Feds sue Norfolk Southern

Cite discharge, Clean Water Act violations

Staff photo / R. Michael Semple A street cleaner passes up and down the closed Pleasant Drive near the Feb. 3 Norfolk Southern train derailment cleanup site along the tracks in East Palestine. Two large water storage tanks can be seen at right.

The United States Department of Justice claims the Norfolk Southern Corp. and its railway violated the U.S. Clean Water Act when hazardous chemicals were dispersed into the water tables of eastern Ohio and western Pennsylvania.

A new complaint filed in U.S. District Court in Youngstown by the government asks a judge to ensure the railroad company pays the full cost of the environmental cleanup needed after the Feb. 3 derailment and subsequent aftermath in East Palestine.

The civil lawsuit asks a judge to issue civil penalties of $64,518 per day per violation of the Clean Water Act, as well as $55,808 per day or $2,232 per barrel of oil for other violations that occurred surrounding the derailment.

The government also wants Norfolk Southern to take actions to ensure safe transport in the future of all hazardous material, pollutants and contaminants — including oil — on its railways.

U.S. Judge John R. Adams and Magistrate Carmen E. Henderson have been assigned the case.

The filing notes that about 80 percent of the compensation for executives of the railroad are based on their performance in increasing revenue, improving efficiency and reducing expenses. Annual reports in the last four years from Norfolk Southern show a contrast between the increases in operating income and the drop in railroad operating costs.

The lawsuit notes that drop in operating costs included cuts in spending to repair and maintain locomotives and freight cars, routine inspections and pay for the railroad crew.

Some 38 rail cars derailed in the middle of East Palestine the night of Feb. 3. At least 11 of those cars were carrying hazardous materials that included vinyl chloride, ethylene glycol monobutyl ether, ethylhexyl acrylate, butyl acrylate, isobutylene and benzene residue, according to the complaint.

The lawsuit notes that exposure to these materials at sufficiently high levels has been associated with an increased risk of cancer; risks to fetal development; damage to human organs such as liver, kidneys, lungs and skin; as well as other health maladies.

Also, five of the derailed cars carried oil, with another containing fuel additives with some of the derailed cars catching fire.

In response, residents living within a one-mile radius of the derailment were evacuated Feb. 4. The fire resulting from the crash continued to burn until Feb. 5, sending hazardous chemicals into the environment, including the air, soil, groundwater and waterways, government attorneys wrote.

On Feb. 6, because of rising temperatures in a tank car containing vinyl chloride, the railroad vented and burned the contents of five rail cars containing the hazardous chemical in order to prevent an explosion. This action increased the evacuation zone to a 2-mile radius.

The EPA on Feb. 21 — after determining the threats to health and environment — ordered the railroad to monitor the air and soil samples, surface waters and sediments, groundwater and drinking water sources around the derailment site. The government also required the railroad to implement a plan for containment and remediation of any contaminated surface or waters, including groundwater and wells.

The government claims the derailment and aftermath allowed hazardous materials to enter Sulphur Run, Leslie Run, Bull Creek, the north fork of the Little Beaver Creek, and the Ohio River via discharge from an unnamed tributary close to the derailment site.

Naphthalene, which is classified as a hazardous substance under the Clean Water Act, and other petroleum hydrocarbons have been detected in the sampling of Sulphur Run and Leslie Run, according to the lawsuit.

Efforts to reach attorneys J. Lawson Johnston and Scott D. Clements, both of Pittsburgh, who are representing the railroad, have been unsuccessful.

Previously, Norfolk Southern has stated it is making progress every day cleaning the site safely and thoroughly, providing financial assistance to residents and businesses that have been affected and investing to help East Palestine and the community around it thrive.

Programs under consideration include “a solution that addresses long-term health risks through the creation of a long-term medical compensation fund,” according to the company’s statement.

Also, Norfolk Southern stated it is “working with the community to provide tailored protection for home sellers if their property loses value due to the impact of the derailment” and working on a plan to protect drinking water over the long term.

Meanwhile, U.S. Judge Benita Pearson in Youngstown met Friday with counsel in the 29 other cases involving Norfolk Southern now pending on the federal docket, with counsel voicing positions regarding the matters. Court officials could decide whether to combine the cases into class-action lawsuits.


Today's breaking news and more in your inbox

I'm interested in (please check all that apply)
Are you a paying subscriber to the newspaper? *

Starting at $2.99/week.

Subscribe Today