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Toxic train derailment in East Palestine spewed lawsuits, too

Cleanup continues on Feb. 24, 2023, at the site of a Norfolk Southern freight train derailment that happened on Feb. 3 in East Palestine, Ohio.
Matt Freed
Cleanup continues on Feb. 24, 2023, at the site of a Norfolk Southern freight train derailment that happened on Feb. 3 in East Palestine, Ohio.

More than a year after the toxic train derailment in East Palestine, numerous lawsuits have been filed in Ohio, Pennsylvania and by the federal government.

A train carrying toxic chemicals derailed in East Palestine on Feb. 3, 2023. Days later, officials on the ground decided to vent and burn the carcinogen vinyl chloride that was being transported in five tanker cars to prevent an explosion. Since then, residents have shared concerns about their health, the environment and the economy of the town.

"It wasn't a safe train."

In the aftermath of the derailment, residents from East Palestine and surrounding communities filed lawsuits and sought legal counsel.

Many of these individual suits claiming damages from the derailment were consolidated into one class action suit. Simmons Hanly Conroy is a national law firm known for taking on mesothelioma cases and is one of the firms working on the class action case.

“The suit is alleging that Norfolk and these additional defendants as well have responsibility for operating a train that hadn’t been inspected," Jo Anna Pollock, an attorney with Simmons Hanly Conroy, said. "It wasn’t a safe train.”

The suit,the first to get a trial date, is set to get underway Nov. 4 and is currently in the discovery phase, she said.

Although settling is on the table, Pollock's team is preparing for a full trial, which would also set a monetary value for the case.

“Sometimes you have to get – oftentimes actually we find you have to have the case ready for trial to actually force those discussions to be meaningful," she said.

The suit is still in an early stage, Pollock said, and she doesn't know yet how many residents will be joining the suit, just that it could be in the thousands.

Norfolk Southern declined to comment on any of the pending litigation.

Holding Norfolk Southern accountable

Ohio and the federal government are both suing Norfolk Southern as well.

Ohio sued Norfolk Southern in March, 2023, seeking a declaratory judgement holding Norfolk Southern responsible for the derailment, recovery of costs for the emergency response, damages to natural resources, property and the economy and present and future costs incurred by the state.

In a press conference in early February, 2024, Ohio Attorney General Dave Yost said there’s not a clear end in sight for the lawsuit due to a lack of information.

“At the end of the day, we need answers," he said, "and answers don’t come in a minute.”

The report the National Transportation Safety Board plans to release this summer will help answer some of the state’s questions, Yost said.

“That report is indispensable in understanding what went on and understanding what a just resolution will look like," he said.

The extent of the impact from the derailment is still unknown, he said.

"Our experience in so many other areas suggests there are downstream consequences that will only become clear over time, things that ought to be made right and resources will need to be available to assure that that happens," Yost said.

The U.S. Department of Justice also sued Norfolk Southern in March on behalf of the U.S. Environmental Protection Agency. The suit claims the railroad violated the Clean Water Act and is seeking penalties and an injunctive relief for unlawful discharge of hazardous materials. The EPA also declined to comment on this lawsuit.

Paying for testing

A group of six school districts in Beaver County, Pennsylvania, just over the state line from East Palestine, have filed a class action lawsuit against Norfolk Southern. The case is about paying for independent environmental testing and long-term health monitoring for students and teachers, attorney William Shinoff with Frantz Law Group, one of the firms working on the suit, said.

“Make sure that the party responsible pays for those costs and not the taxpayers," he said.

The U.S. and Ohio EPA have both maintained that the air and water in East Palestine and surrounding areas are safe. Residents still want more testing, Shinoff said.

"I think independent testing is absolutely necessary," he said, "because I think there's a lot of mistrust regarding what's been going on."

The case is still in the early stages, Shinoff said, but attorneys want to remain on the same timeline as the class action suit in Ohio.

"We're hoping we can work jointly with the litigation that's ongoing in Ohio to make sure that we can get this case litigated in an efficient manner and to a trial as soon as possible," he said.

Sharing the burden

Last summer, Norfolk Southern filed suit against seven companies connected to the derailment. They range from the owners of the vinyl chloride that was vented and burned after the derailment to the owners of the railcars themselves. The suit seeks for these other companies to share the burden of the derailment that’s largely been placed on Norfolk Southern.

All but one of the companies named in the lawsuit did not respond to a request for comment. However, in a written statement, Oxy Vinyls, the owner of the chemical vinyl chloride, said the vinyl chloride did not cause the derailment.

"The five railcars containing vinyl chloride did not breach in the derailment, remained intact, exhibited effective mechanical integrity and their pressure relief devices functioned as intended during the incident," the statement said.

Oxy Vinyls also claimed that Norfolk Southern and its contractors withheld "essential information" from East Palestine Fire Chief Keith Drabick, when as incident commander, he was making the decision to vent and burn the vinyl chloride.

"Norfolk Southern’s detonation of the railcars containing our product — contrary to the available information about the railcars’ intact condition or the product properties — appears to have been needlessly rushed to prioritize Norfolk Southern’s rail line operations," the statement said,

The company also made this claim at the NTSB investigative hearings in East Palestine last June.

Abigail Bottar covers Akron, Canton, Kent and the surrounding areas for Ideastream Public Media.