This story by Bill Stephens originally appeared on Trains.com.
EAST PALESTINE, Ohio — National Transportation Safety Board Chair Jennifer Homendy sharply criticized Norfolk Southern Tuesday 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 that 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’ 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 any entity to impugn that reputation or malign the reputation of our investigative staff — our top-notch investigative staff — which is exactly what the aim was.”