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Biden administration open to legislation after Ohio derailment

Congressional action may be faster than the regulatory process, they say

A sign displayed information for residents to receive air quality tests from Norfolk Southern Railway on Thursday in East Palestine, Ohio.
A sign displayed information for residents to receive air quality tests from Norfolk Southern Railway on Thursday in East Palestine, Ohio. (Michael Swensen/Getty Images)

Biden administration officials said Friday they would welcome congressional action to ramp up safety measures for trains carrying highly hazardous materials following a train derailment in East Palestine, Ohio.

Officials from the Federal Emergency Management Agency, Environmental Protection Agency, the Federal Railroad Administration and Department of Health and Human Services said during a background briefing Friday that they are waiting for the National Transportation Safety Board to release a report on the Ohio derailment before they announce any further action but that they are open to stronger safety measures.

On Feb. 3, a Norfolk Southern train derailed and caused a pileup of 150 cars, 20 of which contained cargoes classified as hazardous materials, including vinyl chloride, a chemical used to manufacture PVC plastic. Although the initial derailment did not breach these cars, authorities evacuated the area on Feb. 6 over concerns that they might explode.

Many nearby residents are still wondering about potential lingering health impacts.

Other groups, including rail unions, have already been pointing to an Obama-era rule that would have required trains carrying “high hazardous materials” to install electronic braking systems to stop trains more quickly than conventional air brakes. They argue the brake requirements wouldn’t have stopped the derailment but could have mitigated its impacts.

The rule came after one of the deadliest train derailments, in 2013, when a train carrying crude oil dislodged from its tracks in the small town of Lac-Mégantic, Quebec, killing 47 people and engulfing much of the town in flames.

Facing public outcry from that conflagration and other oil and chemical train derailments, such as a 2012 incident in New Jersey in which a train crashed and spilled vinyl chloride into a river near Philadelphia, the Obama administration in 2014 proposed new safety rules for trains carrying flammable substances, including a requirement for rail companies to install so-called electronically controlled pneumatic (ECP) brakes. The rule was finalized in 2015.

The industry had been arguing that the price tag for rail companies to install ECP was too high and not economically justified. After the Government Accountability Office released a 2016 report that found fault in the agency’s cost-benefit analysis, the Trump administration repealed the brake requirement since the “expected benefits do not exceed the expected costs.”

Debate over the rule coincided with intense lobbying by the rail industry. Over the past 10 years, Norfolk Southern spent the most on lobbying in 2013, 2014 and 2015, spending $2.9 million, $2.75 million and $2.4 million, respectively. Its in-house lobbying has not surpassed $2 million since.

The railroad lobbied during the 113th Congress, which covered 2013 and 2014, against legislation requiring two-man crews for locomotives and the rule requiring ECP brakes on trains, disclosure records show.

Norfolk Southern also lobbied against a bill from Democratic senators Charles E. Schumer and Kirsten Gillibrand of New York and Christopher S. Murphy and Richard Blumenthal of Connecticut to institute a series of rail safety reforms, including speed restrictions on trains carrying flammable materials and mandates for “oil spill response plans” for trains with hazardous substances.

Despite its lobbying against ECP brakes, Norfolk Southern boasted in 2007 that it was “making railroad history” in being the first to employ ECP brakes. The company touted the brakes at the time for their “potential to shorten stopping distances and improve railroad and public safety, network capacity and efficiency, asset utilization, fuel savings and equipment maintenance.”

Next steps?

National Transportation Safety Board Chair Jennifer Homendy tweeted Thursday night that if the ECP brake rule had been in place, it wouldn’t have applied to the train that was derailed in Ohio.

“The ECP braking rule would’ve applied ONLY to HIGH HAZARD FLAMMABLE TRAINS. The train that derailed in East Palestine was a MIXED FREIGHT TRAIN containing only 3 placarded Class 3 flammable liquids cars,” she tweeted. “This means even if the rule had gone into effect, this train wouldn’t have had ECP brakes.” 

However, that could change if Sen. Sherrod Brown, D-Ohio, and Rep. Bill Johnson, R-Ohio, push legislation to change how the federal government classifies hazardous material transported by rail — something they said Thursday that they’re considering. Although the train carried materials that are linked to adverse health effects, it did not meet the federal government’s classification as a “high-hazardous material train,” meaning the company was not required to inform state officials about the chemicals these cars contained.

“Frankly, if this is true, and I’m told it’s true, this is absurd, and we need to look at this, and Congress needs to take a look at how these things are handled,” Ohio Gov. Mike DeWine said.

Regardless of the classification, a Biden administration official said the Federal Railroad Administration “is going to continue to do as much as possible to ensure safety,” and added that the agency has worked in the past to strengthen rail rules after a derailment, alluding to the 2013 Canada accident.

Administration officials also said they “welcome” Congress considering provisions to create stronger protections against highly hazardous materials, including ECP brake requirements. 

Congressional action would be much faster than a federal regulation, which is subject to lengthy public comment and review periods. The officials added that they “have already acted” on ECP brakes and “Congress can act unilaterally to avoid that process.”

It’s not clear what kind of legislation Congress will consider, but lawmakers’ increased attention to the Biden administration’s cleanup efforts and investigation bode well for some kind of action. Many continue to demand more answers from EPA and NTSB in the form of congressional briefings, although NTSB said it intends to release a preliminary report within the next month.

“It is imperative that the EPA is transparent with the American people about the risks this disaster may pose to the health, safety, and well-being of those in affected areas,” Sen. Josh Hawley, R-Mo., wrote in a letter. “It has been nearly two weeks since the train derailed and assurances from your agency are still at a minimum.”

Benjamin J. Hulac contributed to this report.

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