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DOJ sues Norfolk Southern related to Ohio derailment

Ohio derailment

The U.S. Justice Department filed a lawsuit late Thursday against Norfolk Southern Corp. and unit Norfolk Southern Railway Co. seeking damages for alleged environmental violations under the Clean Water Act and to hold the company liable for cleanup costs in the Feb. 3 freight train derailment in East Palestine, Ohio.

The complaint, filed on behalf of the Environmental Protection Agency in the U.S. District Court for the Northern District of Ohio, in Akron, Ohio, alleges that Norfolk Southern violated provisions of the Clean Water Act by discharging pollutants, oil and hazardous substances that contaminated local waterways and seeks declaratory judgment on liability for past and future costs under the Comprehensive Environmental Response, Compensation, and Liability Act.

The suit seeks to require the company to pay response costs, including a fine of $64,618 per day, per violation of the Clean Water Act, in addition to $44,808 per day or $2,232 “per barrel of oil or unit of reportable quantity of hazardous substances discharged.”

The suit follows a Feb. 21 order issued by the Environmental Protection Agency under the Comprehensive Environmental Response, Compensation and Liability Act requiring Norfolk Southern to conduct and pay for all cleanup actions associated with the derailment or face fines.

Thirty-eight rail cars derailed and 12 more were damaged by fire in the derailment. Eleven of the cars that derailed carried hazardous substances, including 115,580 gallons of vinyl chloride. Five more rail cars were carrying oil, according to the suit. Residents living near the site were evacuated.

In its suit, the DOJ calls out the actions of Norfolk Southern senior executives, noting that “approximately eighty percent of the compensation for NS Corporation’s executives are based on performance metrics,” including “increasing revenue, improving operating efficiency, and reducing expenses of its railroad subsidiaries.”

Over the past four years, annual reports show “a stark contrast between the increases in operating income and the drop in railroad operating costs,” the suit states.

“The drop in operating costs includes reductions in spending to repair, service, and maintain locomotives and freight cars, perform train inspections, and pay engine crews and train crews,” according to the suit.

The suit also seeks an injunction that Norfolk Southern will take necessary actions “to ensure safe transport of oil and hazardous materials, hazardous substances, pollutants and contaminants” and to “remedy, mitigate, and offset the harm to public health and the environment” caused by the environmental violations.

Since the derailment, numerous lawsuits seeking class-action status have also been filed against the Atlanta-based railroad holding company and Norfolk Southern Railway on behalf of businesses and residents, alleging negligence and seeking millions of dollars in damages.

As a result of the derailment, fire and firefighting efforts, other hazardous materials including naphthalene, petroleum, butyl acrylate, ethylhexyl acrylate, and ethylene glycol monobutyl ether reached the air, soil and/or waterway, according to the suit.

The EPA continues to analyze and monitor air and soil samples at the derailment site. The Ohio Department of Natural Resources has reported that thousands of aquatic animals were killed in the five-mile span of waterway from the site. The state of Ohio filed a lawsuit against Norfolk Southern March 15 seeking compensation for damages to the state’s environment, economy and residents.

Since the Feb. 21 EPA order, some 9.3 million gallons of liquid wastewater and an estimated 12,932 tons of contaminated soils and solids have been shipped off-site, the DOJ said in a statement Friday announcing the suit.

The Justice Department and the EPA are acting to pursue justice for the residents of East Palestine and to ensure that Norfolk Southern “carries the financial burden for the harm it has caused and continues to inflict on the community,” Attorney General Merrick B. Garland said in the statement.

“Our job right now is to make progress every day cleaning up the site, assisting residents whose lives were impacted by the derailment, and investing in the future of East Palestine and the surrounding areas. We are working with urgency, at the direction of the U.S. EPA, and making daily progress. That remains our focus and we’ll keep working until we make it right,” a spokesman for Norfolk Southern said in an email.

The company has to respond to the suit within 21 days.