. KATZ. In addition to the aviation mode of transportation, there are other modal administrations within the Department.

Mr. RANDALL. That is what you mean, then.

Mr. KATZ. There is an overlap, sometimes, among these various modal administrations, as well as the conflict or overlap between the Department of Transportation and its various subdivisions and the modal administrations themselves. So there are a variety of governmental departments, divisions, and agencies still in the picture.

Mr. RANDALL. Well, then, you have shed some light on this situation. You are saying that if a shipment of hazardous materials is going by rail, it is probably regulated by the ICC or another modal agency. If it is going by water, or by truck, or by some other way, there are other agencies involved.

Captain O'DONNELL. What happens when it goes by all four, and starts out in California off a ship

Captain ECHOLS. We had a long-standing debate as to as an example of one of the simpler points to bring out in this-who has jurisdiction over an airline freight dock?

After several years, I have said it before and I am firmly convinced that is the best place in the world to commit murder, because I don't think anybody owns the freight dock or has jurisdiction over it.

If a package is clearly sitting on a freight dock destined for flight such-and-such to Boston, there is a hard determination made there to get somebody to come in.

The FAA says, if it is not on an airplane, we do not have jurisdiction. The Bureau of Motor Carriers says, if it is not on a truck, we don't have jurisdiction.

And this is where you get into the problem. In the meantime, the illegal package sits there; and come 2 o'clock in the morning, it gets on an airplane and goes somewhere.

Mr. RANDALL. Ms. Abzug.

Ms. ABZUG. What do you propose we do with respect to the emergency situations?

What regulations or legislation or administrative actions do you think should be taken with respect to them?

Captain O'DONNELL. We think the committee or the FAA should go back to the original sense of the Congress when they passed that law, that emergency exemptions should be just that. Emergency exemptions should have to deal with health, and life, and public welfare.

We recognize that a lot of radioactive materials are used which climb into this emergency status because of their short shelf life. They have only 24 to 72 hours of shelf life.

Therefore, the only way to get that life-saving situation is to fly it. We have agreed with the nuclear industry that we would fly that for medical and life-saving purposes. We would also fly that short shelf life material for research, medical research, but not as the FAA has opened up the research interpretation where anything for research can be flown. We will not accept that.

Ms. ABZUG. I have some difficulty with that. I think part of the testimony here has been, and I have read other testimony in the past that seems to indicate, that, if the container is of the nature that it is to date, it is not capable of withstanding the impact of an aircraft. accident without rupturing. That is an enormous impact upon the environment-the development of plutonium into an atmosphere that can create real death.

I think we have had some examples of that in a couple of accidents that have taken place: two in Greenland, and I think in an accident over Spain. I am a little unclear as to how we would deal with that. My own opinion is that there has to be a much more rigid control of this exception. By granting an exception for medical and research materials, I think it is very easily a basis for granting an exception for various kinds of industrial research, and so on. This raises the same question.

I don't think we have really dealt with that, and there is this exception that the amendment does leave out. So I think that is a subject we have to get into again here, and we should get some very careful guidance on it.

Do you know of any waivers, for example, of this particular exception?

Captain ECHOLS. We have difficulty knowing, since there has been no public proclamation of what exemptions, waivers, and other roundabout ways of getting around the regulations, have been given. This just has never been made public. This is one of the reasons for implementing this public law. Obviously people are not too willing, even under the face of the wrath of Congress, to make these public. Ms. ABZUG. I have a very important question.

In another part of this committee, I chair a different subcommitteeone on freedom of information and privacy in Government Information and Individual Rights Subcommittee. Our role is to see that information is provided for the public; to see what information systems in the publication of regulations certainly is within that. I am really quite shocked to hear that the regulations are not readily available. I certainly would appreciate some additional information, so that we could get into that question.

Mr. KATZ. Perhaps I could clarify some of the Association's contentions in this area.

It is not so much that the regulations themselves have been kept secret that we are complaining about. It is just that they are not available; they have not been available and used by the people who need them, in terms of the exemptions and waivers and special permits and whatever other names that have been given out by the Department in one way or another to relieve people who are subject to the hazardous materials regulations and their effect.

On occasion, some of these are published in the Federal Register after they are granted. That is, the special permits, for example; there is publication in the Federal Register once they are issued so that people will know what has been given out.

Our complaint really goes to section 107 of the Hazardous Materials Transportation Act which requires that there be a safety analysis when an exemption is applied for, that exemptions merely go for 2 years. And then it states, in addition-section 107 explicitly states

"A notice of an application for issuance or renewal of such exemption shall be published in the Federal Register. The Secretary shall afford access to any such safety analysis and an opportunity for public comment on any such application ***" This is in section 107(a) of the


Section 107(d) goes on to provide that these procedures are the only method for relieving people of the requirements of the law except in an emergency situation.

This law went into effect-it was enacted on January 3 of this year. Since that time, there have been over 600 exemptions or waivers issued by the Secretary. In not one of these has there been publication of the notice of application for the exemption in the Federal Register; and in not one case has there been a real opportunity for public comment on the application.

We feel that the public could assist the Department, if they knew about these exemptions; and, because of that, they ought to get the opportunity to comment on the proceedings.

In addition, we feel that the Department of Transportation ought to be complying with these provisions simply because they have been put into law by the Congress; and the Department of Transportation and the FAA are the agencies which are responsible for enforcing these laws. Instead of enforcing them, they have set an example of either defying them or ignoring them or coming up with excuses for not following these explicit provisions in the statute.

If that is the kind of example that the shippers and carriers of hazardous materials have by the person who is most responsible for enforcing the law, it is no wonder that 75 percent of the packages are shipped in violation of the rules.

Mr. RANDALL. Thank you for that contribution, Mr. Katz.

The Chair will simply state and serve notice right now that whoever it is downtown-Department of Transportation, FAA, or whoever they are will be given an opportunity to come up with those 600 exemptions.

Staff says the FAA and DOT have provided copies of these exemptions to the subcommittee; there is a lot more to that. We are going to interrogate them very thoroughly as to what they have done and the reasons therefor-why there was no opportunity for public comment. Whoever may be in the room, we want to give you just a little warning that we are not going to let up on this. We are going to doggedly keep after this to see what has happened with these 600 exemptions, and to whom they were granted, and why, and whether they come within the purview of some of the humanitarian valid and legitimate exemptions that the captain spoke of.

I believe it was Ms. Abzug who mentioned the B-52 crashes over Greenland and one over Spain. Actually we had one down here in North Carolina, didn't we? What happened down there? Tell us about that, Captain.

Captain ECHOLS. That was military. We are not familiar with that


I will give you an example of where we run in as pilots on this special permit exemption problem.

Back in the middle of February, after we had implemented our STOP program and pretty effectively banned the carriage of most

hazardous materials on passenger airplanes by our own actions, we got a call one night from one of our member pilots in Indianapolis. He was sitting at the municipal airport. He had a cargo flight operating under LOCAIR, which is military contract. He had three booster rocket motors on the airplane, and a military courier to brief him and tell him about these materials. They were traveling under special permit to the DOD from DOT. These had been sitting on a shelf; they were used for booster rockets-I suppose some nuclear device.

The booster was operated by mixing a very high, strong acid in one container, and a strong oxidizer in another container. By puncturing these two and putting them together, it developed tremendous rocket


Well, after so long in these stainless steel containers, it eats the container and they have to send it back and drain it, and so forth.

He had three of them on board. The specific instructions were that, in case of a leakage of these materials-they were highly toxic-he would probably die within 20 seconds after inhaling the fumes.

The instructions said that he should attempt to jettison these materials, in case there was a leak, and this was quite impossible in this case because he had pallet loads in front of it, and pallet loads behind it; and airline type aircraft aren't built that way.

Strapped to the third one of these were three life suits put on with masking tape which meant that-and they were instructed by the courier to this effect-if he told them to get these suits on, to get them on and don't question it within 20 seconds. Well, they would have had to crawl over a considerable amount of freight to get these suits.

This is what we are talking about, and why we are so upset about not having a chance to talk about these things before these special permits are granted. There is no way that a crew member in commercial aviation can deal with that kind of material.

Mr. RANDALL. Thank you, Captain Echols.

The Chair is also the fifth ranking member of the Armed Services Committee. We are going to try to see what happened here. I am asking my staff to find out from the Armed Services Committee what happened here. Why was the crew instructed to jettison these materials. That is rather bad advice; before long we are going to start bombing our own country here.

I have one or two observations. General Ben Davis speaks openly out in San Francisco; he gives pretty good advice, but none of his superiors or associates have done much in the way of action. He says that he has found that 75 percent of all hazardous materials shipments were in violation; but the big question is what he or any of the DOT officials there are doing about it.

I commend you on your summary of this whole problem. We scem to have a situation where an accident is just waiting to happen.

I also want to say to my staff and to the other members of the committee that we thoroughly intend to call in the Secretary himself. We want to know why, charged as he was with making a unified, consolidated hazardous material program, it took him less than a month, according to your testimony, to redelegate the enforcement and inspection functions back to FAA.

Surely there ought to be some kind of sanction, maybe it is through the Appropriations Committee. Maybe we will have to work with

Eddie Boland. I learned long ago that the best way to get some action in local government was to pull some purse strings. So maybe that is the best way to get some action on this thing-through the Appropriations Subcommittee.

I also want to call in the FAA Administrator, Mr. Dow, and find out why, with 5 months lead time, he waited until the last minute and then gave the airlines another 6 months to buy the necessary monitoring equipment. Isn't that what has happened?

Captain O'DONNELL. Yes; it is.

Mr. RANDALL. You hit the nail on the head, too, Captain, when you say this is just another instance of the trend of governmental units it is just more and more study without some meaningful action. Do you have some questions, Ms. Abzug?

Ms. ABZUG. I have a lot of questions, Mr. Chairman, but I do think we have to hear the other witnesses. I think we have gotten some important information this morning. What is of particular interest to me is that we cannot see that these laws are implemented by regulations unless information is made available. I am particularly concerned about that, together with the chairman of this committee, and intend to look into the failure to make this information freely available. And I mean not only with the regulations, but with the freedom of information.

That includes specifically, as I read the section of the statute, notice provisions, and so forth, and access to safety analyses and opportunity for public comment, which I think is critical. We do not allow this to happen in the enforcement of law here, in connection with hazardous materials, or in any other place; otherwise, our whole system breaks down.

In a period of history, where we have finally come to the conclusion that the vast methods of Government are to be opened properly to the public, where there is no specific reason to exclude the publicsuch as national security, and so on. And this is an area, certainly, where there may be some direct violation of recent laws enacted by the Congress-not only the hazardous substance laws, but the Freedom of Information Act in the new amendments.

The public's right to know and the people's right to participation in knowing how a course of Government is developing and the right to participate in their own safety, I think, is uppermost and critical. I want to thank the gentlemen this morning for this information, because we intend to approach this from all of the capacities that we have in the Government Operations Committee.

Thank you.

Mr. RANDALL. Thank you, Ms. Abzug.

Chairman Reed, would you come in, please?

It is good to have you back, sir. You have helped us before and made quite a substantial contribution to our record in another area of inquiry.

The Chair had occasion, on another matter, to visit the metropolitan area of New York. At the busiest hour of all, at about 6:30 on a Sunday evening, he observed the stacking process of some 100 planes headed for JFK, LaGuardia, or Newark. The Chair came away with somewhat less concern than when he went up there. The FAA does not do everything bad-just some things.

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