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DOJ sues Norfolk Southern over toxic train derailment in Ohio

The lawsuit could be costly to the railroad, seeking damages for a fiery disaster that prompted evacuations in East Palestine, killed fish and prompted a huge cleanup

This photo taken with a drone shows portions of a Norfolk Southern freight train that derailed Feb. 3 in East Palestine, Ohio, and was still on fire on Feb. 4. (Gene J. Puskar/AP)
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The Justice Department filed a major civil suit Friday against Norfolk Southern Railway after one of its trains carrying toxic chemicals derailed near the Ohio town of East Palestine on Feb. 3 and burst into flames.

The federal lawsuit, which could impose heavy costs on the railroad, comes less than two months after the train operated by Norfolk Southern derailed in the eastern Ohio border town, forcing East Palestinians from their homes, prompting reports of nausea and rashes and killing thousands of fish.

“No community should have to go through what East Palestine residents have faced,” said EPA Administrator Michael Regan in a statement Friday. He added that the legal action would ensure the railroad “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.”

The government is asking that Norfolk Southern be “held accountable” for polluting waterways and forced to pay penalties under the Clean Water Act in addition to the cost of the cleanup. The Environmental Protection Agency took control of the cleanup on Feb. 21.

The Justice Department is asking for penalties of $64,618 a day for every violation of the Clean Water Act as well as civil penalties of $55,808 a day or $2,232 per barrel of oil or hazardous substance. Costs could mount as each part of the train crash could invoke separate penalties.

Thirty-eight cars derailed in the accident; at least 11 of those were carrying hazardous materials, the department said in its suit. It said that exposure to those materials could cause an “increased risk of cancer; risks to fetal development; damage to organs like the liver, kidneys, lungs, and skin; and other health conditions.”

On Feb. 5, Norfolk Southern also vented and burned the contents of five rail cars containing vinyl chloride to prevent an explosion.

On its website, the company says that it has provided $27.9 million to the East Palestine community, but the cleanup is expected to cost far more than that.

“Our job right now is to make 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,” said Connor Spielmaker, a spokeswoman for Norfolk Southern. “We are working with urgency, at the direction of the U.S. EPA, and making daily progress. That remains our focus and we’ll keep working until we make it right.”

In Washington, Norfolk Southern CEO Alan Shaw has faced intense scrutiny. First he was grilled by the Senate Environment and Public Works Committee on March 9, then by the Senate Commerce, Science and Transportation Committee on March 22.

The National Transportation Safety Board and Federal Railroad Administration have also launched reviews of the railway’s safety record, citing a half-dozen serious incidents since December 2021, including three that left workers dead. Norfolk Southern lobbied against federal railroad regulations in the years before the derailment.

In the wake of the East Palestine disaster, Ohio’s two senators have introduced bipartisan legislation to increase safety standards for railroads. At the two Senate hearings in March, Shaw declined to endorse all provisions in this legislation, and the rail industry as a whole is expected to lobby for substantial changes. Some experts are far from surprised.

“Historically, preventing railroad accidents has rarely been a question of available technology; it has been the willingness of railroads to spend the money to implement the technology,” said Richard White, a history professor at Stanford University.

White noted the refusal of railroads in the late-19th century to put automatic brakes on freight trains. White said “if it is cheaper to kill people than prevent the deaths, railroads have often killed people until forced to do otherwise.”

In its complaint Friday, the Justice Department alleged that Norfolk Southern creates incentives for executives to cut safety and maintenance spending, in favor of increasing returns. It cited the company’s annual reports showing that as much as 80 percent of executives’ pay is tied to performance.

“These financial metrics were selected to motivate and reward NS Corporation’s executives for increasing revenue, improving operating efficiency, and reducing expenses of its railroad subsidiaries,” the complaint said.

At the close of trading Friday, Norfolk Southern’s stock was $211.91 a share, up 1.47 percent over the previous day, after dropping 16 percent since the Feb. 3 accident.

The Ohio train derailment and chemical spill

The latest: DOJ is also suing Norfolk Southern over the toxic train derailment. Senators questioned Norfolk Southern’s CEO on rail safety records as Ohio is suing the freight company. In February, the National Transportation Safety Board released a preliminary report on the Ohio train derailment.

What are the health risks of the chemical spill? One toxic gas, vinyl chloride, was burned after the derailment, sending various toxins and chemicals into the air. The EPA is handling the disaster response.

The politics: Amid a partisan divide over the disaster response, former president Donald Trump and Transportation Secretary Pete Buttigieg visited the derailment site.

Who is impacted? The Biden administration is taking heat for not doing enough to help, while Ohio residents are angry after Norfolk Southern backed out of a town hall addressing the response. The derailment also killed more than 43,000 aquatic animals in the area. Here’s what to know about the derailment’s toxic plume.