Biden officials weighing civil penalties in Ohio's toxic rail disaster

The Biden administration is considering civil penalties for freight railroad Norfolk Southern, along with possibly a legally binding order to ensure the company pays for cleanup costs associated with the toxic derailment in Ohio on Feb. 3, senior officials told reporters on Friday.

In a call designed to highlight the work of several agencies on the ground in East Palestine, Ohio, administration officials detailed the work being conducted by FEMA, the EPA, Health and Human Services, Transportation Department and independent investigatory agency the National Transportation Safety Board. The railroad has already pledged to pay for the costs of the cleanup, but officials said Friday that if it does not, the government would do it and charge Norfolk Southern three times the cost.

Several officials noted that previous disasters, such as the 2013 derailment in Quebec of a runaway train carrying crude oil that caught fire and killed 47 people, had spurred regulatory and legislative action and they were certain this would have a similar result.

The officials also defended the furor of criticism of what some see as a delayed response by the administration, in particular DOT Secretary Pete Buttigieg who did not speak publicly about the derailment until over a week after it happened, by saying an evacuation order was in place early on because of the danger of an explosion and local authorities were telling people to stay out of the area. Beyond that, they said that visits by high-ranking officials can create a distraction to crews working on the ground.

Officials on the call touched on the debate over whether electronically controlled pneumatic brakes could have averted the disaster. In 2015, after a National Academy of Sciences study could not find conclusively that they were better than other braking options, a rule that would have mandated their use on certain trains carrying very dangerous substances was withdrawn under the Trump administration, as required by statute.

“We got an avalanche of lawsuits opposing it immediately after we finalized it, which was in 2015,” one administration official said. “In 2016, Congress created a new bar for the cost-benefit analysis of the rule and directed us to essentially revisit it, with additional costs to consider.”

“So we found the safety benefit benefit was sufficient,” the official went on. “Then Congress weighed in. So that created an artificially higher bar for that rule and demonstrated a lack of support for that portion of the rule.”

On Thursday, NTSB Chair Jennifer Homendy took to Twitter to insist that “even if the rule had gone into effect, this train wouldn't have had ECP brakes” because it would have “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 explained.

Several administration officials on the call said that ECP brakes have safety benefits and challenged Congress to act, since legislative action is quicker than regulatory action.

Officials also spoke about a pending rule that would require freight trains to have at least two crew members on board and to keep a sufficient maintenance and inspection workforce, saying it is "important it is not to curtail mechanical and brake safety inspections” as well as “making sure that the right people within the railroads are conducting those investigations.”

They also noted that the Biden administration has reinstituted audits of the railroads after they were suspended by the Trump administration.