Ohio leaders react to NTSB’s criticism of Norfolk Southern’s East Palestine response

Aerial view of the train derailment wreckage in East Palestine. (Screenshot from NTSB B-roll recorded Feb. 5, 2023)

Federal officials tasked with investigating last year’s East Palestine train derailment painted a damning picture of the company responsible for the crash.

During a board meeting in East Palestine on Tuesday, National Transportation Safety Board Chair Jennifer Homendy described Norfolk Southern’s actions as “unconscionable.”

In March, Homendy told a U.S. Senate committee the “vent and burn” procedure Norfolk Southern pushed for was unnecessary and the company compromised the decision making process by failing to disclose dissenting opinions.

NTSB Chair casts doubt on vent and burn strategy following East Palestine, Ohio train derailment

This week she added criticism of the company’s conduct in the months following the crash .

“Numerous times, Norfolk Southern failed to provide investigative information to our team,” Homendy said. “Twice, at the request of staff, I called Norfolk Southern stating I would issue subpoenas to get the information if it wasn’t immediately provided to our team.”

She described how the company falsely claimed it had no record of train car temperatures. In a later interview an employee acknowledged they had those records. The NTSB also directed the company to preserve all records from the crash only to find all but 20 minutes of the train’s image recorders had been erased because the locomotives were put back into service.

Four times, Homendy said, Norfolk Southern attempted to submit their own evidence for the record, in violation of NTSB rules.

“Parties are afforded the privilege, not the right, to develop proposed findings from the evidence of our investigation,” Homendy said. “Parties are not permitted to manufacture their own evidence and develop their own set of facts outside of the NTSB investigative process, which is exactly what Norfolk Southern did.”

Other board members seemed dumbfounded at how much power the Association of American Railroads, a trade group, has over the industry’s regulation.

“Those of us who come from the aviation industry I think are really mystified by the approach in in rail,” board member Thomas Chapman said, “where you do have, essentially the trade association setting the regulatory standards.”

In a press release , Norfolk Southern insisted it and its contractors’ “only motivation in recommending the vent and burn to the unified command was the health and safety of the community and first responders.”

The company disputed the NTSB’s characterization of it withholding information about the potential danger of an explosion. Instead, Norfolk Southern argued it was receiving “conflicting information” from contractors monitoring the train cars, and that those workers “had every opportunity to participate” in the unified command decision making process.

State and federal reactions

Shortly after the derailment, Ohio’s bipartisan U.S. Senate delegation proposed rail safety legislation. That bill is still awaiting a vote from the full chamber.

In press releases, both U.S. Sens. Sherrod Brown, D-OH, and J.D. Vance, R-OH, emphasized the necessity of passing their legislation.

“The NTSB made crystal clear what we have been saying for over a year – stronger rail safety regulations are needed immediately,” Brown said. “Congress needs to pass the Railway Safety Act to enact stronger safety rules and hold the big railroad companies accountable.”

Meanwhile Vance said, “The findings shared by NTSB Chair Homendy today confirm many of my worst fears. The derailment and subsequent chemical explosion were preventable tragedies resulting from a series of errors made by Norfolk Southern and its contractors.”

“These findings underscore the need for Congress to pass the Railway Safety Act,” Vance added, “which would go a long way to improve our rail safety standards and prevent future disasters like what happened in East Palestine.”

Gov. Mike DeWine harped on Homendy’s point about Norfolk Southern’s failure to properly communicate what was happening in those train cars.

“As someone who was on the scene, and who was there, and who was involved in making that decision, the thing that we wanted most of all was facts and information,” DeWine said. He said incident commanders were relying on the information they got from Norfolk Southern and its contractors.

“We persisted and asked a lot of questions,” DeWine added “And you know, what the NTSB is saying is that they did not give us the answers.”

When to settle

Vance also questioned the wisdom of the Department of Justice and Environmental Protection Agency inking a $310 million settlement agreement prior to the release of the NTSB’s final report. The vast majority of that total goes toward past and future cleanup efforts, but it also includes funding for ongoing water monitoring, a health program and a civil penalty.

Separately, residents within 20 miles of the crash site are being asked to file claims as part of a $600 million dollar class action settlement.

Under that agreement , households within two miles would receive approximately $70,000. If household members file a separate personal injury claim they could receive roughly $10,000 per person. However, the exact amounts will be determined by a settlement administrator and accepting a personal injury requires people to waive future injury claims.

Adam Gomez, a partner with a firm that negotiated the deal called Grant & Eisenhofer, acknowledged the NTSB’s final report likely stoked anger and frustration for people in the community. But he argued their settlement wouldn’t have benefited from waiting for the hearing to take place.

“A lot of that information while confirmed as findings of fact by the NTSB yesterday, was discussed at length in the testimony and the presentations going back a year ago,” Gomez said. He added that through discovery their negotiators have had access to even more information. Most importantly, Gomez contends, their agreement would avoid a years-long court battle.

“All of that information,” he said, “went into the determination of whether, as a legal matter, 600 million now would be in the best interest of the community as opposed to a settlement five, seven, 10-plus years in the future if Norfolk Southern were to exercise all of its appellate rights, like we expected them to.”

Residents have until July 1 to object to the settlement’s terms or to opt out. Those who opt out will lose access to settlement payments but retain their individual right to sue. If the settlement goes forward, people who didn’t opt out, including those who initially objected, will have until Aug. 22 to file a claim.

Follow OCJ Reporter Nick Evans on Twitter.

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