NTSB says Norfolk Southern threatened agency during derailment probe

Site of the derailment of a train carrying hazardous waste, in East Palestine, Ohio

By David Shepardson

WASHINGTON (Reuters) -The chair of the National Transportation Safety Board said Norfolk Southern threatened the board, sought to manufacture evidence and failed to provide documents during its investigation of a 2023 Ohio derailment.

NTSB Chair Jennifer Homendy said in extraordinary remarks the rail carrier "delayed or failed to provide critical investigative information to our team," prompting her to warn it twice the agency would issue subpoenas to compel disclosure. She described the company's actions as "unconscionable" and "reprehensible."

The NTSB also found on Tuesday that Norfolk Southern and its contractors did not need to vent and burn hazardous materials from tank cars after a February 2023 train derailment in East Palestine, Ohio that it said was caused by a defective wheel bearing.

The derailment forced residents to temporarily abandon their homes after the train caught fire and released over 1 million gallons of hazardous materials and pollutants near the state's border with Pennsylvania.

Norfolk Southern said in a statement that it had cooperated "fully and ethically" with the NTSB investigation at all times, with full transparency.

"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," the company said.

Last month, Norfolk Southern agreed to pay a $15 million civil penalty and $57.1 million in past government cleanup costs, as well as millions in future costs to resolve a U.S. government lawsuit.

Homendy listed a series of actions during the investigation by the railroad she called unethical or inappropriate, including Norfolk Southern retaining a private company to conduct testing of off-the-shelf vinyl chloride for inclusion in the NTSB record.

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.

She said during NTSB meetings this month, a senior Norfolk Southern executive urged the NTSB to "put to rest the 'rumor' that Norfolk Southern made the decision to vent and burn to move trains," calling the railroad's request "unethical and inappropriate."

She added "the entire exchange ended with what everyone from the NTSB heard in the room was a threat and it was delivered that way." She also said the railroad had invited the five board members to visit on Monday - the day before the meeting - and that would "have constituted a violation of our ethics standards."

'DISREGARDED EVIDENCE'

The NTSB said a key decision by Norfolk Southern and its contractors to seek approval from the unified incident commander to vent and burn hazardous materials from five tank cars was unnecessary after they "misinterpreted and disregarded evidence" and an alternative option to allow the cars to cool was overlooked.

The NTSB staff also said Norfolk Southern and its contractors withheld "complete and accurate expert opinions and information."

Norfolk Southern said the company 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," adding the decision was to "protect the community from a potential catastrophic explosion."

The company said the NTSB mischaracterized the basis of the recommendation and rejected the contention it withheld views from the incident commander. Last week, the railroad said it would convene a vent and burn workgroup to assess current practices and existing protocols.

NTSB recommended the Federal Railroad Administration set new safety regulations for inspections and maintenance of heat bearing detectors, also called box detectors or wayside detectors. The devices identify potential train safety issues by measuring temperature as they pass.

The NTSB also wants U.S. Department of Transportation to establish a replacement schedule to stop the use of tank cars like some in the Ohio derailment and replace them with newer, safer tank cars with thicker tank walls and thermal protection.

CONSENT DECREE

Under a proposed consent decree estimated to be worth more than $310 million, the railroad also agreed to significant safety improvements and training, which includes installing additional devices to detect overheated wheel bearings early enough to prevent derailments. Norfolk Southern said under the agreement it will spend $244 million on safety initiatives through 2025.

The incident sparked public outrage and calls for railroad safety reforms in Congress but legislation has stalled. Some lawmakers had said they wanted to wait for the NTSB's report before acting on safety changes.

Norfolk Southern, which did not admit wrongdoing, said last month that the deal means the company will face no criminal penalties and the settlement is included in the around $1.7 billion in related charges to date for the incident.

In April, Norfolk Southern agreed to pay $600 million to settle a class action lawsuit over the derailment. The settlement covers personal injury claims from residents and businesses in the city and impacted surrounding communities.

(Reporting by David Shepardson; Editing by Nick Zieminski, Aurora Ellis and Jamie Freed)