The Ohio Attorney General’s office wants Norfolk Southern to pay for what are certain to be enormous costs related to a Feb. 3 train derailment that caused 38 rail cars to topple over, ignite a fire and cause resulting release of over 1 million gallons of hazardous chemicals in East Palestine.
A civil lawsuit filed March 14 in U.S. District Court in Cleveland alleges that the company violated hazardous waste and water quality laws and failed to take proper care to prevent the derailment. It cites 58 violations of federal and state environmental laws and Ohio Common Law related to the accident
"Norfolk Southern has repeatedly said that it will make the situation right," said Attorney General Dave Yost in a press release, adding, “This lawsuit will make sure that Norfolk Southern keeps its word.”
An overheated bearing on a rail car axle played a critical role in the derailment and chemical spill, according to a National Transportation Safety Board preliminary report issued Feb. 21.
In addition to a declaratory judgment holding Norfolk Southern responsible, the suit seeks recovery of costs and damages under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly known as Superfund, and the Ohio law for emergency response.
The suit also seeks repayment of natural resources and property damages and economic harm to the state and its residents, and also of the state’s current and future costs in responding to the emergency and for providing public services, preventing future harm to the environment and public health, restoring natural resources, civil penalties under state environmental laws, and repayment of court costs.
“As a formality, the complaint names a jurisdictional minimum for federal damages of $75,000, although the damages will far exceed that minimum as the situation in East Palestine continues to unfold,” Yost said.
The lawsuit charges that Norfolk Southern has an “extensive and tragic history of derailments and releases of hazardous materials, hazardous substances, hazardous wastes and/or other harmful pollutants.”
"The derailment was foreseeable and preventable," according to the suit, which alleges that railroad's accident rate increased by 80% over the last ten years, with at least 20 derailments since 2015 involving chemical releases.
The U.S. Environmental Protection Agency issued an administrative order in February under CERCLA requiring Norfolk Southern to "identify and clean up contaminated soil and water resources."
The railroad disputes charges that it is not doing enough to clean the site.
“Every day since the derailment, our goal has been to make it right for the people of East Palestine and the surrounding communities," a statement from the railroad says. "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."
Connor Spielmaker, a Norfolk Southern spokesperson, said railroad officials met with Yost in mid-March to discuss residents’ ongoing concerns and how to address them, including creating a long-term medical compensation fund as an extra layer of assurance against health problems, providing tailored protection for home sellers if their property loses value due to the derailment, and working with stakeholders to protect drinking water.
“To date, environmental monitoring continues to show the air and drinking water are safe," the railroad states.
The lawsuit also asks the court to require Norfolk Southern to conduct future monitoring of soil and groundwater at the derailment location, in 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.
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