On March 30, 2023, the United States Department of Justice (“DOJ”)
filed suit against railway operator Norfolk Southern Corporation for violations
under the Clean Water Act (“CWA”) and the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”) in connection with a train
derailment in East Palestine, Ohio. The February 3, 2023, derailment resulted
in at least eleven train cars containing hazardous substances colliding with
one another and catching on fire.
The DOJ claims that hazardous substances from the train
vented into the air, spilled onto the ground, contaminated local waterways, and
flowed for miles downstream. The train cars purportedly contained vinyl chloride,
ethylene glycol monobutyl ether, ethylhexyl acrylate, butyl acrylate,
isobutylene, and benzene residue. Additionally, some of the derailed rail cars
contained oil and petroleum products. According to the DOJ, exposure to these
chemicals at sufficiently high levels has been associated with an increased
risk of cancer, risks to fetal development, organ damage, and other health
conditions.
Norfolk Southern is facing litigation from multiple other parties
related to the East Palestine, Ohio derailment. The State of Ohio filed suit,
citing 58 counts of federal and state environmental law violations, as well as
common law negligence, public nuisance, and trespass claims. Norfolk Southern has
also been sued by a group of its shareholders. The shareholders accuse the
company of defrauding them by playing down the risks of its “Precision
Scheduled Railroading” policy, which relies on longer and heavier trains that
require fewer workers.
Notably, the DOJ does not claim that Norfolk Southern committed negligence. Although the DOJ points out in its Complaint that railroad operating costs, including spending to repair and maintain freight cars and perform inspections, has dropped in the past four years while Norfolk Southern’s revenue and net income increased, the DOJ’s causes of action are all based on violations of environmental statutes rather than negligence or violation of transportation regulations.
