Reports: NS to Cover East Palestine Cleanup, Face Residents’ Lawsuits

Aerial photograph of derailment site, courtesy of the NTSB.

Following the Feb. 3, 2023, Norfolk Southern (NS) derailment in East Palestine, Ohio, judges have found the Class I “alone will be responsible for paying for the cleanup,” according to the Associated Press, and “must face a proposed class action” on behalf of area residents, businesses and property owners who allege the railroad’s “negligence” led to the derailment, according to Reuters.

On March 6, U.S. District Judge John Adams “threw out the railroad’s claim that the companies that made chemicals that spilled and owned tank cars that ruptured should share the cost of the cleanup,” the Associated Press reported.

NS is said to have spent more than $1.1 billion so far on cleanup costs, which continue to rise, according to the news agency, which noted that Environmental Protection Agency (EPA) officials “have said they expect the cleanup to be finished at some point later this year.”

Sharing expenses, as the railroad argued, with other companies—like Oxy Vinyls, which produced the vinyl chloride that crews released and burned from five tank cars just days after the derailment to reduce the threat of explosion, and railcar owner GATX—“might only delay the resolution of the lawsuit” that the EPA and the state of Ohio have filed against NS, according to the judge, the Associated Press reported. “He also said the railroad didn’t show that the derailment was caused by anything the other companies could control,” the news agency reported.

Adams wrote: “The court notes that such arguments amongst potential co-defendants does not best serve the incredibly pressing nature of this case and does not change the bottom line of this litigation; that the contamination and damage caused by the derailment must be remediated,” according to the Associated Press.

The National Transportation Safety Board has reported that “the crash was likely caused by an overheating bearing on a car carrying plastic pellets that caused the train to careen off the tracks,” according to the news agency. “The railroad’s sensors spotted the bearing starting to heat up in the miles before the derailment, but it didn’t reach a critical temperature and trigger an alarm until just before the derailment. That left the crew scant time to stop the train.”

NS and Oxy Vinyls declined to comment on the judge’s decision, according to the Associated Press, and GATX told the news agency: “We have said from the start that these claims were baseless. Norfolk Southern is responsible for the safe transportation of all cars and commodities on its rail lines and its repeated attempts to deflect liability and avoid responsibility for damages should be rejected.”

Meanwhile, U.S. District Judge Benita Yalonda Pearson in Youngstown, Ohio, rejected NS’s argument that “the lawsuit filed on behalf of roughly 500,000 area residents, businesses and property owners is blocked, or preempted, by federal laws that broadly regulate the railroad industry,” according to a March 13 Reuters report.

According to Reuters, “Pearson said the plaintiffs’ claims focus on Norfolk Southern actions that are either not subject to federal regulations or actions that explicitly violated federal regulations, and thus aren’t preempted.” The railroad and plaintiffs’ attorneys “did not immediately respond to requests for comment,” according to Reuters, which said the case is In Re: East Palestine Train Derailment, U.S. District Court for the Northern District of Ohio, No. 4:23-cv-00242.

According to the plaintiffs’ claim, NS is “liable for the contamination of their properties, lost business income, lowered property values and risks to their health due to the exposure to the toxic chemicals,” Reuters reported.

NS in a June 2023 motion to dismiss said “it is required as a common carrier under U.S. law to transport hazardous materials like those that spilled and caught fire, including vinyl chloride,” according to Reuters. “It also said the plaintiffs’ negligence, nuisance and strict liability claims are preempted by federal laws, including the Hazardous Materials Transportation Act and the Federal Railroad Safety Act. Those laws ‘expansively’ regulate railroad operations and bar the plaintiffs’ state law claims,” Reuters reported NS as saying.  

According to Reuters, NS shareholders, the U.S. government, nearby school districts, and the state of Ohio have also sued the Class I railroad.

Further Reading:

• NTSB to Hold Final Public Meeting on East Palestine Derailment
• NS Delivers 12-Month Progress Report on East Palestine Efforts