Ohio Sues Norfolk Southern Over East Palestine Derailment

March 14, 2023 by Dan McCue
Ohio Sues Norfolk Southern Over East Palestine Derailment
Portions of a Norfolk Southern freight train that derailed in East Palestine, Ohio, remained on fire by the following day on Feb. 4, 2023. (Gene J. Puskar/Associated Press)

COLUMBUS, Ohio — The state of Ohio filed a 58-count civil lawsuit against Norfolk Southern Tuesday, seeking to hold the Class 1 railroad financially responsible for the Feb. 3 derailment in East Palestine that caused the release of an estimated 1 million gallons of hazardous chemicals.

“Ohio shouldn’t have to bear the tremendous financial burden of Norfolk Southern’s glaring negligence,” said state Attorney General Dave Yost who filed the lawsuit in the U.S. District Court of the Northern District of Ohio.

“The fallout from this highly preventable incident may continue for years to come, and there’s still so much we don’t know about the long-term effects on our air, water and soil,” he said.

In the aftermath of the wreck, Alan Shaw, CEO of Norfolk Southern, personally apologized for the impact of the derailment.

“It is my commitment and Norfolk Southern’s commitment that we are going to be there for as long as it takes to help East Palestine thrive and recover,” he said during a March 9 session of the U.S. Senate Environment and Public Works Committee.

On Tuesday, Yost said he was filing the lawsuit to “make sure that Norfolk Southern keeps its word.”

The lawsuit cites the company’s escalating accident rate, which has risen 80% in the past 10 years. At least 20 Norfolk Southern derailments since 2015 have involved chemical discharges.

“The derailment was entirely avoidable and the direct result of Norfolk Southern’s practice of putting its own profits above the health, safety and welfare of the communities in which Norfolk Southern operates,” the lawsuit says.

The lawsuit seeks to punish Norfolk Southern with scores of violations of various federal and state environmental laws, as well as Ohio Common Law. 

The Common Law violations include negligence counts relating to defects in the train and the train’s operation. 

Several nuisance counts encompass the chemical releases into the air, public waterways and public land, and trespass counts address the contamination of natural resources.

Overall, the lawsuit says, the violations resulted in an untold volume of hazardous pollutants being released into the air, water and ground, posing substantial, long-term threats to human health and the environment.

The complaint says releases from at least 39 rail cars have made their way into Sulfur Run, Leslie Run, Bull Creek, North Fork Little Beaver Creek, Little Beaver Creek, the Ohio River and/or some still-unknown Ohio waterways. 

Likewise, the derailment “has caused substantial damage to the regional economy of the state of Ohio, its citizens and its businesses. The citizens of the region have been displaced, their lives interrupted and their businesses shuttered.”

Yost said Tuesday that Ohio is entitled to recover the lost taxes and other economic losses it has suffered, the lawsuit maintains. 

He is seeking injunctive relief, civil penalties, costs, damages and court costs, and a declaratory ruling from the court holding Norfolk Southern responsible.

Additionally, Yost is asking the court to require Norfolk Southern to conduct future monitoring of soil and groundwater at the derailment location, the surrounding areas and beyond — and to submit a closure plan to the Ohio EPA.

The lawsuit would also prohibit Norfolk Southern from disposing of additional waste at the derailment site and from polluting Ohio waters.

In the wake of Yost filing the lawsuit Tuesday, Norfolk Southern issued a lengthy statement in which it said, “Every day since the derailment, our goal has been to make it right for the people of East Palestine and the surrounding communities.

“We are 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 communities around it thrive,” it continued.

“We are also listening closely to concerns from the community about whether there could be long-term impacts from the derailment. This week, we met with Ohio Attorney General Dave Yost to discuss three additional programs we plan to develop in conjunction with his office and other community leaders and stakeholders.”

The statement went on to acknowledge that many residents are worried about what they will do if health impacts related to the derailment are discovered years into the future.

“We appreciate Ohio Gov. Mike DeWine’s leadership and advocacy on this point,” the railroad’s statement said. “To date, environmental monitoring continues to show the air and drinking water are safe. To provide an additional level of assurance, we are committed to a solution that addresses long-term health risks through the creation of a long-term medical compensation fund.

“We also know residents are worried about their home values. While we are working with local leaders on investments to support the community’s long-term prosperity, we understand these concerns. We are committed to working with the community to provide tailored protection for home sellers if their property loses value due to the impact of the derailment,” it continued.

“Finally, we have heard the community’s interest in programs that protect drinking water over the long term. We are prepared to work with stakeholders toward that goal as well.

“We look forward to working toward a final resolution with Attorney General Yost and others as we coordinate with his office, community leaders, and other stakeholders to finalize the details of these programs,” the statement concluded.

Dan can be reached at [email protected] and @DanMcCue

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