Priorities for rail safety bill debated in U.S. Senate hearing with Norfolk Southern CEO

Members of a U.S. Senate committee on Wednesday previewed what they would push for in bipartisan rail safety legislation likely to progress through Congress in the aftermath of the East Palestine, Ohio, derailment.

Democrats and Republicans on the U.S. Senate Commerce, Science and Transportation Committee hinted they wanted to strengthen requirements about reporting hazardous cargo, communicating in real time with train operators about potential problems and allowing more time for safety inspections.

A few Democrats on the panel also criticized railroads for an overemphasis on profits and stock buybacks, saying money should instead be spent on workers who could improve safety. 

Though there is no evidence anyone broke existing regulations to cause the Feb. 3 Norfolk Southern derailment that led to a chemical fire and release of hazardous materials in eastern Ohio, the wreck could have been avoided if certain safeguards had been in place, several senators and experts said Wednesday.

Voluntary standards, like Norfolk Southern’s use of an app to internally communicate possible rail faults, have proven insufficient, U.S. Sen. J.D. Vance, an Ohio Republican, said. 

“If the app was good enough, then why did it fail in East Palestine?” Vance said. “If the app provided proper notification, then why did firefighters in my state seven weeks ago go fight a chemical fire without knowing what was on it?”

Misti Allison, a resident of East Palestine, told the panel about the lasting effects the wreck has had on the village of 4,700. The derailment left lingering questions about the level of toxic chemicals still in the area, tanking home values and damage to residents’ mental health, she said.

“My 7-year-old has asked me if he is going to die from living in his own home,” she said. “What do I tell him?”

Allison implored the committee “to support commonsense safety regulation, so this doesn’t happen again.”

‘Bipartisan interest’ in rail safety overhaul

Vance and Ohio’s senior U.S. Sen. Sherrod Brown, a Democrat, authored a bill to update rail safety standards that could be the template for a bipartisan overhaul this year.

Ranking Republican Ted Cruz of Texas said he supported several elements of the bill, but objected to parts that he said gave too much authority to the U.S. Transportation Department. 

Cruz, who sought the Republican nomination for president in 2016, spent part of the hearing again criticizing the response to the derailment by Transportation Secretary Pete Buttigieg, who ran for the Democratic nomination in 2020.

Still, Cruz was optimistic about a rail safety bill advancing.

“I think there is bipartisan interest in moving rail safety legislation,” he said. “I think we’re going to be successful in doing that.”

Agreement on communication, monitoring, inspections

Senators voiced agreement on certain problems in rail safety.

Officials in East Palestine should have been notified in advance that a train carrying hazardous material was headed toward them, senators and hearing witnesses said Wednesday. And first responders should have known they were battling a chemical fire and been better prepared for the task with improved training and equipment, they said.

“People deserve to know what chemicals are moving through their communities and how to stay safe in an emergency,” National Transportation Safety Board Chair Jennifer Homendy said. “That includes responders, who risk their lives for each of us every single day. They deserve to be prepared.”

That means they should have access to real-time information and proper communications and planning tools, she said.

Brown said he was working to create a fund to provide training for firefighters on how to manage hazardous material fires. Firefighters who responded to the East Palestine blaze were almost entirely volunteers, he said.

That fund would be paid for by the railroads and chemical companies, he said.

Cruz also highlighted problems with the way railroads monitor train temperatures.

The Norfolk Southern equipment caught a more than 60-degree temperature increase over 10 miles in the minutes before the train reached East Palestine, Cruz said, asking Norfolk Southern CEO Alan Shaw why the jump in temperature “did not trigger action.”

The higher temperature was still lower than “the alarm threshold,” Shaw said. Norfolk Southern practice was to stop trains when they reach 200 degrees above ambient temperature, regardless of the trend, he said. 

The train, while it had gone from 38 degrees above ambient temperature to 103 degrees above, did not reach that threshold, Shaw said.

Clyde Whitaker, the Ohio legislative director of the union Sheet Metal Air Rail Transportation – Transportation Division, said more attention should be paid to how fast a train is heating.

“Once it starts trending, we need to go and check that out,” Whitaker told the panel.

Committee Chair Maria Cantwell, a Washington Democrat, and Vance criticized a Norfolk Southern policy — listed in a Norfolk Southern document Cantwell said was provided to the committee – to spend about 30 seconds on a safety inspection for each side of a train car.

Shaw said there was no such time limit, but Cantwell said the document showed otherwise.

That was not enough time to conduct an adequate investigation, Whitaker said.

Railroad chief offers another apology

As he had at another Senate hearing this month, Shaw again apologized to the East Palestine area and pledged “to make this right.” The railroad was continuing cleanup efforts and was providing hotel rooms and supplies to area residents, he said. 

Norfolk Southern has spent $24 million since the derailment to support the community, he said. And the railroad is in the planning stages of developing a long-term medical compensation fund, property value assurance program and a water testing program, he said.

But he declined to fully endorse the Brown-Vance rail safety bill, saying he supported parts, but not all, of it.

Pressed by Minnesota Democratic Sen. Amy Klobuchar to say which parts he did not support, Shaw began to say what he did agree with. Klobuchar said she would seek a more complete answer in writing.

Appearing remotely from the East Palestine High School library, Republican Ohio Gov. Mike DeWine, thanked the bill sponsors and called for swift congressional action. 

He also demanded Norfolk Southern make the community whole.

“Norfolk Southern has an obligation to restore this community,” DeWine said. “It was their training, their tracks, their accident. They’re responsible for this tragedy … Norfolk Southern must do everything in its power to put everything back as it was in East Palestine.” 

Workforce and profits

The Brown-Vance bill would require two-worker crews on certain trains, which would force railroads to hire workers after deep labor cuts in recent years. The industry cut its workforce by 22% between 2017 and 2021, Cantwell said. 

The industry has also cut its training program, Whitaker said. When he started as a railroad worker in 2000, he had 26 weeks of training. Now, the standard is six weeks, he said.

“We’re hauling 200-plus-car trains of hazardous materials,” he said. “That’s not right. You’re putting too much pressure on employees right now with inadequate training.”

Whitaker also said he supported a rule to mandate at least two workers were on each train. That rule has been opposed by the rail industry.

A few Democrats on the panel criticized the rail industry for offering stock buybacks instead of investing in safety. 

 Sen. Peter Welch of Vermont pressed Shaw to suspend stock buybacks until the railroads finished their cleanup work in East Palestine.

Shaw declined, saying “stock buybacks never come at the expense of safety.” The railroad spends about $1 billion per year on safety programs, he said.

Schumer renews call for NTSB probe

In a floor speech Wednesday, Senate Majority Leader Chuck Schumer renewed his request for an NTSB investigation into the safety culture of all major U.S. railroads and said he hoped Homendy would commit to such an investigation during the hearing.

No senator directly asked Homendy about that possibility, and she did not commit to an industry-wide investigation.