Ohio Attorney General Dave Yost filed a 58-count civil lawsuit in federal court Tuesday seeking to hold Norfolk Southern financially responsible for the Feb. 3 train derailment in East Palestine that caused the release of over 1 million gallons of hazardous chemicals, “recklessly endangering” both the health of area residents and Ohio’s natural resources.
“Ohio shouldn’t have to bear the tremendous financial burden of Norfolk Southern’s glaring negligence,” AG Yost said. “The fallout from this highly preventable incident may continue for years to come, and there’s still so much we don’t know about the long-term effects on our air, water and soil.”
The company has repeatedly said that it will make the situation right, Yost noted, adding: “This lawsuit will make sure that Norfolk Southern keeps its word.”
The suit, filed in U.S. District Court of the Northern District of Ohio, cites the company’s escalating accident rate, which has risen 80% in the past 10 years. At least 20 Norfolk Southern derailments since 2015 have involved chemical discharges.
“The derailment was entirely avoidable and the direct result of Norfolk Southern’s practice of putting its own profits above the health, safety and welfare of the communities in which Norfolk Southern operates,” the lawsuit says.
Norfolk Southern is cited for numerous violations – 58 in all – of various federal and state environmental laws and Ohio Common Law. Generally speaking, the allegations of Norfolk Southern’s wrongdoing fall under:
- The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
- Ohio’s Hazardous Waste Law
- Ohio’s Water Pollution Control Law
- Ohio’s Solid Waste Law
- Ohio’s Air Pollution Control Law
- Common Law Negligence
- Common Law Public Nuisance
- Common Law Trespass
The Common Law violations include negligence counts relating to defects in the train and the train’s operation. The nuisance counts encompass the chemical releases into the air, public waterways and public land, and the trespass counts address the contamination of natural resources.
Overall, the lawsuit says, the violations resulted in an untold volume of hazardous pollutants being released into the air, water and ground, posing substantial, long-term threats to human health and the environment.
The complaint says releases from at least 39 rail cars have made their way into Sulfur Run, Leslie Run, Bull Creek, North Fork Little Beaver Creek, Little Beaver Creek, the Ohio River and/or some still-unknown Ohio waterways.
Likewise, the derailment “has caused substantial damage to the regional economy of the state of Ohio, its citizens and its businesses. The citizens of the region have been displaced, their lives interrupted and their businesses shuttered.”
Ohio is entitled to recover the lost taxes and other economic losses it has suffered, the lawsuit maintains. Yost seeks injunctive relief, civil penalties, costs, damages and court costs, including:
- A declaratory judgment holding Norfolk Southern responsible.
- Recovery of costs and damages under the CERCLA and Ohio law for emergency response.
- Repayment of damages under common law – notably, natural resource damages, property damages, and economic harm to the state and its residents.
- Repayment of costs under common law, including present and future costs incurred by the state in responding to the emergency, providing public services, preventing future harm to the environment and public health, restoring natural resources, and abating the nuisance.
- Civil penalties under state environmental laws.
- Repayment of court costs.
As a formality, the complaint names a jurisdictional minimum for federal damages of $75,000, although the damages will far exceed that minimum as the situation in East Palestine continues to unfold.
Additionally, Yost asks the court to require Norfolk Southern to conduct future monitoring of soil and groundwater at the derailment location, the surrounding areas and beyond – and to submit a closure plan to the Ohio EPA.
The lawsuit would also prohibit Norfolk Southern from disposing of additional waste at the derailment site and from polluting Ohio waters.