EAST PALESTINE, Ohio — National Transportation Safety Board Chair Jennifer Homendy sharply criticized Norfolk Southern today for the way it responded to the board’s investigation of the Feb. 3, 2023, hazardous materials derailment in East Palestine.
NS stonewalled board requests for information, ran its own probe on the side in violation of NTSB rules, and sought to influence the board’s independent investigation, Homendy said at the end of a daylong hearing on the board’s findings and recommendations.
“Norfolk Southern’s abuse of the party process was unprecedented and reprehensible,” Homendy said.
“Numerous times Norfolk Southern delayed or failed to provide critical 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.”
NS disputes this.
“At all times, Norfolk Southern cooperated fully and ethically with the investigation, with full transparency,” the railroad said in a statement. “Our communications with NTSB staff and Board Members were always motivated by a desire to ensure they had all the relevant information for their independent evaluation and by a shared commitment to advance rail safety.”
Homendy cited two examples of what she said demonstrated the railroad’s lack of cooperation.
SPSI, one of the railroad’s derailment contractors, maintained that it did not take or keep written records on temperature trends in the derailed tank cars, Homendy said. But two months later the board learned, through employee text messages and emails, that records were indeed kept.
The day of the derailment, NTSB’s lead investigator, Ruben Payan, told NS to preserve all evidence for investigators. Five times over the following two weeks he requested a full download of the locomotive event and image recorders, Homendy said. But on Feb. 16, NS informed the board that all but 20 minutes of the data had been erased because the locomotive had been put back into regular service.
NS also conducted its own experiments on vinyl chloride and then sought four times to have the evidence submitted. “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,” Homendy said.
Payan refused to allow the information from NS’s experiments to be included in the record. Norfolk Southern lawyers appealed the decision to the NTSB’s general counsel, who informed the railroad that the investigator in charge has the final say.
“Norfolk Southern then went around the investigator in charge and our general counsel and sent the material directly to the board members — five presidentially appointed, Senate confirmed government officials — via email on May 1st urging us to overrule our investigator in charge,” Homendy said.
“This demonstrated complete disregard for the conduct of our independent investigation,” she added.
During a routine meeting with NTSB officials two weeks ago, an unnamed NS executive asked the board to quash the rumor that the railroad decided to vent and burn derailed five tank cars of vinyl chloride so that it could more quickly reopen its main line. “That is not only unethical and inappropriate, but defending an entity’s decision-making is not our role,” Homendy said.
The senior NS executive also said the East Palestine hearing was an opportunity for the community and railroad to move on.
“The entire exchange ended with what everyone from the NTSB knew they heard in the room was a threat — and it was delivered that way — to use every avenue and opportunity to vigorously defend their decision-making in media and hearings going forward,” Homendy said.
That’s Norfolk Southern’s right, Homendy said. “But it is not our role to defend Norfolk Southern,” she said. “We’re here to protect the American people.”
Homendy said she struggled with her decision on going public with Norfolk Southern’s conduct because she feared it would overshadow the board’s findings and recommendations.
But she wanted everyone at NTSB to understand that “we are impervious to anything but the truth. We are the gold standard when it comes to accident investigation around the world. I will not allow will not allow any entity to impune that reputation or malign the reputation of our investigative staff — our top notch investigative staff — which is exactly what the aim was.”
Allan Rutter, a former administrator of the Federal Railroad Administration who is now freight analysis program manager at the Texas A&M Transportation Institute, questioned Homendy’s decision to raise these matters at the East Palestine hearing.
“I appreciate her standing up for the independence of her investigative staff but I wonder if that was the best venue and timing for the criticism,” he wrote in a LinkedIn post.
With the present SCOYUS decision NS might try to take all fines to a jury trial??
All that would need to done to solve this and any problem surrounding an NTSB investigation is give the NTSB exclusive fining powers and the ability to create mandatory legislation based on the facts of their investigations. The NTSB is seen world wide as the premier accident investigative body, generally for air related accidents because usually it is more about lives lost and prevention of future incidents rather than property damage. On the flip side, railroads are a long time, curmudgeonly group of participants who won’t budge unless forced to change. That has been proven time and time again and continues to this day. Unless transportation of any type is required by law to accept the decisions of EXPERTS (NTSB) and not of corporate lawyers whose only goal is to get their railroad off the hook, this mess will continue. I do believe that NS has taken steps to improve the culture of their corporation for safety and transparency but that will only be good until the next “East Palestine” occurs at which time the NTSB will have been proven correct in their analysis as mentioned in the story, or NS will have shown that they have learned their lesson, no thanks to Ancora who still believes the payouts to the city and citizens of EP was unnecessary. Of course, none of their people live there. But this is the type hegemony that will occur if financial speculators continue to take over major utilities such railroads, power generations systems and other publically regulated entities in an attempt to dominate and impress their shortsighted goals on long term companies which require long term investment, not only for capital operations but for safety and adherence to rules that only entities like the NTSB can enforce or cause congress to act upon. As they say, when it comes to safe transportation, the rules of change are written in blood…
As a records manager, NS’s failure to quickly capture the data from the event and image recorders would be an obvious violation. That should have been one of the first things they did before returning the locomotive to service. I’ll have to side with NTSB on that issue.
If the NTSB is in any way unreliable in their accident investigation experience, it’s news to me.
The idea that a corporation gets to investigate itself is ridiculous. I say fine the railroad 100 million dollars. Make it so that all these shenanigans don’t become just the price of doing business.
“Parties are not permitted to manufacture their own evidence and develop their own set of facts outside of the NTSB investigative process, ”
That statement left a bad taste in my mouth, with the implication that the NTSB is the only source of facts. Nobody is omniscient, and I wouldn’t be surprised if both the NTSB and NS were a bit off with their respective conclusions.
I understand your sentiments but I think what the NSTB Chairman Homendy was saying was that the facts were at the site and documented by science/technology. The only reason NS would have been trying to recreate the evidence was to find a loop hole to help them out of some part of the decision to reduce a fine or cast the blame on someone else. That is what the railroads have always done in the past. At times like these it is better for everyone to have the same goal… a factual conclusion… rather than speculation on other outside factors, There can only be one source of truth in an investigation and it should come from total cooperation by all involved so that the investigative body can make final recommendations that are valid and change the way things are done in the future.
My faith in government agencies run by unelected and unaccountable bureaucrats is at about zero. That said, destroying any data involved in this or any other accident by the railroad involved is completely unacceptable. Whether they are or aren’t destroying data to escape liability, it sure looks that way. NS also should not be the judge of the value of that data.
Corporate lawlessness, just like Boeing… The NTSB investigation is a legal proceeding and Norfolk Southern obviously violated the protocols. Of course the corpoate uniparty that controls government will let this pass.
When will corporate persons be subject to capital punishment? Last time I recall was Arthur Andersen and that’s a long time ago!
You mean Enron I presume?
One of Arthur Anderson’s employees at that time was recently appointed to the UP board.
Arthur Andersen was the audit firm that shredded documents to hide Enron’s shady accounting practices back in 2001.
5 MEMBERS OF NTSB BOARD ARE PRESIDENTIAL APPOINTMENTS.MORE BUREAUCRACY.IT SOUNDS LIKE THE JUDICIAL SYSTEM LATELY AND THE US BORDER.
Show your support. How about buying a house in East Palestine. Cheap real estate.
No need for all CAPS.
Now me, I’m on the side of Norfolk Southern strictly due to the foibles and often bias by Government agencies. But I hope it settles down to a quiet and honest conference.