East Palestine: US Justice Department sues Norfolk Southern over February train derailment

The US Justice Department filed a civil lawsuit against Norfolk Southern Thursday, alleging violations of the Clean Water Act (CWA) and seeking damages over the train derailment and subsequent environmental disaster in East Palestine, Ohio, in February.

The Norfolk Southern Railway Company and parent company Norfolk Southern Corporation are both named in the suit, court records show. The DOJ filed the lawsuit on behalf of the Environmental Protection Agency.

The DOJ says the lawsuit seeks “injunctive relief, cost recovery, and civil penalties” for violations of the CWA, including discharges of pollutants and hazardous materials into waters, and under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Norfolk Southern says its focus is on making “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,” according to a statement sent to CNN from the company’s spokesperson, Connor Spielmaker, on Friday.

“We are working with urgency, at the direction of the US EPA, and making daily progress,” the statement said. “That remains our focus and we’ll keep working until we make it right.”

On February 3, a Norfolk Southern train derailed, igniting a dayslong inferno, spewing poisonous fumes into the air, killing thousands of fish and leaving residents to wonder if it was safe to live in East Palestine, Ohio.

The fiery derailment prompted fears of a catastrophic explosion of vinyl chloride – a highly flammable chemical linked to an increased risk of cancer. After a mandatory evacuation order, crews released vinyl chloride into a trench and burned it off – averting an explosion but spawning new health concerns.

Officials said tests showed that the air and municipal water were safe and allowed residents to return home, but some have reported a variety of new health problems including rashes, nausea, bloody noses and trouble breathing.

While studying the possible health impacts from the train derailment, seven US government investigators also briefly fell ill in early March, the US Centers for Disease Control and Prevention confirmed to CNN on Thursday.

“Symptoms resolved for most team members later the same afternoon, and everyone resumed work on survey data collection within 24 hours. Impacted team members have not reported ongoing health effects,” a CDC spokesperson said in a statement.

The train operator Norfolk Southern must handle and pay for all necessary cleanup, according to the Environmental Protection Agency. The company has sent some hazardous waste out of state – fueling more questions about safety.

The DOJ isn’t the only one filing a lawsuit against the railroad. The state of Ohio also filed a 58-count federal lawsuit against the rail company on March 14, saying Norfolk Southern violated numerous state, federal and Ohio common laws and violated the state’s CERCLA act.

Norfolk Southern has set up a new web page that summarizes community impact efforts. Spielmaker said it “provides a 7-day look ahead and is updated daily and outlines Norfolk Southern’s continued environmental remediation efforts in concert with state and federal authorities.”

“When a Norfolk Southern train derailed last month in East Palestine, Ohio, it released toxins into the air, soil, and water, endangering the health and safety of people in surrounding communities,” Attorney General Merrick B. Garland said in a statement. “With this complaint, the Justice Department and the EPA are acting to pursue justice for the residents of East Palestine and ensure that Norfolk Southern carries the financial burden for the harm it has caused and continues to inflict on the community.”

The Justice Department, citing annual company reports, alleges in the suit Norfolk Southern both increased operating income and dropped operating costs over the past four years, including making “reductions in spending to repair, service, and maintain locomotives and freight cars, perform train inspections, and pay engine crews and train crews.” The suit also alleges that these measures are a “focus” of the compensation of the company’s executives.

The lawsuit claims when the train derailed and cars carrying hazardous materials were breached, the dispersion and subsequent combustion of those materials released toxic chemicals into the “air, soil, groundwater, and waterways.”

The DOJ says seven local waterways including the Ohio River were contaminated as a result.

The Ohio Department of Natural Resources reported “thousands of aquatic animals were killed in the five-mile span of waterway from the Site” to the confluence of two creeks the DOJ described as contaminated, the lawsuit says.

DOJ is asking for $64,618 per day, per violation of the CWA and $55,808 per day or $2,232 per barrel of oil or unit of hazardous substance, per violation of the CWA – but it was not immediately clear from the suit how many days the DOJ considered the violation to be applicable.

They’re also seeking a declaration of liability against the company for response costs; a mandated increase in safety precautions by Norfolk Southern when transporting hazardous materials; and for the railroad to “remedy, mitigate, and offset” the environmental damage and public health issues that have arisen as a result of the derailment, court documents show.

In early March, Norfolk Southern CEO Alan Shaw told a US Senate hearing that the company would “clean the site safely, thoroughly, and with urgency.”