Norfolk Southern CEO Makes Obligatory Congressional Appearance But Doesn’t Commit to Rail Safety Changes

Yves here. Norfolk Southern got a luck break when the Silvergate liquidation and Silicon Valley Bank shuttering ate the business section headline, so its lame performance before Congress went largely unnoticed. This article helps to address to lapse. Importantly, it presents testimony that contracts the Norfolk Southern pretext for burning five railcars of toxic chemicals: that they were heating and at risk of explosion. Most observers didn’t buy that and recognized the more likely reason was the railroad’s eagerness to get rail service back on track.

Indeed, it appears that at most only one of the rail cars was getting hot.

However, this otherwise useful article latches onto the notion, thoroughly debunked by Lambert, that failure to implement brake regulation was a big cause of the crash. In fact, it was precision scheduled railroading…whose effects rail workers sought to have addressed in the 2022 strike threat. The Biden Administration quashed those demands.

By Justin Mikulka, a research fellow at New Consensus. Originally published at DeSmogBlog

An aerial view of the Norfolk Southern freight train derailment in East Palestine, Ohio captured on February 5, 2023. Credit: National Transportation Safety Board, public domain​

On March 9, the Senate held the first congressional hearing on rail safety following the February 3 Norfolk Southern rail disaster in which a nearly two-mile-long train carrying hazardous materials derailed and caught fire in East Palestine, Ohio. If the people of East Palestine were hoping to see the wheels of justice start to turn in their favor with this hearing, they may be sorely disappointed. The hearing began with some troubling revelations from a first responder, before senators went on to grill Norfolk Southern CEO Alan Shaw, who dodged questions and refused to commit to any meaningful changes to his company’s safety strategy.

It likely wasn’t a pleasant experience for Shaw, especially when Senator Sheldon Whitehouse (D-RI) informed him mid-hearing that another of Norfolk Southern’s trains had just derailed. However, even this painful irony could not nudge Shaw toward specific commitments to financially support East Palestine residents or to back new rail safety regulations.

Some of the worst fears over public and environmental health in the East Palestine disaster, which is unfolding in a region long-plagued by industrial pollution, centers on vinyl chloride, a colorless gas associated with various cancers and used to make plastics. The derailed Norfolk Southern train was carrying five rail tank cars of this chemical, and worried about a potential explosion, the emergency response performed a controlled burn of those five rail cars. This controlled burn created a massive cloud of toxic smoke that hung over the region for hours due to a weather phenomenon that held it low in the atmosphere.

A smoke plume rises into the sky over East Palestine during the February 6, 2023 controlled burn of rail cars holding vinyl chloride at the Norfolk Southern derailment site. The U.S. Environmental Protection Agency (EPA) was monitoring air quality. Credit: EPA, public domain

On February 6, Norfolk Southern said this controlled burn was necessary because the temperature in one of the tanks was rising and there was risk of an explosion that likely would have sent shrapnel flying in a mile radius and exposed the town to the vinyl chloride. Ohio Governor Mike DeWine corroborated this report, saying he was given “two bad options” for the outcome in East Palestine.

However, shortly after the accident, Sil Caggiano, a hazardous materials specialist and former Battalion Chief with the Youngstown, Ohio fire department, told WKBN that, “We basically nuked a town with chemicals so we could get a railroad open.”

Eric J. Brewer, Director of Emergency Services for Beaver County, Pennsylvania, was one of the first responders on the scene in East Palestine and testified at the Congressional hearing. During questioning, he described learning of the decision to switch from a controlled burn of the one vinyl chloride car that was heating up to all five cars as “jaw-dropping.” He was not involved in this decision, according to his testimony.

Brewer also noted how the emergency response changed once Norfolk Southern management showed up. “The boots-on-the-ground crews were great to work with,” Brewer said. “It seems as bosses or management get there, that’s where the communication failures start.”

In Brewer’s opening statement, he explained that Norfolk Southern pushed the decision to burn all five tanks holding vinyl chloride and made this change in strategy outside of the coordination process involving first responders:

“We learned that Norfolk Southern wanted to do a controlled detonation of the tank car in question. We were assured this was the safest way to take care of the railcar that was causing the problem. This was to occur around the noon time frame on Monday. When we were in one of the planning meetings we learned from Norfolk Southern officials that they now wanted to do the controlled detonation on five of the tank cars rather than just the one that everyone was thinking. This changed the entire plan because it was going to be a bigger impact to the area. This confusion was because Norfolk Southern officials did not communicate and were not in the room when the planning process was happening.”

If only one tank car was heating up, why were all five intentionally burned? This decision potentially released up to five times more toxic contamination into the surrounding air. On March 2, Shaw explained to the Associated Press why responders ultimately burned all five rail cars.

“The factors on the ground at that time were that the safety valves on the rail cars had failed and the temperatures inside the railcars were heating up,” Shaw told the AP.

However, the Norfolk Southern CEO’s explanation stands in contrast to the claim that only one car was experiencing a temperature rise, which is what Brewer explained under oath at the March 9 Senate hearing and what the National Transportation Safety Board (NTSB) initially concluded in a preliminary report published on February 23. According to that NTSB report, “five derailed DOT-105 specification tank cars (railcars 28–31 and 55) carrying 115,580 gallons of vinyl chloride continued to concern authorities because the temperature inside one tank car was still rising.” 

Since that time, the NTSB has said that three of the five pressure relief devices on the rail tank cars may have been compromised when their aluminum covers melted in the fire that resulted from the derailment, but offered no definitive evidence that this had affected the release valves’ performance. The agency will be investigating further. The other two cars’ valves had steel covers, which don’t melt in fires. The main purpose of these pressure relief devices is to release pressure inside tank cars due to fire. Currently, there are no regulations requiring the rail industry to have steel covers on these devices. That’s not surprising because the rail industry resists regulationwhenever possible and is very successful at rolling back or weakening even the few safety rules that its regulators have enacted.

At least one senator appeared skeptical of the decision to burn all five tanks of vinyl chloride. “Someone may need to be held responsible who made the decision to burn this off, because some of this, a lot of this could have been prevented,” said Senator Markwayne Mullin (R-OK).

The people of East Palestine and the broader region will be dealing with the consequences of that decision for a long time. Meanwhile, the tracks damaged by the derailment are back in place, and trains were traveling through East Palestine on February 10, just a week after the accident darkened the skies of the Ohio River Valley.

Norfolk CEO Refuses to Support New Proposed Rail Safety Regulations

In response to the East Palestine disaster, on February 21 the Biden administration announced plans for “pursuing further rulemaking, to the extent possible under current statute, on high-hazard flammable trains (HHFT) and electronically controlled pneumatic brakes (ECP).” As DeSmog has explained, the addition of electronically controlled pneumatic brakes is likely the most important and immediate measure that would significantly improve rail safety.

In 2015, the Obama Department of Transportation issued regulations requiring modern ECP brakes for trains carrying hazardous materials, but just two years later, the agency, then under President Trump, repealed them.

In the March 9 hearing, Senator Whitehouse noted that Norfolk Southern was on the record saying that the 2015 safety regulations were “not in the public interest.” Whitehouse told Shaw that he wasn’t looking for any further comment from the CEO on ECP brakes at this time but formally requested from him, “All communications between your company and trade association with the Trump administration relevant to that repeal.” If those communications become public, they could provide new insight into the rail industry’s ongoing attempts to fight safety regulations that could protect the public. 

The senators at the hearing also took aim at Norfolk Southern’s corporate financial priorities. Senator Jeff Merkley (D-OR) asked Shaw if he would “commit to no more stock buybacks until you invest in safety.” In his comments, Merkley noted that in 2016 a Union Pacific oil train had derailed and exploded in a near-miss not far from a school in Mosier, Oregon. He went on to express confidence that “if we can put people on the moon, we can put brakes on every train car.”

“I hope you support the coordinated electronically controlled system you’ve been fighting against for years,” the Oregon senator finished to Shaw.

In response, the Norfolk Southern CEO did not commit to any concrete actions, such as halting stock buybacks. Instead, Shaw said only, “We are committed to the legislative intent to make rail safer.”

During the hearing, Senator Ed Markey (D-MA) made the important point, also reached by the NTSB, that this accident was “preventable” and “a disaster waiting to happen.” He attributed the cause to “corporate greed” and called “outdated railway safety regulations” fuel for “the toxic fire that was ready to combust.”

In closing his comments, Senator Markey asked Shaw if he would make the residents and business owners of East Palestine financially whole. The rail CEO responded with a variation of a phrase he used at least five times in the hearing: “Senator, I’m committed to do what’s right.” Markey replied emphatically that making the residents financially whole was “the right thing to do!”

History Rhymes in East Palestine
The recent congressional hearing was reminiscent of many similar hearings after 2013’s deadly Lac-Mégantic, Quebec oil train disaster, which was followed by a string of other major oil train derailments across North America that caused large fires and oil spills. At that time, there was a lot of talk about how to improve rail safety and eventually the Department of Transportation rolled out new but weak regulations in 2015. Yet even those were subsequently gutted as a result of industry lobbying efforts.Much is being made of how the rail safety proposals coming from Congress today are bipartisan. However, some Republicans in Congress are already speaking out against new regulations.

Representative Troy Nehls (R-Texas) told Politico he did not want “more burdensome regulations” in response to the East Palestine disaster. Senator John Thune (R-SD) told The Hill, “We’ll take a look at what’s being proposed, but an immediate quick response heavy on regulation needs to be thoughtful and targeted.” This is a consistent position for Thune. As DeSmog reported in 2015, “Sen. John Thune (R-SD) was adamant that the proposed new [hazardous train] regulations were ‘unattainable.’”

History shows the rail industry and its supporters in Congress are likely to prevail in maintaining the status quo. When an exploding oil train killed 47 people and destroyed downtown Lac-Mégantic, Canada, it sent shockwaves through the highly-connected North American rail world — the oil train had originated in the United States — and set the U.S. Congress and regulators on alert. Due to the high rail traffic crossing the border between Canada and the U.S., the two countries work to harmonize their rail regulations so that trains crossing the border meet regulatory requirements in both countries.

But after the Lac-Mégantic disaster, even this level of immediate loss wasn’t enough to spur meaningful new safety regulations for the industry. And that tragic reality means the poisoning of East Palestine is unlikely to result in the necessary changes that would eliminate these accidents, which the NTSB has called “100% preventable.”

Senator Markey appears to be a student of such rail history. Near the end of the three hour hearing, he showed frustration when Shaw repeated the same vague talking point that “I’m committed to doing what’s right for the community…”

The senator cut him off, saying:

“What’s right for the community will then be balanced with — what we can see from your stock buybacks — by what’s right for Norfolk Southern. And that’s going to be to sue, to fight, resist full compensation for these families. That’s the pattern we’ve seen over the last 10 years in your one-third reduction in workforce with its natural concomitant reduction in safety. We’re not hearing the right things today. These families want to know long-term are they just going to be left behind. Once the cameras move on, once the national attention dies down, you know, where will these families be? I think they’re going to be in the cross hairs of the accountants of Norfolk Southern saying we’re not going to pay full compensation. That’s why we’re going to stay on this case until everyone in East Palestine is given the justice they deserve.”

This July will be the 10-year anniversary of the Lac-Mégantic disaster. In December 2022, Canadian Pacific, one of the railroads implicated in the accident, finally won its legal battle to be absolved of all responsibility, Though a separate rail and several oil companies paid into a CAN $430 million settlement fund for victims, Canadian Pacific’s legal challenge delayed payouts to the families of victims.

And downtown Lac-Mégantic, a once-idyllic town similar in size to East Palestine, remains mostly a vacant lot. The cost to rebuild the town is estimated to be as much as two billion dollars, according to the town’s mayor in 2015. Executives at MMA, the now-defunct U.S.-based rail company that owned the exploding oil train, were fined $50,000, and MMA’s Canadian subsidiary paid $1 million for the oil spill that polluted the lake. 

Perhaps now in the U.S., the efforts of this Congress can produce a different outcome for the people of East Palestine, but history — and Shaw’s testimony — suggests otherwise.

CORRECTION (3/15/23): Due to an editing error, the original version of this article stated that the oil train that derailed in Mosier, Oregon was owned by BNSF. That has been corrected.

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  1. zagonostra

    This story needs to be kept in the forefront of the public’s mind and not disappeared down the memory hole like Flint.

    1. Piotr Berman stresses that “precision scheduled railroading…” is the culprit, which at the first glance, is strange: why should we prefer imprecise scheduling? From the article linked here, one can surmise that the name is a corporate euphemism that cover merciless cost cutting. One aspect being cutting the time for inspecting a car giving ca. 11 seconds to inspect a wheel with its bearing, to check adjacent mechanical parts of the truck, and walk along the car that easily can take several seconds (30 seconds per car, 4 seconds per wheel), another aspects is cutting time to form trains, preventing safer sequence of cars, and so on.

      What is NOT entailed in the concept is delivering cars to customers with precise timing.

      I would love to know more about the cost cutting that author covers with PSR label. About wheel bearing, I have only bicycle experience, so a bearing can hardly overheat, but it can kind of decompose, forcing a walk home, and a walk to bicycle shop (l am blessed with one 20 minute walk away). What I am trying to say is that it is not obvious how to spot the fact that a trouble can develop during next few hours of the ride. Perhaps it is easier to spot a potential problem by thorough check, say once in 3 month. Or I may be wrong, namely that incipient bearing troubles tend to be visible from outside.

      In the same time, the most obvious way to avoid accident would be to act on what was observed by security cameras of non-railroad businesses 20 miles west from the derailment. Visibly hot car surely had a higher temperature than it was reported by NS sensor in roughly same location. My conjecture is that there is a triple safety mechanism at work:
      1. periodic thorough inspection
      2. one inspection per trip for visible damage
      3. sensors on the rough checking for overheating every 20-30 minutes
      and all three were too lax or too insensitive. Of course, the management is least sensitive of them all.

      A hypothetical calculus is that if we have 1000-1700 derailments per year, and the average cost of copying with a derailment is 1000,000 dollars, and capital+labor costs of reducing the number to, say, 100 would be more than 2 billion amortized per year, it is financially rational to avoid that cost, and to spend up to 100 million for lobbying etc. to avoid regulations forcing such expenditures. I must stress that I am using round numbers that seem plausible to me, but the proportions have to be like that.

      But something seems horribly wrong with the financial calculations of railroad companies. They clearly could take some business from trucking industry as they spend so much less on labor and fuel per ton x mile than trucks, and that should justify large capital expenditures. Is the fault with the financial markets that reward stocks of cash cow companies that exhibit energetic cost cutting and punish re-investment of profits aiming to increase future revenue? I got impression that the incentives for company managements stem from the performance of stock prices, while the analysts of investment banks etc. have very sceptical attitude to long term investments and enthusiastic attitude to cost cutting that hides disinvestment.

      More dramatically, this mechanism is responsible for plane catastrophes that tarred Boeing brand, tinkering with increasingly obsolete design of mid-range aircraft instead of developing a new one, or perhaps investing in new airplane electronics if they had a concept that sensors + automatic controls can compensate (electronics were so obsolete that computers could not handle multiple sensors which is a must if you want to rely on sensors). Instead, like railroad, Boeing decided to dis-invest.

  2. upstater

    The article unfortunately doesn’t mention hotbox, axle, bearing or [hotbox] detector, the primary and secondary causes of the failure and subsequent derailment. Nor propose any regulation of those causes.

    While it is relevant to detail the lobbying of railroads to avoid ECP or Hazardous cargoes regulations or mandates as they relate to East Palestine, railroads have been very successful in holding off safety mandates for decades. The NTSB recommended Positive Train Control in 1990. PTC a GPS based system that provides signaling and emergency brake application in the event of a missed signal. It only became mandatory by an act of congress after the 2008 Chatsworth California headon between a commuter train and freight train, killing 25. The commuter engineer was texting and missed a red signal. It targeted completion in 2015, but foot dragging strung it out to the end of 2020. A multibillion project, advanced PTC dispatching and accident avoidance improves operation performance, perhaps in some regards facilitating precision scheduled railroading.

    The article presents Senator Ed Markey favorably, perhaps deservedly. 7But Democrats yapping about rail safety and doing something about it are 2 very different things. Democrats have controlled the executive for 18 of the past 30 years with strong regulatory authority through the DOT, FRA STB, Pipeline and Hazardous Materials Safety Administration (PHMSA) and others. What has it done? Not very much, industry consolidation into regional monopolies, drastically reduced service at higher cost, cutting of the workforce, stagnant or degrading safety, etc. Class 1s carry less carload freight than 2006, while truck traffic up something like 30%+. Only container traffic (mostly imports) has grown until the recent year and Covid. Traffic has been steadily down each week for over a year, part demand but also the ability of class 1s to deliver reliably.

    1. square coats

      It also seems like the EPA might be seriously shady in how it’s been conducting tests to reassure residents everything is safe, and while I would like to see the people in charge of Norfolk Southern sued for all they’re worth and barred from future positions with responsibility for anyone’s safety, it seems like the current government’s complicity in the disaster and its handling might try to slink off unnoticed with all attention focused on NS’s faults.

  3. vao

    I find that term of “controlled burn” troubling — what exactly was “controlled”? Certainly not the release of toxic particles over a wide area.

    I know that Wikipedia is not the final word on the matter, but there is a page there about “controlled burns”. Surprise: a controlled burn refers exclusively to the agricultural and forestry practice of setting fire to stubble or undergrowth so as to reduce the accumulated dry biomass in view of limiting the risk of future large wildfires, or to stop an on-going wildfire. It is not used to describe forcing the deflagration of a mass of chemical compounds.

    Was the term abused by Norfolk Southern, or has its meaning recently extended to domains outside forestry and agriculture?

    1. Piotr Berman

      I guess in this context, “controlled” means “decided by humans” instead of “accidental”. So humans killed all poultry and part of dogs in the area.

      Now, thinking about it, there is a parallel to Grenfell Tower fire, in both cases aesthetic aluminum parts were selected instead of something less shiny and fire resistant. Grenfell Tower had aluminum cladding (plaster would be cheaper and safer, but would not shine), and railroad cars had aluminum covers instead of steel.

      1. square coats

        It struck me as nuts that they’d use aluminum instead of steel on safety valves when super toxic chemicals are concerned so I was thinking aluminum must be cheaper but looked it up just now and apparently steel is actually cheaper. Poking around a bit more, I’m guessing aluminum is used because it’s much more lightweight than steel, and then perhaps the cost cutting comes from not having to pay extra to add a steel protective cover on top of the aluminum cost?

        Maybe there are other reasons? It seems really wild to me. Just from tinkering around with projects involving metal, my impression of aluminum is that it basically just crumples or snaps so easily..

  4. Adam1

    In 1859 Andrew Carnegie, then superintendent of the western division of the Pennsylvania Railroad, to shock and surprised of his employees ordered the burning of all the cars of a train derailment. It was far more cost effective to pay for the lost cargo and keep the trains moving than it was to try and salvage the mess and the area. It became the norm after that.

    Some things just never change.

  5. in_still_water

    The following part of the article seems to read that Obama issued regulations requiring modern ECP brakes for hazmat carrying railcars and Trump recklessly removed them. Message received. It’s all Trump’s fault. Sigh.

    In 2015, the Obama Department of Transportation issued regulations requiring modern ECP brakes for trains carrying hazardous materials, but just two years later, the agency, then under President Trump, repealed them.

    In May of 2015, DOT issued a final rule that rail tank cars in certain configurations and operating at certain speeds would need to be equipped with ECP brakes by 2021 for those cars carrying crude oil and by 2023 for ethanol.

    Both railroads and some industries and others – protested the final rule – not only due the efficacy questions concerning the ECP brakes but also challenged DOT’s cost\benefit analysis conducted for the rulemaking.

    The Fixing America’s Surface Transportation Act (FAST Act), enacted in December 2015, required the DOT to enter an agreement with the National Academy of Sciences to physically test ECP brakes and to redo a cost/benefit analysis by the end of 2017. According to GAO-17-122, “the Act requires the Secretary of DOT, by December 2017, either to determine the ECP brakes are justified based on the updated RIA or to repeal the ECP brakes requirement”. pg. 12.

    It provides me little comfort to have to

  6. Piotr Berman

    I had a thought. I wrecked car but once in my life as I drove in a starting rain and lost control. No acceleration or breaking at that moment, just zero friction. A policeman came to the wreck (seatbelts work!), was very polite, helpful, and gave me a ticket for unsafe driving. And yes, whatever my speed was, it was too high under the downpour condition as evidenced by my car in the concrete ditch. So Norfolk Southern should get a fat fine for operating in an unsafe manner, as evidenced by the wreck. And here we have data: according to their own measurements, the temperature (and thus friction) in one bearing was rising, while the train kept going at higher speed than average, so like my young self should notice the downpour, NS should notice the sign of danger while it not react at all.

  7. some guy

    Isn’t Warren Buffet ( and by extension Charley Munger) a very major investor in and partial owner of the Norfolk Southern railway? If so, wouldn’t the management leadership there be doing what Buffet ( and Munger) want done to raise and keep raised the value of their partial ownership of that railroad? And any other railroad that Buffet-Munger may happen to partially own?

    The cossacks work for the czar. Is there a way to force Buffet-Munger to have to think about this and respond to it in public?

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