By Julie Sneider, Senior Associate Editor
When the National Transportation Safety Board closes its investigation into the Feb. 3 Norfolk Southern Railway train derailment in East Palestine, Ohio, the board most certainly will make recommendations for improving the safety of transportation of hazardous materials by rail. Typically, the NTSB makes recommendations directed at the transportation company or companies at the heart of an investigation, as well as to trade associations and other government organizations that have the authority to make safety improvements.
In the NS derailment case in Ohio, the board will complete its investigation and then issue safety recommendations to make sure such an accident never happens again, NTSB Chair Jennifer Homendy said in a Feb. 23 press conference held after the board released its preliminary report of the accident.
That final report — including the board’s conclusion of the probable cause — won’t be issued for another 12 to 18 months, she said.
“But if we see a safety issue that we think needs to be addressed immediately, we will not hesitate to issue an urgent safety recommendation,” said Homendy.
It would be consistent with NTSB’s previous practice to conclude its investigation with recommendations for NS, the U.S. Department of Transportation and its Federal Railroad Administration (FRA) and Pipeline and Hazardous Materials Safety Administration (PHMSA), the Association of American Railroads (AAR), other rail-related trade associations and other Class Is.
NTSB investigators examine a rail tank car in East Palestine, Ohio, on Feb. 22. NTSB Newsroom/Twitter However, just because the NTSB — an independent federal agency — makes a safety recommendation, it doesn’t mean it will be adopted. The recommendations are voluntary: No company, industry or government agency is required to take any action. And, many times the board’s recommendations are dismissed, partially adopted or require congressional action before they are enforced.
The board’s goal through investigations and recommendations is to improve safety, Homendy said at the press conference. After it recommends safety improvement actions following the derailment in East Palestine, “we will work to get those recommendations implemented," she said.
“There are recommendations that we’ve worked on consistently for 50 years. Positive train control (PTC) is a great example,” said Homendy. “We don’t give up.”
The NTSB issued its first recommendation calling for automatic train control in 1970. Twenty years later, positive train separation, which was renamed positive train control in 2001, made the NTSB's list of the "most wanted" safety improvements. In 2005, the board held a symposium on PTC to "reinvigorate the dialogue" between the rail industry and state and federal agencies on issues relevant to the technology's implementation.
But it wasn’t until a deadly collision in 2008 between a Metrolink commuter train and a Union Pacific Railroad freight train in Chatsworth, California, that Congress passed the Rail Safety Improvement Act requiring certain freight and commuter railroads to implement PTC. The initial deadline for adopting the safety technology was by the end of 2015. After successfully securing deadline extensions from the federal government, the railroads required to implement PTC finally did so by the end of 2020.
Still open: 29 recommendations for tracks, hazmat trains
Today, NTSB has 29 open safety recommendations related to trains transporting hazardous materials and railroad track conditions that could lead to derailments, according to board data.
These open recommendations include No. R-07-004, which was made to PHMSA 16 years ago that it — with the assistance of the FRA — require railroads to immediately provide emergency responders with accurate, real-time information regarding the identity and location of all hazardous materials on a train.
The recommendation is connected to a July 2005 fatal accident in Anding, Mississippi, in which two CN freight trains collided head-on at the CN Yazoo Subdivision. The collision resulted in the derailment of six locomotives and 17 cars. All four crew members — two on each train — died. About 15,000 gallons of diesel fuel were released from the locomotives and resulted in a fire that burned for about 15 hours, according to the NTSB accident report.
Correspondence between the NTSB, PHMSA and the FRA over the years indicates efforts have been made to address the issue in various forms. The recommendation remains open, however. A section of the Fixing America’s Surface Transportation (FAST) Act passed by Congress in 2015 mandates that PHMSA issue regulations as NTSB recommends. The last correspondence NTSB received from PHMSA indicated it was preparing a notice of proposed rulemaking (NPRM) to take action on the matter. There has been no further action since that time, NTSB spokesman Keith Holloway said in an email.
Another NTSB hazmat safety recommendation that remains open is No. R-14-014, which called on the U.S. Department of Transportation to require railroads transporting hazardous materials through communities to provide emergency responders and local and state emergency planning committees with current commodity flow data and assist with the development of emergency operations and response plans.
That recommendation stems from the NTSB’s investigation into a November 2012 incident in which a Conrail train that was carrying hazardous materials derailed, spilling vinyl chloride into the Mantua Creek in Paulsboro, New Jersey. As a result of its investigation, the NTSB reiterated various safety recommendations and issued 20 new ones, including one to the USDOT and it’s that one that remains open. PHMSA, which is part of the USDOT, responded to the recommendation and on July 29, 2016, published an NPRM. However, the NTSB commented that the NPRM “fails to require railroads to actively assist communities with emergency planning,” according to Holloway.
Open recommendations vary in status
The NTSB uses several classifications to describe the open status of a recommendation, including Open-Await Response, or OAR; Open-Acceptable Response (OAA); and Open-Unacceptable Response (OUA).
NTSB policy calls for recommended actions to be completed within three to five years after being issued. After that, the recommendation should be classified as “closed-unacceptable action” unless the NTSB believes progress is being made or the “issue is of significant national importance that justifies keeping the recommendation open to focus attention on the issue,” said Holloway.
A recommendation that remains open can mean many things, including that it’s in the process of being implemented. It also can mean the NTSB is unaware that any action has been completed. This may occur because a railroad either opposes or places little importance on the action, or the railroad believes other actions taken or planned will address the safety need, Holloway said.
“Frequently, railroads — and other organizations — do not inform the NTSB when actions are taken or completed,” he said.
To evaluate whether a recommendation has been adequately addressed, the board uses facts from the accident to determine whether the recommended actions would have prevented the derailment in the first place. The NTSB’s evaluation may also consider if an alternative action was taken to address the safety concern.
Currently, there are 1,100 open NTSB safety improvement recommendations for all transportation modes. Of those, 244 are for the rail industry and about 12% of those are related to hazmat trains and track situations that could prevent derailments.
But the number of open recommendations can be a confusing number, Holloway cautioned.
“A single recommendation may represent a significant change affecting the entire industry, another may represent a narrow focus with limited applicability,” he said. “In addition, sometimes similar recommendations may be issued to the railroads, another to FRA, another to PHMSA and another to AAR. That is four recommendations for the same issue.”
Moreover, there’s no law — unless Congress makes one — that says any business, industry or government entity must ever follow through with NTSB safety recommendations.
“It should also be kept in mind that in some cases — all in modes other than rail — Congress has enacted legislation prohibiting federal agencies from taking actions that the NTSB has recommended,” Holloway said.
