Norfolk Southern CEO Alan Shaw returned to Capitol Hill Wednesday facing pressure to support rail safety legislation proposed in the wake of his railroad’s massive toxic spill from a February 3 derailment in East Palestine, Ohio.
Although Shaw’s prepared testimony released in advance of the hearing promised to take steps to improve rail safety – it uses the term “safety” more than two dozen times – he stops short of endorsing the legislation in its entirely. The bill includes provisions, such as two-person crews on every railroad locomotive and a strict requirement for more frequent trackside monitoring devices meant to detect problems before a derailment occurs.
“We support legislative efforts to enhance the safety of the freight rail industry,” was the only discussion of the legislation in his prepared remarks.
Shaw said the railroad would support increasing fines and penalties for people found tampering with railroad facilities and safety equipment, without endorsing proposals for potential fines on railroads found guilty of safety violations.
Shaw also voiced support for more industry-funded training for first responders. And he said the company supports “the principle that first responders need accurate real-time information on the contents of trains moving through their communities.” He proposed that information be made available through an industry-created app.
But that level of support isn’t enough to satisfy supporters of the Senate version of the bill, including Sen. J.D. Vance, an Ohio Republican and one of its co-sponsors, or Republican Mike DeWine, Ohio’s governor. They said residents who live near freight rail tracks can’t depend on the railroad’s voluntary measures to improve safety.
“It is absurd that there are no notification requirements for trains carrying hundreds of thousands of pounds of flammable gases under pressure,” said Vance in his own prepared remarks. “The railroads claim they have an app. There is an app! In their telling, there is no need for a federal requirement, because the railroads have an app, another voluntary standard.”
Vance said such an app can be of little use in rural areas with sketchy internet service.
Vance said it is important to raise the maximum fine for rail safety violations from the current limit of $225,455.
“This is a multi-billion-dollar industry, and fines must be a sufficient deterrent to lax safety behavior,” he said in prepared remarks.
When asked during by Sen. Amy Klobuchar during questioning if he supported the bill, Shaw responded, “There are many provisions within the Vance-Brown bill for which we give our full throated endorsement.” But when Klobuchar tried to pin him down on which provisions Norfolk Southern opposed, he dodged the question.
Vance moved away from his prepared remarks to attack the railroads’ lobbying against the bill. He was particularly angry that the railroads’ attacks on the bill come just months after they went to Congress to get it to block a potential strike by their unionized employees.
“You can not on the one hand beg the government to bail you out of a labor dispute three months ago, and then say it’s big government to have proper safety standards in the way that you conduct your railroads,” said Vance. “It’s a ridiculous argument. It doesn’t pass the smell test. The fact that they advanced that argument in their Op-Eds and their paid for activism is insulting to the people of East Palestine.”
The committee also heard from an East Palestine resident, Misti Allison, who gave a human face to the damage done to the town by the accident, saying that Norfolk Southern is offering “breadcrumbs” to residents affected the accident.
“My seven year old has asked me if he is going to die from living in his own home. What do I tell him?” she asked. “This preventable accident has put a scarlet letter on our town. People don’t want to come here. Businesses are struggling, our home values are plummeting. Even if we wanted to leave, we couldn’t sell our homes.”
Shaw announced plans Wednesday for the railroad to compensate homeowners who lose value in their homes, although did not give details of those payments in his opening remarks. Still, it was further than the railroad had gone previously to compensate homeowners who may see their home values permanently affected. Allison’s comments, which came before Shaw’s testimony, showed there are concerns in East Palestine about its ability to recover from the effects of the derailment.
“This is about a community that no one had ever heard of before, becoming ground zero and a small town being destroyed overnight,” she said.
The railroads have proposed to have only a lone engineer on each train. Instead of being in the cab of the locomotive, the second crew member, the conductor, would be driving trucks along railroad tracks between trains to check on potential problems.
A two-person crew is currently mandated by the railroads’ labor contract with the transportation division of the Sheet Metal, Air, Rail and Transportation union (SMART-TD), which represents the conductors, and the Brotherhood of Locomotive Engineers and Trainmen. Current federal law does not require two-peson crews, but the safety legislation and a proposed federal regulation would both require two-person crews.
“The railroads… want you to believe that technology is capable of replacing the role of the conductor,” said Clyde Whitaker, the Ohio legislative director of SMART-TD. “Nothing can be further from the truth.”
When asked about the proposal to require two person crews, Shaw responded, “I’m not aware of any data that links crew size to safety.”
That answer brought an attack from Massachusetts Democrat Edward Markey.
“I think you’re not answering the question,” said Markey. “Two person crews make our trains safer. I wish you would commit to that today, because I think that it’s pretty obvious that is the correct answer. I get sick of industry executives talking about supporting about the principal of regulation while they lobby against common sense regulations like this one behind the scenes.”
The Association of American Railroads, which is also set to testify Wednesday, is on the record opposing the two-person crew requirement.
DeWine and Ohio Lt. Gov. Jon Husted sent a letter to Shaw Tuesday that called out the railroad for not supporting measures like the two-person crew requirement and a requirement to have trackside detection equipment no more than 15 miles apart from one another.
“We… expect you will deliver for the people of East Palestine by fully supporting these legislative efforts until they are enacted,” said DeWine’s and Husted’s letter.
SMART-TD’s Whitaker also said that the union has filed complaints that Norfolk Southern was giving instructions to crews to disregard when trackside detectors reported problems and to keep their trains moving to improve profitability.
And Vance pointed out that one of the detectors that the Norfolk train passed before the East Palestine derailment detected more than a 100-degree rise in temperature of one of the rail cars on which a fire had started, but that was not enough to trigger a warning to the crew. By the time a subsequent detector found a more than 200-degree rise in temperature that triggered the alarm, it was too late to stop the train in time to prevent the derailment.
“We need to figure out at what sensor reading these trains need to stop, and it’s clear that the voluntary guidelines are too lax,” Vance’s said in his prepared remarks.
Among the criticism that Norfolk Southern faced in the hearing was when it was revealed that it quickly put one of the locomotives that had been pulling the train back into service after the incident.
One of the witnesses, Jennifer Homendy, chair of the National Transportation Safety Board which is conducting an ongoing investigation of the derailment, said that meant that some of the video that had been recorded inside the cab of the locomotive during its trip was recorded over before it could be preserved by the agency. The 15 minutes of video from just before, during and immediately after are still available, according to Shaw’s testimony.
“I have to admit, hearing that, Senator Cantwell and I looked at each other and thought that was a bizarre thing to hear,” said Sen. Ted Cruz, the ranking Republican on the committee, referring to committee chair Maria Cantwell, a Democrat. When Shaw said the railroad followed protocol concerning the video and putting the locomotive back into service, Cruz wasn’t satisfied with the answer.
“It is lunacy, that that video is not preserved and that locomotive is put into alternative service, so that I feel confident we could get unanimity on this on this committee on that,” Cruz said.