The US Department of Justice filed a lawsuit late Thursday against Norfolk Southern Corp. and the Norfolk Southern Railway Co. unit. to seek damages for alleged environmental violations under the Clean Water Act and to hold the company responsible for cleanup costs in the February 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 releasing pollutants, oil and hazardous substances that contaminated local waterways and seeks a declaratory assessment on liability for past and future costs under the Act on comprehensive environmental measures, compensation and liability.
The lawsuit seeks to require the company to pay response costs, including fines of $64,61
8 per day per Clean Water Act violation, in addition to $44,808 per day or $2,232 per barrel of oil or unit of reportable amount of hazardous substances released .”The lawsuit follows a Feb. 21 order issued by the Environmental Protection Agency under the Comprehensive Environmental Response, Compensation and Liability Act that requires Norfolk Southern to perform and pay for all cleanup actions related to the derailment or face fines.
Thirty-eight railroad cars derailed and 12 more were damaged by fire in the derailment. Eleven of the cars that derailed had hazardous substances, including 115,580 liters of vinyl chloride. Another five 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’s senior executives, noting that “approximately eighty percent of NS Corporation’s executive compensation is based on performance measures,” including “increasing revenue, improving operational efficiency and reducing costs for its railroad subsidiaries.”
For the past four years, annual reports show “a stark contrast between the increase in operating income and the decrease in railroad operating costs,” the lawsuit states.
“The reduction 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 lawsuit.
The lawsuit also seeks an injunction requiring Norfolk Southern to take necessary steps “to ensure the safe transportation of oil and hazardous materials, hazardous substances, pollution and pollution” and to “remediate, mitigate and compensate for the harm to public health and the environment” caused by the environmental violations.
Since the derailment, numerous class-action lawsuits 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, ethyl hexyl acrylate and ethylene glycol monobutyl ether reached air, land and/or waterways, according to the lawsuit.
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 waterway from the site. The state of Ohio filed a lawsuit against Norfolk Southern on March 15, seeking compensation for damages to the state’s environment, economy and residents.
Since the Feb. 21 EPA order, about 9.3 million gallons of liquid wastewater and an estimated 12,932 tons of contaminated soil and solids have been transported off-site, the DOJ said in a statement Friday announcing the lawsuit.
The Department of Justice and the EPA are acting to seek justice for the people of East Palestine and to ensure that Norfolk Southern “bears the financial burden for the harm it has caused and continues to inflict on the community,” said Attorney General Merrick B. Garland. in the statement.
“Our job right now is to make progress every day to clean up the site, help residents whose lives were affected by the derailment, and invest in the future of East Palestine and the surrounding areas. We are working with urgency, led by the US EPA, and making daily progress. That is our focus and we will continue to work until we get it right,” a Norfolk Southern spokesman said in an email.
The company must respond to the lawsuit within 21 days.
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