Norfolk Southern, NTSB continue to debate decision to burn VCM in Ohio derailment

Norfolk Southern Corp. is continuing to defend its decision to burn off vinyl chloride monomer following a derailment in East Palestine, Ohio, in 2023, despite a National Transportation Safety Board finding that it was unnecessary.

Oxy Vinyls LP, the company that made the VCM in the tanker cars that derailed Feb. 3, 2023, says its expertise was not properly considered in the decision to burn off the material, a PVC feedstock.

In a statement to Plastics News, officials with Oxy Vinyls in Dallas thanked the NTSB and its investigators, but they added that "it's surprising to us that Norfolk Southern continues to challenge the results of a thorough government investigation led by the NTSB and supported by multiple federal agencies."

"We were shocked to learn that Oxy Vinyls' technical assessment and the temperature data collected by Norfolk Southern were not provided to the decision-makers," Oxy officials said. "It was Norfolk Southern's decision to direct the incident response communication flow and it was Norfolk Southern's choice not to inform the incident commander of Oxy Vinyls' data-based view that polymerization was not occurring."

A final meeting on the NTSB investigation of the Feb. 3, 2023 incident took place June 26 at East Palestine High School. At the meeting, investigators said the Investigators said the joint decision by the local incident commander, the railroad and railroad contractors to conduct a vent and burn of the contents of the tank cars carrying VCM — a PVC feedstock — was based on incomplete and misleading information from Norfolk Southern.

As a result, the vent and burnoff wasn't necessary to prevent a tank car failure, according to NTSB investigators. The burnoff led to clouds of black smoke that could be seen for miles.

At the meeting, NTSB investigator Paul Stancil provided most of the testimony about the decision to burn off the VCM. He said Oxy Vinyls, the petrochemicals firm that made the VCM being transported, "had no direct contact with the incident commander."

"There was a misunderstanding or confusion between Oxy Vinyls and Norfolk Southern and [NS] contractors," Stancil said. "The data [from Oxy] was not indicative of [VCM] polymerization."

The belief that the VCM was polymerizing and could have caused an explosion was a major factor in officials' decision to proceed with the burnoff on Feb. 6, three days after the derailment. NTSB investigators said June 25 that there was a low probability of polymerization, based on the data that Oxy Vinyls provided at the time of the derailment.

Investigators added that, according to the Federal Railroad Administration, a vent and burn procedure should be a last resort, used when a tank car is about to fail. They added that NS rejected three other removal methods and began planning for a vent and burn shortly after the derailment.

At the start of the meeting, NTSB Chair Jennifer Homendy said that "unfortunately, some have sought to minimize the wide-ranging impacts of this derailment, pointing to the fact that there were no fatalities or injuries."

"For this, we are certainly grateful, but the absence of a fatality or injury doesn't mean the presence of safety," she added. "Our agency doesn't wait for death or injury to occur. Instead, we objectively analyze the facts and evidence to make recommendations that, if implemented, will ensure this never happens again. Thanks to the hard work of our world-class investigators, we now have a road map to do just that."

As a result of the investigation, NTSB issued new safety recommendations to the state of Ohio, the Chlorine Institute, Norfolk Southern, the International Association of Fire Chiefs, the American Chemistry Council, Oxy Vinyls and several other agencies and trade organizations.

In a news release issued after the hearing, officials with Norfolk Southern in Atlanta defended their decision to burn off the VCM at the site.

"After carefully considering all alternatives, Norfolk Southern and its specialist contractors recommended a controlled vent and burn … as the only option to protect the community from a potential catastrophic explosion," they said. "This recommendation was developed under guidance from two of only three specialized firms in the country certified by the Chlorine Institute to respond to vinyl chloride emergencies."

Norfolk Southern said the company and its contractors "received conflicting information from Oxy Vinyls' personnel as to whether polymerization was or could be occurring … and Oxy Vinyls' safety data sheet was clear that polymerization was possible in the circumstances observed at the derailment."

"Norfolk Southern does not agree with the conclusion that it 'withheld' Oxy Vinyls' views," the company said. "Oxy Vinyls had every opportunity to participate. … They were on scene in the building where the Unified Command was operating. There was no obstacle to Oxy Vinyls making their views known to the ultimate decision-makers.

"The vent and burn effectively avoided a potential uncontrolled explosion," officials added. "There was no loss of life and contractors took steps to manage environmental impact."

In her closing comments, Homendy was deeply critical of Norfolk Southern and their behavior during the investigation.

According to Homendy, Norfolk Southern "numerous times … delayed or failed to provide critical investigative information to our team. Twice, at the request of staff, I called Norfolk Southern stating I would issue subpoenas to get the information if it wasn't immediately provided to our team."

She added that on the day before the investigative hearing in June 2023, Norfolk Southern retained, without NTSB knowledge, the services of a private company to test commercially purchased VCM — "not vinyl chloride from the five tank cars that derailed, but vinyl chloride that they purchased off the shelf."

"Then, instead of using their investigation for their own purposes, they submitted it for inclusion in the NTSB record. Not only did these actions violate our party agreement, but they violated the regulations governing our evidence collection," she said.

Homendy also said that Norfolk Southern four times tried to submit their own investigation and that the investigator-in-charge reminded them numerous times that parties "may submit to the NTSB written proposed findings to be drawn from the evidence produced during the course of the investigation."

"In other words, parties are afforded the privilege — not the right — to develop proposed findings from the evidence of our investigation," she added. "Parties are not permitted to manufacture their own evidence and develop their own set of facts outside the NTSB investigative process, which is exactly what Norfolk Southern did."

According to Homendy, two weeks before the final hearing, Norfolk Southern visited board members. In a meeting with her and other staffers, one of Norfolk Southern's senior executives said that it was their hope that the NTSB would put to rest the "rumor" that Norfolk Southern made the decision to vent and burn to move trains.

"That is not only unethical and inappropriate, but defending an entity's decision-making is not our role," Homendy said. The rail company executive went on to say, according to Homendy, that there's a "real interest" on the part of the Department of Justice and President Joe Biden's administration to move on. She added that was "something I've never heard once from the Department of Justice or the administration."

"Norfolk Southern then stated that this is an opportunity to close a chapter and allow the community and the railroad to move on," she added. "The entire exchange ended with what everyone from the NTSB heard in the room was a threat — and it was delivered that way — to use every avenue and opportunity to vigorously defend their decision-making in media and hearings going forward.

"That is your right. But it's not our role to defend Norfolk Southern. We're here to protect the American people and the traveling public. Our entire mission centers around learning from the past and building a better, safer future for all."

Homendy said that she "struggled a lot with whether I wanted to share all this detail with the public as I don't want it to overshadow our findings, probable cause or safety recommendations that were issued today. But Norfolk Southern's actions were unconscionable. I want everyone who works with the NTSB — on current and future investigations — to understand this: We are impervious to anything but the truth."

In a June 26 statement, NS officials responded to Homendy's comments. "At all times, Norfolk Southern cooperated fully and ethically with the investigation, and with full transparency," they said. "Our communications with NTSB staff and board members was always motivated by a desire that they had all relevant information for their independent evaluation and by a shared commitment to advance rail safety."

NS already has agreed to $910 million in total settlements to a class-action lawsuit filed by residents and to the U.S. Department of Justice, the U.S. Environmental Protection Agency and the U.S. Department of the Interior to resolve all claims and investigations from the derailment.

Even after the settlement, some area residents are doubtful that amount will cover current and future health care needs related to the accident. Jami Wallace, a lifelong East Palestine resident, said in an email to Plastics News that "no amount can ever make this right, but it should be at least enough to hurt [NS] a little bit."

Wallace, president of the Unity Council for the East Palestine Train Derailment, said area residents still don't have access to a toxicologist more than a year after the accident, even though some local children are still having nose bleeds, seizures and other illnesses.

Republican U.S. Sen. JD Vance and Ohio Attorney General Dave Yost issued a joint statement to express their concern that the settlement "could severely undercompensate the residents of East Palestine."

Federal officials said that together with other response costs and rail safety enhancements, NS estimates that it will spend more than $1 billion to address contamination and other harms caused by the derailment and to improve rail safety and operations.

According to NTSB's official account of the accident, part of an eastbound Norfolk Southern train derailed on its main track in East Palestine. Eleven derailed tank cars carrying hazardous materials soon ignited, fueling fires that damaged another 12 rail cars that did not derail. First responders implemented a 1-mile evacuation zone surrounding the derailment site that affected up to 2,000 residents.

Ongoing air, water and soil testing in the East Palestine area have shown that the area is safe, with no dangerous levels of chemicals present. NS has removed at least 400 million pounds of solid waste and more than 46 million gallons of wastewater from the area.