DOJ sues Norfolk Southern for “unlawful discharge of pollutants” after East Palestine wreck

Legal troubles deepened for Norfolk Southern Co. today when the U.S. Department of Justice announced it had sued the Atlanta-based railroad for “unlawful discharge of pollutants and hazardous substances” following a Feb. 3 derailment of tank cars in East Palestine, Ohio. 

The Department of Justice (DOJ) filed its suit on behalf of the U.S. Environmental Protection Agency (EPA) and seeks penalties and injunctive relief for the spill under the Clean Water Act, and declaratory judgment on liability for past and future costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

This latest step follows an array of legal and legislative fallout that also includes a lawsuit brought by the state of Ohio, an investigation by the U.S. Department of Transportation, and a bipartisan bill in Congress called the “Rail Safety Act of 2023.” 

“From the very beginning, I pledged to the people of East Palestine that EPA would hold Norfolk Southern fully accountable for jeopardizing the community’s health and safety,” said EPA Administrator Michael S. Regan. “No community should have to go through what East Palestine residents have faced. With today’s action, we are once more delivering on our commitment to ensure Norfolk Southern cleans up the mess they made and pays for the damage they have inflicted as we work to ensure this community can feel safe at home again.”

Norfolk Southern has not yet released any public comment about the latest case. But rail trade group the Association of American Railroads (AAR) has recently released a list of safety actions taken by that group and by Class 1 railroads individually. “Even though data show railroads are safe, the industry believes that the East Palestine derailment earlier this year, and its aftermath, require railroads and freight shippers alike to lead with actions that restore trust and will further improve freight rail safety,” the AAR said in a statement.

According to the DOJ, the chemicals released in the derailment and subsequent pile of burning rail cars included vinyl chloride, ethylene glycol monobutyl ether, ethylhexyl acrylate, butyl acrylate, isobutylene, and benzene residue. Residents living near the derailment site were evacuated immediately after the wreck, but the fire continued to burn for several days and Norfolk Southern subsequently vented and burned five rail cars containing vinyl chloride in a flare trench, resulting in additional releases of the hazardous material.

Since that time, the EPA has overseen Norfolk Southern’s cleanup work, which has now collected and removed material totaling some 9.2 million gallons of liquid wastewater and 12,932 tons of contaminated soils and solids.