On Jun. 25, the National Transportation Safety Board (NTSB) held a public meeting to vote on the final findings, probable cause, and recommendations that follow from its investigation of the Feb. 3, 2023, train derailment in East Palestine, Ohio. The full video of the more than seven-hour meeting is available here. The final report will be released in the coming weeks, but the NTSB has, in the interim, released a summary of its findings and non-binding recommendations.
The NTSB’s findings and recommendations suggest that immediate federal legislative proposals on the East Palestine derailment—most notably the Railway Safety Act of 2023—missed the mark. Indeed, passing this bill as-is would violate a key NTSB recommendation that calls for research into wayside hot bearing detectors prior to proposing any new regulation. To most effectively promote rail safety, lawmakers should heed the call of the NTSB’s experts that any new regulation be justified by careful analysis of the evidence.
Summary of the East Palestine Incident
On the evening of Feb. 3, 2023, a Norfolk Southern Railway train derailed 38 railcars in East Palestine, Ohio. Three railcars carrying flammable and combustible material were punctured during the derailment. The derailment also caused a fire, which began burning the hazardous material leaking from those three tank cars. As the fire engulfed other derailed railcars, emergency responders established a one-mile evacuation radius that impacted approximately 2,000 residents.
The following day, Norfolk Southern incident response contractors expressed concern that a dangerous chemical reaction was taking place inside an unpunctured railcar carrying vinyl chloride monomer (VCM) that had been exposed to the post-derailment fire. Based on the fear that this polymerization would lead to an explosion, the decision was made to conduct a “vent and burn” of five VCM tank cars. This procedure involved digging containment ditches adjacent to the railcars, using small explosives to puncture and drain the tank cars, and then igniting the VCM.
The evacuation zone was expanded to minimize exposure to fumes from the controlled burn. The vent-and-burn operation was conducted by a Norfolk Southern contractor in the afternoon of Feb. 4, less than 24 hours after the derailment. The East Palestine derailment and incident response resulted in no reported fatalities or injuries. No evidence of long-term ecological or health impacts has been found, although precautionary environmental and public health monitoring remains ongoing.
Key Findings of the NTSB’s Investigation
The probable cause of the Norfolk Southern train derailment in East Palestine was an overheated wheel bearing that failed, which caused the axle of a railcar to separate and send the front truck of the railcar off the track. The NTSB could not find sufficient evidence that improper inspection failed to identify signs of fatigue. It did, however, find that wayside bearing defect detectors did not accurately reflect the true temperature of the failing bearing, thereby providing insufficient notice to the train crew to bring the train to a halt to avoid a derailment.
With respect to the probable cause of the derailment—the overheated wheel bearing—and the failure to adequately warn the crew via the wayside hot bearing detectors and alarms, the NTSB found:
Research will be necessary to determine whether changes to wayside bearing defect detection systems—such as lower alert and alarm thresholds—would produce a significant safety improvement. Research is also necessary to determine what operational responses to bearing alerts and alarms are sufficient to prevent derailments. (Emphasis added)
In this finding, NTSB concedes it lacks information to make specific findings or recommendations on hot bearing detector installation, inspection, maintenance, and performance. Importantly, this implies technical, risk, and cost-benefit analyses must be conducted before “determin[ing] whether changes to wayside bearing defect detection systems… would produce a significant safety improvement” and thereby justify a potential regulatory intervention.
Regarding the decision to conduct the vent-and-burn operation with the VCM tank cars, the NTSB found there was no imminent danger of a high-hazard explosion justifying this emergency procedure. Further, the agency found that Norfolk Southern and its contractors continued to assert the necessity to immediately vent and burn the VCM even after it should have known this operation was unnecessary. Norfolk Southern disputes this finding, claiming it is contradicted by safety recommendations supplied by the VCM manufacturer itself.
The source of this dispute may be a safety pamphlet from the Chlorine Institute, which the NTSB argues “overstates the probability of [VCM] polymerization in scenarios where tank cars remain intact, likely leading those using the pamphlet during an emergency response effort to overestimate the likelihood of polymerization” and, in this case, a dangerous explosion. But if this is the basis of the dispute, it is unclear why the NTSB seems to believe that a rail carrier—required by federal regulation to carry and prioritize the movement of hazardous chemicals—should act in a manner that contradicts the safe-handling information provided by the chemical industry.
In addition, the NTSB final report also highlights what did not contribute to the derailment, including:
- Defects in railroad track or other infrastructure;
- Defects or misuse of signals or the train control system;
- Improper train crew handling and response to the hot bearing alarm and derailment;
- Improper marking, placarding, and method of loading for the derailed VCM tank cars;
- Improper weight and cargo volume of the derailed tank cars; and
- The crashworthiness of the derailed VCM tank cars.
The NTSB’s Logical Missteps from Findings to Recommendations
As noted above, the key NTSB finding on wayside bearing defect detectors—which have been installed, operated, and maintained voluntarily by the railroad industry for generations—is that more research is “necessary to determine whether changes to wayside bearing defect detection systems… would produce a significant safety improvement.”
One would naturally read this to mean that careful technical, risk, and cost-benefit analyses must be conducted before deciding that there is a need for a regulatory intervention, let alone a positive finding that a particular intervention will yield safety benefits that exceed the costs.
However, while the NTSB’s core finding adopts a prudent evidence-based approach, the agency then contradicts itself by finding that “[r]egulatory requirements for the installation, inspection, and maintenance of wayside bearing defect detectors would protect the reliability of these devices and improve the safety of railroad operations” (emphasis added). Here, NTSB starts from a premise that research is necessary to determine if changes in the way hot bearing detectors are installed, operated, and maintained may produce safety benefits and then jumps immediately to a conclusion that regulations would produce safety benefits.
This basic logical error creates a disconnect between the findings—where the NTSB correctly concedes evidence is lacking, and more research is needed to identify specific changes to the way defect detectors are deployed—and the recommendations that the Federal Railroad Administration (FRA):
- “Use the results of the research… to develop and establish minimum requirements for bearing defect detection systems, including criteria for bearing alert and alarm thresholds and maximum distances between wayside detectors.”
- “Establish requirements for the installation, inspection, and maintenance of wayside bearing defect detectors to protect the reliability of these devices and improve the safety of railroad operations.”
- “Use the results of the research… to develop and establish rules governing railroads’ operational responses to bearing alerts and alarms.”
Despite the NTSB’s conclusory recommendations on bearing defect detectors, the agency does presume that any eventual regulation will be preceded and informed by robust research on the effectiveness of current hot bearing detection systems and potential alternatives.
Pending Legislation Violates the NTSB’s Recommendations or Is Nonresponsive
In the immediate aftermath of the East Palestine derailment and vent-and-burn decision, national press and politicians descended on the scene. Video footage captured the vent-and-burn flaming plume of smoke near a residential neighborhood, which certainly caused some understandable anxiety among viewers even though the incident resulted in no injuries or deaths. One consequence of this public attention was the introduction of the Railway Safety Act of 2023 (S. 576/H.R. 1674) in the Senate less than a month after the East Palestine derailment and about a week after the NTSB released its preliminary report on Feb. 23, 2023.
Although its sponsors claimed it was drafted in response to the East Palestine derailment, I pointed out at the time that it was a hasty mashup of previous legislative proposals that could not be plausibly connected to the accident. Now that the NTSB has released its final findings and recommendations, we can examine the eight main provisions of the Railway Safety Act to see if they are responsive and appropriate as the bill’s supports claim:
- Mandates the use of defect detection technology which could have prevented the East Palestine derailment, making them more frequent near dense urban areas: The bill mandates the installation of bearing defect detectors every 10, 15, or 20 miles depending on population density and complimentary wayside equipment characteristics. This provision plainly violates the NTSB recommendation to first conduct a thorough study of defect detection technologies and use before mandating any changes.
- Expands the types of hazardous materials, like the vinyl chloride carried by the East Palestine train, that trigger increased safety regulations, including speed restrictions, better braking, and route risk analysis: This provision is nonresponsive to the NTSB’s findings or recommendations because the NTSB found that cargo and operational characteristics such as train speed played no role in the derailment and subsequent release of hazardous materials.
- Improves emergency response by providing states information about the hazardous materials being transported by rail through their communities and strengthening railroad emergency response plans: The part of the provision on notification is moot because the Pipeline and Hazardous Materials Safety Administration recently promulgated a final rule to require railroads that carry hazardous materials to generate, maintain and provide to parties involved in emergency response the information needed to enhance emergency response and investigation. The NTSB considers this matter closed. The part of the provision requiring the federal government to take over certain responsibilities from local first responders was not recommended by the NTSB.
- Prevents 30-second railcar inspections and mandates a new requirement that ensures railcars are properly maintained: The NTSB found “[t]here was not enough evidence to determine whether a mechanical inspection conducted before the derailment failed to identify signs of bearing failure; the bearing may not have been showing visible problems at the time of the inspection,” so this provision is nonresponsive.
- Increases penalties for violations of rail safety law to ensure safety laws are taken seriously: This provision increases maximum civil penalties to $10 million. However, Norfolk Southern reached a $310 million settlement with the federal government, including a $15 million civil penalty. In addition, Norfolk Southern agreed to pay another $600 million in compensation to settle class action lawsuits tied to the incident and response. Thus, real-world events have proven this provision to be wholly unnecessary.
- Requires two crewmembers to operate a train to prevent a situation where only one person is on the train in an emergency: This provision is entirely nonresponsive to the NTSB’s findings or recommendations because the train involved had a crew of three at the time of derailment and the NTSB explicitly found that crew handing played no role in the derailment or broader incident. And as I have pointed out to the Federal Railroad Administration, there is no evidence that two-person crews are safer than single-person crews (or vice versa), which the FRA itself has conceded.
- Ensures firefighters are made whole after responding to major derailments: This provision was mooted by subsequent legal settlements, as well as being nonresponsive to the NTSB’s findings.
- Expands the existing Hazardous Materials Emergency Preparedness grant to allow fire departments to purchase the personal protective gear that keeps them safe: This provision isn’t responsive to the NTSB’s findings or recommendations but could be defended (or opposed) independent of the East Palestine derailment.
The Railway Safety Act clearly is not a coherent policy response to the East Palestine derailment specifically or to rail safety concerns more broadly. Both the Senate and the House have to date chosen wisely not to pass this poorly written bill.
Conclusion
The investigation by the National Transportation Safety Board should help focus discussions about rail safety in Washington. The agency’s findings suggest that a major legislative response from Congress is not needed to advance rail safety, which is bolstered by past empirical scholarship finding that rail safety regulations do little to promote safer outcomes.
Congress should, however, conduct careful oversight of various regulators at the U.S. Department of Transportation to ensure any new regulatory requirements proposed in response to the East Palestine incident are determined by a careful assessment of the evidence through robust technical, risk, and cost-benefit analyses. They must also keep in mind that rules with high costs and little benefit may make our transportation system less safe if rail traffic is diverted onto the highways, where truck accident fatality rates are six times greater than rail’s, and injury rates are 17 times higher.
While the impulse to “do something” can be powerful for even the most experienced officials in Washington, DC, the best policy is developed when evidence is carefully considered by judicious policymakers. Truly advancing rail safety requires clear thinking to trump political posturing.