East Palestine Train Derailment: Profits Over Safety
By: Jacob Regan
The U.S. Government is suing Norfolk Southern for environmental and public health damages caused by its train derailment in Ohio. On the evening of Friday, February 3, 2023, a train owned by Norfolk Southern derailed in East Palestine, Ohio. Fifty of the train cars derailed or were affected by the derailment, and 20 of which contained hazardous substances.[1] Such substances included vinyl chloride, combustible liquids, butyl acrylate, and benzene residue.[2] Early morning Saturday, February 4, around 2:00 A.M. EST, the EPA arrived on-site to assist in clean-up.[3] On February 21, the EPA issued a unilateral administrative order, commanding Norfolk Southern to perform additional cleanup duties.[4] On February 25, a few weeks after citizens who evacuated the area returned, the EPA and other federal agencies began conducting outreach to East Palestine residents, including opening a support hotline.[5] Throughout the rest of February and March, the EPA continued interacting with the community and monitoring the air, water, and soil/sediment in the town and nearby, while pressuring Norfolk Southern to increase its measures.[6][7][8][9][10]
On March 30, the EPA–alongside the U.S. Attorney’s Office for the Northern District of Ohio and the Environment and the U.S. Department of Justice’s Natural Resources Division–filed a complaint against Norfolk Southern.[11] The case is a civil action, brought under Sections 309 and 311 of the Clean Water Act (CWA), and Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[12]
Clean Water Act Provisions
Section 309(b) of the CWA permits the EPA to file civil actions and obtain relief (including injunctions) against people who violate Section 301 of the CWA.[13] Section 301 prohibits people from discharging pollutants into waters of the United States without obtaining a permit (this includes an NPDES permit or a dredge and fill permit).[14] Section 311 prohibits people from discharging certain amounts of oil or hazardous substances into waters of the United States.[15] Vinyl chloride and naphthalene are pollutants under the CWA.[16]
The EPA defined “waters of the United States” in a 2023 EPA ruling. The definition first includes waters involved in or possibly involved in trade between states, and waters that cross state borders, such as the Mississippi River.[17] The definition also encompasses tributaries to the waters mentioned before—one famous example is the San Juan river.[18] Finally, the EPA also considers a body of water to fit within the definition if it, while remaining within state borders, is relatively permanent, still, or flows with a continuous surface linked to the waters first mentioned.[19] Alternatively a body of water fulfills this definition if it—by itself or in combination with other nearby bodies of water—significantly affects the nature of the waters involved in trade between states, or waters that cross state borders.[20] An example for these last two examples is a creek that flows all year into the Mississippi River, or a small river that can carry chemicals, diseases, or sludges into the Mississippi, resulting in the bigger river’s pollution.
In the complaint, the EPA accuses Norfolk Southern of violating Section 301 and 311 of the CWA. The train cars discharged vinyl chloride, naphthalene, and petroleum when they derailed.[21] Various derailed cars also discharged oil, fuel additives, and liquified petroleum gas residue.[22] This, combined with firefighter and Norfolk Southern cleanup efforts led to a chemical cocktail to enter Sulphur Run, Leslie Run, Bull Creek, the North Fork of the Little Beaver Creek, Little Beaver Creek, and the Ohio River.[23] The EPA asserts that this occurred via discharges to a tributary and Sulphur Run, as well as other means.[24] They conclude that these various bodies of water fit the legal definition of “waters of the United States”.[25] Under this reasoning, the EPA believes Norfolk Southern violated the CWA.
Superfund Provisions
Section 107 of CERCLA allows the United States government to hold the owner of a facility liable for all costs, plus interest, of removal or remedial actions made in response to the release of hazardous substances stored at said facility.[26] These not only include past costs, but future costs, too.[27] These hazardous substances include substances deemed hazardous under the CWA, like vinyl chloride.[28] Butyl acrylate and benzene are also considered hazardous substances under CERCLA.[29] A “facility” under CERCLA includes a storage container or rolling stock where a hazardous substance is stored.[30]
Various governmental agencies–including local, state, and federal agencies (such as the EPA through its Superfund Technical Assessment and Response Team)–mobilized to the area and engaged in evacuation and firefighting efforts, which required specific materials.[31] EPA has and continues to conduct sampling and monitoring around the site, including lab work, and then provides the data to the public.[32] EPA also monitors Norfolk Southern’s cleanup efforts.[33] Currently, the EPA has overseen the removal of 9.2 million gallons of liquid wastewater and 12,932 tons of contaminated soils and solids.[34] These actions incurred costs and will continue to do so. The EPA argues that Norfolk Southern is the owner of the train whose derailment caused a release of hazardous substances and that the response to that release has incurred, and will continue to incur, costs for the United States government.[35] Under this argument, Norfolk Southern is obligated to pay for any and all costs of the response under CERCLA.
The EPA seeks various remedies from Norfolk Southern. These include civil penalties for each day (or per barrel, in terms of the oil) they violate the CWA, a declaratory judgment from the court declaring the company liable for costs under CERCLA, injunctions to ensure the safety of future transports, and injunctions to remedy, mitigate, and offset the harm to people and the environment.[36]
As of this writing, Norfolk Southern has not answered the complaint.[37]
The Aftermath
It is too early to tell what the true extent of the damage is to East Palestine and the country beyond. In the short term, over 43,000 marine creatures died because of the release into the nearby waters.[38] Animal caretakers reported that the animals they cared for were seriously ill.[39] After the derailment, both civilians and government investigators involved in the cleanup experienced symptoms of varying severity, from sore throats and nausea to upper respiratory infections.[40][41] The most striking and iconic imagery to come from this disaster is the Vesuvian-like plume rising over the small town as authorities set the vinyl chloride ablaze. Combustion of vinyl chloride produces the toxic gas phosgene.[42] Many of the symptoms experienced by those in East Palestine are symptoms of exposure to phosgene (whose previous use involved chemical warfare), which exposure to can lead to adverse side effects on the respiratory system.[43]
On April 10, a vehicle hauling 40,000 pounds of contaminated soil crashed and spilled its load.[44] Though authorities say they contained the spill, this shows that the road to cleanup will be a rough one. With contaminated water, soil, and air, one can only hope the measures the government take are enough to return East Palestine and the surrounding area to some sense of its former self.
[1] U.S. Environmental Protection Agency, Background: East Palestine, Ohio Train Derailment Emergency Response, https://www.epa.gov/oh/background-east-palestine-ohio-train-derailment-emergency-response (accessed April 4, 2023).
[2] Sydney Stalnecker, Norfolk Southern Releases List of Chemicals Carried by Derailed Train, WFMJ (February 6, 2023), https://www.wfmj.com/story/48313434/norfolk-southern-releases-list-of-chemicals-carried-by-derailed-train.
[3] Id.
[4] U.S. Env’t Prot. Agency, Admin. Order, CERCLA Docket No. V-W-23-C-004, 13-19 (Feb. 21, 2023).
[5] U.S. Env’t Prot. Agency, Federal Interagency Teams to Canvass East Palestine Homes Impacted by Derailment; EPA Launches Hotline to Support Residents, 1 (Feb. 24, 2023), https://www.epa.gov/system/files/documents/2023-02/East%20Palestine%20Joint%20information%20Update%20%202_24_23_0.pdf.
[6] U.S. Env’t Prot. Agency, Air Sampling Data: East Palestine, Ohio Train Derailment (Last updated April 6, 2023) https://www.epa.gov/oh/air-sampling-data-east-palestine-ohio-train-derailment.
[7] U.S. Env’t Prot. Agency, Water Sampling Data: East Palestine, Ohio Train Derailment (Last updated April 6, 2023) https://www.epa.gov/oh/water-sampling-data-east-palestine-ohio-train-derailment.
[8] U.S. Env’t Prot. Agency, Soil and Sediment Sampling Data: East Palestine, Ohio Train Derailment (Last updated April 6, 2023), https://www.epa.gov/oh/soil-and-sediment-sampling-data-east-palestine-ohio-train-derailment.
[9] U.S. Env’t Prot. Agency, Community Open Houses in Ohio And Pennsylvania Thursday, March 16, 1 (Mar. 13, 2023), https://www.epa.gov/system/files/documents/2023-03/East%20Palestine%20Information%20Update%203.13.23.pdf.
[10] U.S. Env’t Prot. Agency, Clean-Up Efforts Continue Following Train Derailment in East Palestine; Norfolk Southern Agrees to Provide Additional Financial Assistance to Residents, 1 (Mar. 6, 2023), https://www.epa.gov/system/files/documents/2023-03/LINK%20UPDATED%20East%20Palestine%20Information%20Update%203-6-23-508.pdf.
[11] News Release, Env’t Prot. Agency, EPA and Justice Department File Complaint Against Norfolk Southern Railway Company for Unlawful Discharge of Pollutants and Hazardous Substances in East Palestine Derailment (March 31, 2023), https://www.epa.gov/newsreleases/epa-and-justice-department-file-complaint-against-norfolk-southern-railway-company.
[12] Complaint at 2, United States of America v. Norfolk S. Ry. Co., 4:23-cv-00675 (2023).
[13] Clean Water Act § 309(b), 33 U.S.C. § 1319(b).
[14] Id. at § 301, 33 U.S.C. § 1311.
[15] Id. at § 311, 33 U.S.C. § 1321(b)(3).
[16] Toxic Pollutants, 40 C.F.R. § 401.15 (1981).
[17] Definition of Waters of the United States, 40 C.F.R. § 120.2(a)(1) (2023).
[18] Id. at § 120.2(a)(3)
[19] Id. at § 120.2(a)(5)(i).
[20] Id. at § 120.2(a)(5)(ii).
[21] Complaint at 11, United States of America v. Norfolk S. Ry. Co., 4:23-cv-00675 (2023).
[22] Id. at 7.
[23] Id. at 11.
[24] Id.
[25] Id. at 22-24.
[26] Comprehensive Environmental Response, Compensation, and Liability Act § 107, 42 U.S.C. § 9607.
[27] Id., 42 U.S.C. § 9613(g)(2).
[28] Id., 42 U.S.C. § 9601(14).
[29] Id.
[30] Id., 42 U.S.C. § 9601(9).
[31] Complaint at 8-9, United States of America v. Norfolk S. Ry. Co., 4:23-cv-00675 (2023).
[32] Id. at 10.
[33] Id.
[34] EPA, supra note 10.
[35] Complaint at 26, United States of America v. Norfolk S. Ry. Co., 4:23-cv-00675 (2023).
[36] Id. at 26-27.
[37] Docket: 4:2023cv00675, Justia (last visited Apr. 7, 2023), https://dockets.justia.com/docket/ohio/ohndce/4:2023cv00675/296202.
[38] Paige Bennett, East Palestine Train Derailment Killed More Than 43,000 Fish and Animals, Officials Say, USA TODAY (Feb. 24, 2023), https://www.usatoday.com/story/news/nation/2023/02/24/east-palestine-train-derailment-fish-animal-deaths/11337404002/.
[39] Kelly Kennedy, University Student Finds Thousands of Fish, Other Aquatic Life Dead in East Palestine Creeks, CLEVELAND 19 NEWS (Feb. 20, 2023), https://www.cleveland19.com/2023/02/21/university-student-finds-thousands-fish-other-aquatic-life-dead-east-palestine-creeks/.
[40] Chris Cuomo, Liz Jassin, Residents Still Reporting Illnesses in East Palestine, NEWSNATION (Mar. 15, 2023), https://www.newsnationnow.com/cuomo-show/residents-still-reporting-illnesses-in-east-palestine/.
[41] Jared Gans, CDC Teams Studying East Palestine Health Risks Got Sick During Investigation, THE HILL (Mar. 31, 2023), https://thehill.com/policy/healthcare/3927743-cdc-teams-studying-east-palestine-health-risks-got-sick-during-investigation-cnn/.
[42] U.S. Dept. of Com. Nat’l Oceanic and Atmospheric Admin., CAMEO Chemicals, Vinyl Chloride, 1 (June 1999).
[43] U.S. Env’t Prot. Agency Off. of Chem. Safety and Pollution Prevention, Fact Sheet, Phosgene, 1-2 (April 1992, updated Jan. 2000).
[44] U.S. Env’t Prot. Agency, Updates from East Palestine Response, 1 (April 10, 2023), https://www.epa.gov/system/files/documents/2023-04/east-palestine-information-update-4-10-23.pdf.
