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The Problem with Deregulation: Toxic Water, Elusive Policy, and over 1000 Railroad Disasters

Residents of East Palestine, Ohio, have continued to live in panic due to the “controlled release” of hazardous, cancer-causing chemicals from the railcars involved in the Feb. 3 Norfolk Southern train derailment.

Norfolk Southern's controlled burn in East Palestine, OH releases a giant black plume into the skies over Ohio and Pennsylvania.

Gene J. Puskar / AP

In response to the Norfolk Southern Railway train containing numerous toxic chemicals, on Feb. 6, officials recklessly opted to do a controlled burn of the cars to release the chemicals in a “managed” way to avoid a catastrophic explosion that would have sent debris into residential areas and potentially caused an uncontrolled spread of the toxins.

Well, the controlled release only exacerbated the situation by worsening public health and environmental conditions transforming East Palestine into baby Chernobyl.

Many Norfolk Southern employees signaled that the size of the train made it susceptible to the derailment, but their concerns were ignored.

The 18,000-ton train consisted of three locomotives, and 151 cars, with 50 of those cars derailing, 11 of which contained hazardous materials. Five of the cars contained vinyl chloride, a known carcinogen used to make PVC pipe, which produces hydrogen chloride and phosgene as a byproduct when burned.

When hydrogen chloride dissolves in water, it forms hydrochloric acid (a component of acid rain) and phosgene which is an agent of chemical warfare used in World War I.

Residents in Ohio who lived in the vicinity of the controlled burn were advised to leave the area or risk their lives.

On Feb. 14, officials encouraged the safe return of locals back to their homes but admonished them to only drink bottled water until testing could confirm whether the local water supply was safe to drink.

This advice was confusing for many residents. It’s either safe or it isn’t safe. If you can’t drink water, then you probably can’t cook or shower with it either.

A new federal lawsuit against Norfolk Southern over the massive train derailment here alleges that a total of 1.1 million pounds of vinyl chloride were released into the environment.

The lawsuit filed last Wednesday by law firm Morgan & Morgan in U.S. District Court's Northern District of Ohio is one of six suits the railroad company is facing after the derailment.

Norfolk Southern spent $4 billion on stock buybacks last year yet has only offered a $1 million fund for Ohio train-derailment victims, $1.7 million in direct assistance to 1100 families, which is only about $1500 per family, and doesn't even cover the town's 4,700 people.

Oh, and they topped it off with a $25,000 donation to the Red Cross.

The people of East Palestine must be so grateful.

Corporate profit maximization is part of the root cause of this issue, and it's not just the stock buybacks.

What is Precision Scheduled Railroading? Why Does it Matter?

Norfolk Southern, like other railroad companies, follows a practice called precision schedule railroading (PSR) which allows trains to operate on fixed schedules instead of being dispatched whenever a sufficient number of loaded cars are available.

This process dramatically reduces business costs and maximizes profits, but ignores the training, maintenance, and routine inspection necessary to prevent these types of derailments. PSR maximizes the use of trains by individual carload, which has led to longer, heavier trains which increases operational efficiency and maximizes shareholder returns, but endangers millions of Americans living in industrial cities where such Godzilla-like trains pass through.

Transportation experts have long been sounding the alarm on these mega trains, but nobody pays attention until there’s a disaster.

In an interview with USA Today, Karl Ziebarth, a longtime transportation consultant who has contracted for the Federal Railroad Administration shared his thoughts on the matter. "If you have a very small error of some sort, most often a mechanical failure, you can all of a sudden have a very expensive derailment.”

"All of these things (industry trends) together show the pursuit of lower operating ratio (or costs) may spin off in other directions and cause catastrophic failures," Ziebarth added.

Hypocrisy of Norfolk Southern’s Stance on ECP Brakes & Safety

Norfolk Southern helped kill a federal safety rule aimed at upgrading the rail industry’s Civil War-era braking systems. Regulators reversed the rule that mandated rail cars carrying dangerous combustible materials be outfitted with electronic brakes, which are termed Electronically Controlled Pneumatic (ECP) brakes.

This system has been previously highlighted by Norfolk Southern for its capacity in decreasing train deceleration by up to 60% compared to traditional air brake systems.

In spite of this, the organization's lobbyist duty group urged for the directive's revocation, informing officials that it would “impose tremendous costs without providing offsetting safety benefits.”

“Would ECP brakes have reduced the severity of this accident? Yes,” Steven Ditmeyer, a former senior official at the Federal Railroad Administration (FRA), told The Lever. “The railroads will test new features. But once they are told they have to do it… they don’t want to spend the money.”

The majority of the country's trains still use the same braking system that was invented back in 1868. Trains with these conventional air brakes take longer to halt and result in increased destruction when compared to those with ECP brakes, a consensus echoed by both safety advocates and the Federal Railroad Administration.

As air pressure is transmitted in sequence from car to car when air brakes are activated, the speed with which an entire train can be stopped is much more expeditious when using an Electronic Control Performance (ECP) brake system, which works on the basis of an electronic signal.

At the start of the 21st century, federal railway regulators began urging the rail sector to switch to electronic brakes, which would reduce the time to stop. Following a technical report by the FRA in 2006, which found that ECP could significantly boost rail safety and efficiency, the agency declared its position of promoting the usage of the technology on a large scale.

In the beginning, railroad companies such as Norfolk Southern were vocal supporters of the usage of electronic brakes. They argued that these brakes were so reliable that regulatory entities had grounds to grant exemptions from other safety requirements for trains with the upgrades, leading to increased efficiency through decreased stops for safety checks.

At a 2007 hearing with the Federal Railroad Administration, Donald Usak, who serves as Norfolk Southern's engineering manager, declared that the newly implemented systems had a tremendous advantage when it came to initiating emergency braking.

“We all know the saying, ‘as fast as the speed of light,’” Usak said. “So does electricity travel at the speed of light. Signals from the engineer are at the rear of the train instantly. Signals initiated at any one of the vehicles in the train are throughout that train instantly.”

At the end of the year, Norfolk Southern proudly informed their investors that they had accomplished a feat of railway engineering by fitting one of their trains with the ECP technology and intended to extend the safety measure to 30 more of their trains in the following months. This was referred to as "making railroad history".

However, when regulators imposed the requirement for upgrades in 2014, the industry had a sudden shift in attitude.

In 2012-2013, a number of incidents involving railcars with hazardous materials occurred like one 2013 train derailment causing a dozen oil tanker rail cars to burst into flames resulting in a series of five explosions in North Dakota. In 2012, a train derailment in New Jersey released 23,000 gallons of the same toxic vinyl chloride gas in East Palestine now. We can’t forget about the summer 2013 Lac Megantic derailment which massacred 47 people in a small town inside of Quebec.

As a response, federal agencies in Canada and the U.S. began to make some changes. The department of transportation in Canada, Transport Canada, cracked down on the poor regulation policies that caused the incident. In the weeks and months after the incident, Transport Minister Lisa Raitt hired more inspectors, increased safety audits, and increased transparency between municipalities and rail companies.

After a federal investigation, the Transportation Ministry of Canada found that the rail company involved, MMA, had a weak safety culture with inadequate testing, monitoring, and transport procedures. Therefore, rail companies found not in compliance with new safety standards received penalties for failing to implement proper safety management systems.

Since the U.S. dealt with similar derailment catastrophes around the same time, the Pipeline and Hazardous Materials Safety Administration proposed a regulation to retrofit these cars with safety features, such as ECP brakes, over nine years. This regulation also proposed speed limits on these cars and required tests to determine the volatility of the substances they were transporting.

The railroad, oil, and chemical businesses vocally opposed the regulation, claiming it would be disruptive and financially burdensome. The American Association of Railroads (AAR) -- a lobbying group to which Norfolk Southern has been a dues-paying member for a while -- was especially hostile to the ECP braking standards.

The Association of American Railroads (AAR) has emphatically expressed its disagreement with the requirement to use ECP brakes, in a comment letter on the rule. According to the AAR, the cost of ECP brakes would far outweigh any potential benefit, and to this day industry has not been able to identify any business advantages that would make the switch from traditional brakes to ECP brakes worthwhile.

During the rule-making process, Norfolk Southern expressed concerns in their lobbying efforts against the necessity of ECP brakes. In 2015, the company's vice president Rudy Husband testified to Pennsylvania lawmakers that the rail industry was worried about the effects of the ECP brake requirements on the “fluidity” of the national freight rail network, although they would still be following the new rule.

In 2018, the Association of American Railroads and Norfolk Southern spent millions of dollars lobbying to reverse the ECP brake safety rule, and they succeeded.

U.S. Transportation Secretary Pete Buttigieg has failed miserably in this most recent fiasco by waiting 20 days after the derailment to visit.

U.S. Transportation Secretary Pete Buttigieg has failed miserably in this most recent fiasco by waiting 20 days after the derailment to visit. National Transportation Safety Board (NTSB) which is expected to issue its investigation’s initial findings on Thursday.

Buttigieg has been on the receiving end of non-stop criticism for the last couple of weeks because of their lethargic response.

This Thursday, Buttigieg is expected to meet with community members impacted by the derailment, who hopefully will not hold back.

He’s only become critical of Norfolk Southern over recent days as he gestures in the direction of stronger safety regulations.

Between the NTSB, DoT, and EPA, these agencies should be able to swiftly determine the proper course of action to provide justice to the people of East Palestine and implement stronger rail safety standards to mitigate these derailments in the future.

There Are Over 1,000 Train Derailments Every Year

It’s important to know that derailments themselves aren't entirely uncommon, but toxic spills are relatively rare. According to the U.S. Department of Transportation Federal Railroad Administration, there are around 1,000 derailments each year since 2019.

Surprisingly, not all 1,000 are Norfolk Southern, although they had another non-lethal derailment in Van Buren Township, Michigan about thirteen days after the Ohio incident on Feb. 16.

In recent decades, some of the most catastrophic accidents have been due to human mistakes.

An inquiry determined that a 2005 derailment in Graniteville, South Carolina, which killed nine people and injured more than 250 after the release of toxic chlorine gas, was caused by the failure to align a hand-operated switch. This had been overlooked by the crew working on the track.

Aerial shot from the deadly 2005 derailment in Graniteville, SC which resulted in the death of nine people and treatment of over 250 people for exposure to toxic chlorine gas.

In 2015, an Amtrak train that had gone off the rails in Philadelphia resulted in the death of eight passengers and injured more than 200. It was discovered that the locomotive was going 50 mph beyond the designated speed limit of 56 mph for the curve it was taking. The engineer had mistakenly believed that the speed limit for the upcoming curve was 110 mph.

As indicated by the Federal Railroad Administration, the amount of derailments has dropped in recent years, going from 1,311 in 2013 over 748 million miles to 1,049 in 2022 across 535 million miles. These figures demonstrate a decline in the amount number of trains coming off the tracks.

An examination by the Eno Center for Transportation concluded that less than one percent of railway tragedies can be traced to a derailment. The two major sources of fatalities on American railway systems are collisions between trains and vehicles as well as trespassers on railway property.

The research conducted by Eno found that around sixteen people are killed in rail crossing and trespassing accidents every week, an increase from the twelve fatalities recorded in 2012.

Eno's analysis of federal data has revealed that since 1990, the number of railroad safety incidents has dropped by a substantial 60%.

Train-related chemical spills are not common occurrences. Last year, there were approximately 10 such incidents throughout the nation.

In the last 10 years, the highest number of releases of hazardous materials happened in two years, 2018 and 2020, when the amount reached 20.

According to the Transportation Department's Pipeline and Hazardous Materials Safety Administration, the overall number of hazmat mishaps stemming from transportation accidents saw a significant decrease over the last decade, dropping to 80 in the last year.

Highway-related incidents held the highest share at 58, while railroads followed second with the most occurrences. The extent to which chemical spills were involved in each of these incidents is unclear.

Why Did Officials Authorize a “Controlled Release” of Toxic Chemicals?

It was an emergency decision that unleashed an enormous black cloud over East Palestine, Ohio, and Pennsylvania. Given the likelihood of an explosion, combined with the region's propensity for temperature inversions authorities probably opted for a controlled burn to release the substances in a more favorable atmosphere that would aid their dispersion.

Before the controlled burn, Ohio Governor Mike DeWine had law enforcement visit the evacuation zone three times to encourage locals to leave. He said the move was needed to prevent a major explosion. After the burn began, authorities kept an eye on air quality outside the evacuated area to guarantee safety.

Governor DeWine’s spokesperson, Dan Tierney, told The Washington Post that either they move forward with the controlled release or allow an uncontrolled explosion.

“It was not an option between (controlled) release or no release,” Tierney said. “It was an option between controlled release or an uncontrolled explosion with shrapnel.”

Surely, this binary outlook is flawed.

Norfolk Southern could have kept the railroad closed longer to develop a safer approach for first responders, residents (and their pets), and the environment.

Did they ever release data to show the full impact of a controlled release? Did the governor’s office request such data?

No public data is suggesting the controlled release was the best option at the time or that it had to be carried out at that particular point in time on February 6, only three days after the derailment.

Thousands of East Palestine residents are still fearful of the toxic releases and do not feel safe returning home. Some people who have returned are developing severe symptoms.

Independent journalist, Rich McHugh, describes one local's experience living in such conditions, “My eyes (bloodshot red) feel like they’re going to pop out of my head. Every time I sneeze, it’s bloody.”

Another East Palestine woman who returned home said she returned to her house for thirty minutes to manage her personal belongings and discovered severe rashes all over her face after showering.

Other people developed headaches, nausea, and more severe rashes, including small children.

A local woman, Katelyn, who lived a mile away from the crash site, developed a rash after showering at home in East Palestine.

Rich McHugh / Twitter

Although humans evacuated, many animals did not have the opportunity to vacate the area resulting in their death, such as chickens, cats, foxes, and fish most likely due to their exposure to phosgene.

It’s only been a few weeks.

We will not know the full health impact of the toxic chemical release on the people or environment until months or years later.

Even if the controlled release was the most effective choice, the public should have been given more warning.

Controlled release or no release, it’s all reactionary. The deeper issues are rooted in corporate greed, weak safety regulations, and poor federal governance.

If we want to avoid more catastrophic derailments, then we have to attack the problem at its core.

Only policy can do that.

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