Freight railroads were issued a one-two punch from the federal government on Tuesday, with the Environmental Protection Agency holding Norfolk Southern legally responsible for cleanup costs for the Ohio train derailment earlier this month and the Department of Transportation issuing a laundry list of safety-related actions to tackle.
Both actions are in response to the Feb. 3 derailment of an NS train near the Pennsylvania border at East Palestine, Ohio. According to the National Transportation Safety Board, 38 cars derailed, with an ensuing fire occurring on an additional 12 cars. Of the 20 total cars carrying hazardous materials on the train, 11 derailed. Although the cause is still pending, NTSB investigators are looking into whether an overheated wheel bearing may have contributed to the derailment.
The EPA has given NS (NYSE: NSC) a legally binding order to “conduct all necessary actions associated with the cleanup” of the train derailment site.
As part of the order, NS must identify and clean up contaminated soil and water resources, reimburse the EPA for cleaning services and agency-related costs associated with the order and participate in EPA-sponsored meetings and incident-related information online.
The EPA will also approve a work plan that outlines cleanup actions, and if NS fails to comply, will conduct the work and compel the railroad to pay triple the costs.
The order marks the transition from a multiagency response in an emergency phase to a longer-term remediation phase, EPA said Tuesday. The coordination of cleanup efforts among NS, EPA and Ohio and Pennsylvania agencies is similar to one deployed in past situations.
“Let me be clear: Norfolk Southern will pay for cleaning up the mess they created and for the trauma they’ve inflicted on this community. I’m deeply grateful to the emergency responders, including EPA personnel, who’ve been on the ground since day one and ensured there was no loss of life as a result of this disaster,” EPA Administrator Michael S. Regan said. “As we transition from emergency response, EPA will continue to coordinate closely with our local, state, and federal partners through a whole-of-government approach to support the East Palestine community during the remediation phase. To the people of East Palestine, EPA stands with you now and for as long as it may take.”
NS said Tuesday that it has excavated an estimated 4,500 cubic yards of contaminated soil and 1.1 million gallons of contaminated water from the derailment site. It has also placed a series of pumps to reroute Sulphur Run, a local stream, around the derailment site; environmental teams are treating impacted portions of Sulphur Run and collecting soil and groundwater samples that could help in creating a remediation plan if needed.
“We recognize that we have a responsibility, and we have committed to doing what’s right for the residents of East Palestine. We have been paying for the clean-up activities to date and will continue to do so. We are committed to thoroughly and safely cleaning the site, and we are reimbursing residents for the disruption this has caused in their lives,” NS said. “We are investing in helping East Palestine thrive for the long-term, and we will continue to be in the community for as long as it takes. We are going to learn from this terrible accident and work with regulators and elected officials to improve railroad safety.”
DOT wants railroads to take immediate actions to address safety
The DOT on Tuesday announced 15 actions that railroad companies, the Federal Railroad Administration and associated federal agencies, and Congress can take to address rail safety. Many of the actions are those that have been advocated by labor and labor supporters.
“Profit and expediency must never outweigh the safety of the American people,” DOT Secretary Pete Buttigieg said in a Tuesday news release. “We at USDOT are doing everything in our power to improve rail safety, and we insist that the rail industry do the same — while inviting Congress to work with us to raise the bar.”
The announcement said: “USDOT is committed to using the full range of our authority, as well as the funding available to us from the Bipartisan Infrastructure Law, to improve safety on our railroads. Achieving the highest level of rail safety will also require active and continued partnership from Congress. And rail companies must also take urgent, dedicated action that includes not just complying with current standards but decisively putting the long-term safety of workers and communities ahead of short-term opportunities to supercharge profits.”
The agency is asking the Class I railroads to:
- Join FRA’s program that enables workers to anonymously report potentially unsafe working conditions.
- “Deploy new inspection technologies without seeking permission to abandon human inspections.” This includes technology such as automated track inspection.
- Phase in DOT-117 tank cars ahead of the congressionally mandated 2029 deadline.
- Provide advanced notification to state emergency response teams whenever hazardous gas tank cars pass through their states.
- Provide paid sick leave.
DOT also said it would:
- Continue to work on moving forward with a proposed rule advocating for train crew sizes consisting of two or more workers.
- Initiate two inspection programs, one focused on routes that have large amounts of hazardous material traveling or are used by high-hazard flammable trains and another that focuses on legacy tank cars.
- Pursue rulemakings on high-hazard flammable trains and electronically controlled pneumatic brakes.
- Encourage projects to participate in DOT grant funding programs that address modernizing and improving rail infrastructure, the elimination of grade crossings and rail safety improvements.
DOT also said Congress should consider raising fines for safety violations, supporting efforts to speed up the complete phase-in of DOT-117 tank cars, modernize braking systems and address safety concerns related to high-hazardous shipments, among other points.
The agency’s announcement comes as Buttigieg hinted over the weekend that more safety regulations could be underway for the freight railroads.
In response to DOT’s announcement, the Association of American Railroads said discussion about safety regulations should flow from NTSB’s investigation, not broader speculations about what conditions might have contributed to the derailment.
“No community should ever face the events of February 3rd. This is why railroads are steadfastly committed to solutions-oriented steps that directly address the cause of the accident and could prevent a similar accident from occurring elsewhere,” AAR President Ian Jefferies said in a Tuesday statement.
But NTSB’s “investigation must continue unimpeded by politics and speculation so NTSB’s findings can guide what additional measures may have prevented this accident. All stakeholders — railroads along with federal, state and local officials — must work to restore the public’s trust in the safety and security of our communities. We can only do that by letting the facts drive the post-accident response. At this time, the focus must be on the most pressing issue at hand — ensuring the community of East Palestine has all the support they need as it moves forward,” Jefferies said.
Meanwhile, Democrats serving on the U.S. House Committee on Transportation and Infrastructure praised the DOT’s plan.
“Americans deserve to know that safety comes first on our nation’s railroads,” said Rep. Rick Larsen, D-Wash., who serves as ranking member of the committee. “The Rail Safety Action Plan released by Secretary Buttigieg is a good first step. I look forward to working on solutions in the weeks to come that deliver real improvements to our system including providing the Department of Transportation with stronger tools to penalize bad actors, updating the rules governing the transport of hazardous materials, and supporting the hardworking railroad workers who keep our economy running.”
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