Feds Sue Norfolk Southern Over Spills, Clean Water Act Violations

This photo taken with a drone shows parts of a Norfolk and Southern freight train that derailed Friday night in East Palestine, Ohio, still burning at noon Saturday, Feb. 4, 2023. (AP Photo/Gene J. Puskar)

YOUNGSTOWN, Ohio – The U.S. Department of Justice alleges that Norfolk Southern Corp. and its railroad violated the U.S. Clean Water Act when hazardous chemicals were released into groundwater in eastern Ohio, western Pennsylvania, and northern West Virginia.

A complaint filed in US District Court in Youngstown by the government asks a judge to ensure that the railroad company pays the full cost of the environmental cleanup caused by the Feb. 3 derailment and subsequent aftermath in eastern 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 around the derailment.

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

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

The filing notes that about 80% of railroad executive compensation is based on their performance in increasing revenue, improving efficiency and reducing expenses. Annual reports over the past four years from Norfolk and Southern show a contrast between the increase in operating income and the decrease in rail operating costs.

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

About 38 rail cars derailed in the middle of eastern Palestine on the night of 3 February. At least 11 of those carts carried hazardous materials that included vinyl chloride, ethylene glycol monobutyl ether, ethyl hexyl acrylate, butyl acrylate, isobutene and benzene residues, according to the complaint.

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

In addition, five of the derailed cars were carrying oil, another of which contained fuel additives. Some of the derailed cars caught fire.

In response, residents living within a 1.5 km radius of the derailment were evacuated on 4 February. The fire resulting from the crash continued to burn until Feb. 5, sending dangerous chemicals into the environment, including air, soil, groundwater and waterways, state attorneys wrote.

On February 6, due to rising temperatures in a tank car containing vinyl chloride, the railroad vented and burned the contents of five rail cars containing the dangerous chemical to prevent an explosion. This measure increased the evacuation zone to a radius of two miles.

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

The government alleges that the derailment and its aftermath allowed hazardous materials to enter Sulfur Run, Leslie Run, Bull Creek, the northern part of Little Beaver Creek, Little Beaver Creek, and the Ohio River via discharge from an unnamed tributary near 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 Sulfur Run and Leslie Run, according to the lawsuit.

Attempts to reach attorneys J. Lawson Johnston and Scott D. Clements, both of Pittsburgh, who represent the railroad, were unsuccessful.

Earlier, Norfolk Southern said it is making progress every day by cleaning up the site safely and thoroughly, providing financial support 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 by creating a long-term medical compensation fund, according to the company's statement.

Norfolk Southern also stated that it is “working with the community to provide tailored protections for home sellers if their property loses value due to the effects of the derailment” and is working on a plan to protect drinking water in the long term.

Meanwhile, U.S. Magistrate Judge Benita Pearson met in Youngstown on Friday with attorneys in the 29 other cases involving Norfolk and Southern that are now awaiting the federal filing, with attorneys commenting on the cases. Court officials can decide whether to combine the cases into a class action.