Legal News: Ohio AG Sues Norfolk Southern Over East Palestine Train Spill.

Legal News

On March 14, 2023, Ohio filed a lawsuit against Norfolk Southern Railway Company, a multi-billion dollar entity, in the U.S. District Court for the Northern District of Ohio. The lawsuit stems from the East Palestine train derailment (the “Derailment”), which took place on February 3, 2023. The lawsuit seeks to “recover response costs, redress damages to natural resources, and receive an order for injunctive relief, civil penalties, and damages.” 

The Derailment 

The Derailment of train 32N occurred at approximately 9 PM in East Palestine, Ohio—roughly fifty miles northwest of Pittsburgh, Pennsylvania. The accident is believed to have been caused by the overheating and failure of at least one wheel bearing. Twenty of the derailed cars contained hazardous materials, including vinyl chloride, butyl acrylate, ethylhexyl, acrylate, and ethylene glycol monobutyl ether. 

Chief among the substance concerns was vinyl chloride, which emits toxic substances when it burns. The Environmental Protection Agency (EPA) states that it was notified of the Derailment about two hours after it occurred, and personnel were on site five hours after the accident. The surrounding downwind area was evacuated. Reports were made of health and safety hazards to people and animals in the affected region. Three days after the crash, emergency responders intitiated a controlled release and burn of the remaining vinyl chloride. All the while, the EPA was overseeing air monitoring, water sampling, and other safety controls.  

On February 10, 2023, EPA Region Five sent a notice of potential liability to Norfolk Southern’s Deputy General Counsel, Matt Gernand. The letter conveyed that the company was a potentially responsible party that might be responsible for cleaning up the Derailment site, or reimbursing the EPA for the cleanup costs incurred by the Agency, under Sections 106(a) and 107 the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), colloquially known as the “Superfund Act.”

Ohio’s Lawsuit  

About a month and a half after the Derailment, Dave Yost, the Attorney General (AG) of Ohio, filed a 106-paged complaint in federal court against Norfolk Southern. The complaint consists of 58 counts alleging violations of Ohio state laws, the federal CERCLA, and common law. In an announcement released the day of the filing, AG Yost stated, “Ohio shouldn’t have to bear the tremendous financial burden of Norfolk Southern’s glaring negligence.” 

Ohio’s lawsuit points out that this Derailment is only the latest in a series of recent Norfolk Southern accidents. In fact, the company’s “accident rate has nearly doubled in the past 10 years, and at least 20 of those derailments since 2015 have involved chemical releases.” Ohio alleges that the entity’s increasingly common incidents are a result of putting its bottom line above health and safety. The instant filing details how this particular disaster was “foreseeable and preventable.” Prior to the Derailment, Norfolk Southern received real-time warnings and reports of malfunctions occurring with the train’s wheel bearings. 

Ohio seeks to hold the transporter accountable for its “release of over one million gallons of hazardous materials, hazardous substances, hazardous wastes, and/or other harmful pollutants into Ohio’s air, streams, rivers, soil, and groundwater, killing tens of thousands of fish and other animals, and recklessly endangering the health of Ohioans throughout the region.” Sought-after compensatory and punitive relief for the harm caused by the Derailment includes the cost of emergency response and cleanup efforts, as well as compensation for the physical and economic harm suffered by local residents. The complaint also requests that the court issue a series of injunctions and declarations that would prohibit Norfolk Southern from further violating the law and negligently injuring. 

What To Watch For

Ohio’s lawsuit is just one of many that Norfolk Southern is facing in the aftermath of the Derailment. Norfolk Southern has yet to answer the Ohio complaint. However, the company has previously stated that it is committed to safety and has invested in new technologies and training programs to prevent incidents like the East Palestine train derailment from occurring. 

The Derailment suits against Norfolk Southern are expected to be closely watched by other transportation companies and industry experts, as they could set a precedent for future cases involving train derailments and hazardous materials. The outcome of this particular lawsuit could have a significant impact on the federal and state safety standards and regulations governing the transportation of hazardous materials by rail in the United States.