Farley Offers Perspective on Response to East Palestine Derailment
January 24, 2023
Managing Partner Mark Farley recently was asked for his perspective on the response to the February 3, 2023, train derailment in East Palestine, Ohio. (“Norfolk Southern Derailment Exacerbated By Poor Comms,” By Juan Carlos Rodriguez, Law360 (February 23, 2023, 10:59 PM EST). The derailed equipment included 11 tank cars carrying hazardous materials that subsequently ignited, fueling fires. Concerns about health and environmental impacts have driven an unprecedented level of scrutiny.
Asked about the effectiveness of the response, Farley explained that "First and foremost, rebuilding trust is a critical element of the effective response to a major accident," he said. "The accident itself represents a significant breach of trust of what I call a 'societal license to operate.' And a major accident such as a fire or an explosion or a toxic release, or in this case a derailment, can call into question whether or not a company can be trusted to operate safely after an incident."
Farley said he encourages his clients to ask, at every decision and action they take, whether it is going to help them rebuild the trust that they lost because of an accident.
"Looking at the situation in East Palestine, it just doesn't appear that the company has been effective in rebuilding that trust," he said.
Farley added that the situation points to a failure to prepare for the worst, a key component of any crisis response plan. He said East Palestine seems to be a case where none of the parties anticipated how quickly the public's perception of the response would deteriorate. He said he tells his clients that it's important to front-load resources, or even "over resource" a response, as they can always dial their efforts back, and that it's preferable not to play catch-up.
"These situations are perfect legal storms that can quickly swamp even the most sophisticated organizations," Farley said. "And in this instance, the nature of the event, the chemicals that were involved, the proximity of the residences and the public, and really just stunning images of the fire and smoke plume really drove scrutiny in an unprecedented way."
Farley & Partners is a Chambers-ranked boutique law firm in Houston, Texas with a nationally recognized workplace safety and crisis management practice. Managing Partner Mark Farley is a preeminent national workplace safety and crisis management lawyer. Many of the largest global energy companies and chemical manufacturers identify him as their crisis response counsel. Mark has served in lead attorney roles for some of the most significant US industrial accidents in the last 20 years. A trusted advisor to his clients, his practice is focused on developing a new standard for how companies respond to the multiple governmental investigations that occur in the aftermath of a workplace disaster.