‘Entirely Avoidable’: Ohio Attorney General Sues Norfolk Southern Over East Palestine Train Derailment
There are 21 other lawsuits against Norfolk Southern. While most cases target Norfolk Southern, one group is lawsuit claims that the EPA has committed acts that have placed people in danger of violating their 14th amendment rights.
The chemical disaster that hit East Palestine, Ohio, due to a Norfolk Southern train derailment has essentially evaporated from the news…especially in the wake of the Silicon Valley Bank collapse.
Personally, I find it very troubling that bank executive concerns emanating from California and New York received immediate attention and promises of massive fiscal assistance. In contrast, the good people of Ohio had to wait weeks for a press conference.
So, I thought I would look at the response’s status and the consequences of the chemical contamination that spread due to the choice to do a controlled burn of the chemicals being shipped in the train that derailed.
On Tuesday, Ohio Attorney General Dave Yost announced a lawsuit against Norfolk Southern:
Ohio Attorney General Dave Yost filed a 58-count civil lawsuit in federal court today 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.
Yost wrote Norfolk Southern committed 58 violations, including 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, and Common Law Trespass.
There are currently 21 other lawsuits that have been filed due to the incident. Nearly all are suing Norfolk Southern, while one case targets the federal government. The complete list, with pdfs of the filings, can be found HERE.
The plaintiffs in one of the cases targeting Norfolk Southern are Frank Policaro, Carol Policaro, Robert Difonzo, Ronda Difonzo, Matthew Difonzo, Ryan McKenzie, and Doug Sheppard.
Frank Policaro is a firefighter who responded to the derailment. His wife was home with their grandchildren on Feb. 3. The claim alleges the Policaros have suffered health issues, prompting an emergency room visit.
McKenzie of Westmoreland County, Pa., operates a fishing expedition business in and around East Palestine. The claim alleges the derailment has hurt wildlife and impacted his fishing business.
Difonzos, who live in Steubenville, claim the derailment has hurt their property value and two family dogs became ill – one died – after drinking the home’s tap water. Sheppard of Leetonia said he has suffered medical issues.
Another group of plaintiffs is suing on behalf of the rescue animals that were severely impacted.
This lawsuit alleges numerous rescue animals suffered swollen faces, weeping eyes and stomach ailments. Also, one of the plaintiffs, a truck driver by trade, says he lost work due to illness and exhaustion.
A couple of the lawsuits are directed at how Norfolk Southern conducted its business.
The first lawsuit to detail the travel route for the train from Madison County, Illinois, to Conway, Pennsylvania, with the lightest cars loaded between heavy rear tankers and the front engine. It also claimed fire and smoke from the accident could be seen on weather radar.
A class action lawsuit has been filed that can be joined by any resident or business within 30 miles of the incident.
Lynch Carpenter partnered with the class-action law firm Seeger Weiss for this latest lawsuit.
It was filed on behalf of a Beaver County resident and business owner, but Iverson said a number of other clients have already signed on.
The lawsuit represents any impacted resident or business within 30 miles of the derailment site.
For this group of attorneys, the case is personal.
“We have an office in New Castle. We have employees in New Castle. One of our attorneys lives in New Castle, and so that’s within 20 miles of where the derailment occurred,” Iverson said.
The lawsuit alleges Norfolk Southern knew or should have known that a controlled burn of toxic chemicals would likely cause dangerous human exposures, contaminate properties, and force evacuations. It also says the railroad company failed to adopt safety measures that could have limited the derailment.
On the other hand, We the Patriots USA Inc. and Courtney Fish are suing the U.S. Environmental Protection Agency, EPA Administrator Michael Regan, Ohio EPA Director Anne Vogel, and Ohio Gov. Mike DeWine. The lawsuit claims officials provided residents with false assurance over the air and water quality and asserts there is a violation of the plaintiffs’ Fourteenth Amendment rights of equal protection.
Describing itself as dedicated to promoting constitutional rights, and environmental safety, We the Patriots alleges in the lawsuit that the EPA has committed acts that have placed people in danger of violating their 14th amendment rights to life, liberty, or property.
Unlike the more than dozen previously filed class-action lawsuits seeking damages from Norfolk Southern Railroad, this suit names the EPAs as defendants and asks the court to find the agencies engaged in a state-created danger to the community, and order that the agencies begin conducting what Patriots USA says is “industry standard occupational contaminant testing”.
The complaint also seeks an injunction that would bar the EPA from “providing the residents of East Palestine, Ohio and the surrounding areas with false assurances that the air and water quality in their communities is safe until such time as it is shown to be safe”.
I will keep an eye out for information, as many in our government and media would like to forget this disaster.
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
Deep pockets have been spotted.
In all fairness, the railroad was there first. The town built themselves around it.
Increased rail traffic, perhaps. A progressive process, clearly. An anthropogenic forcing, yes.
So, everyone wants what? To make transporting essential chemicals so expensive railroads bow out of the business and then how is it supposed to happen? Progressives have already been cramming down so many rules and regulations that trucking companies can’t find drivers and environmentalists won’t allow pipelines to be built.
NS has just under 20K miles of track, around 145K cars on those tracks daily.
a wheel bearing fail between hotbox detectors happens.
its a sad fact.
the decision to vent was not done by NS, and thats the real town killer here.
theres a whole bunch of fault that needs to be assigned here yet NS taking the brunt.
FWIW from 1994 to 2007 qualified to respond (IE in full suit with contained breathing apparatus which sucked in august in Maine due to humidity) to any train, ship (those the big ones) truck hazmat issue. .
lawsuits going after the money not the regulations set (can’t sue the feds…) that led to this.
shi*ty situation all around.
before NS could operate under a ruleset that allowed them to run with a bearing at a specific temp feds had to sign off on it.
oh yeah, spent few years in airline industry, stupid rules set by bureaucrats ran amock there also.
so take this post with grain of salt, take the bureaucracy findings with a gallon of salt.
think for yourself.
I am out of the game now.
no more having to test and train on hazmat, no more having to know CFR49 inside and out, no more having to teach volunteer depts how to don and use SCBA crap.
life is easier.
*rant off.
Please excuse the epistle, but this one will take a while to explain.
First, I’m a railfan, rail photographer and modeler. I’ve even had a scanner radio, where I can listen to the dispatchers speaking with train crews. I like trains and it is a Multiple discipline hobby. I wrote this for friends back on February 17, 2 weeks after the derailment.
So, let me go over what most likely happened: In short, some tank cars, filled with Vinyl Chloride, among other hazardous chemicals, were pushed by the momentum of the test of the train behind it piled into the derailed cars in front of them, a covered hopper that had stopped moving (hauls bulk items that you don’t want to get wet) due to a roller bearing failure on an axle. The bearing was over heating and failure was significant enough to set of the bearing temperature audible radio alarm transmission at a wayside detector the train had just passed. That alert states “Norfolk Southern, Detector Alarm (or Alert), Milepost XXX.X, name of the closest town or interlocking plant on the railroad line, North/east or South/west rail, Track X (to account for the possibility of multiple tracks), Axle Number (so the crew could walk back to check or test the bearing)” and the message will repeat at least once.
Besides this, the wayside broadcast also repeats in the train dispatcher’s office to the train dispatcher that is currently controlling that rail line. The Dispatcher immediately radios the train to confirm they 1) heard and acknowledged the alarm/alert and 2) to know exactly where they are going to stop (primarily to send mechanical help if needed).
In the old days of manned cabooses, before roller bearings had been mandated on every railroad car, the conductor riding in the caboose would have seen the smoke or smelled it and called the engineer asking him to stop the train and radioing the dispatcher to ask permission to stop and inspect the train, so the hot journal could be checked and determined whether it could make the journey to the closest siding, where the car could be set off for emergency repairs.
Concurrently, the train was slowing, by using Dynamic braking (where current is turned off of the electric traction motors on the locomotive. The unloaded spinning motors make electricity, which is turned into resistance heat – like baseboard electric heating – and a fan pushed the heat away. The load of generating electricity causes drag on the locomotive, slowing the train). After the wayside detector alarm went off, the engineer applied the air brakes to stop the train, and as the train probably uncoupled and derailed at this point, the brakes automatically went into an emergency application, where the air pressure is completely exhausted and must be recharged to move the train again. Apparently, this happened as the engineer contacted was in the radio with the dispatcher. The Dispatcher would need to let other trains in the area know to slow down or stop and not collide with this stopped train (if on a single track) or to be alert for personnel on the ground (if passing by on an adjacent track).
Wayside Bearing and Dragging Equipment detectors are placed every 20 miles on the Norfolk Southern. And since the previous one hadn’t gone off, we can surmise either the axle bearing wasn’t yet hot enough (critical) to trigger the alarm or the wayside detector had failed.
But, as surveillance video from security cameras in a town between (was it in East Palestine?) the last wayside detector and the one that sounded the alarm/alert showed the light (showed the underside of the car to be a that of a covered hopper) that indicates a fire in/on the axle bearing, meaning all of the remaining lubricant was rapidly burning off and the bearing would soon fuse (weld it self together by the heat of friction). After the fact, we know the problem. Apparently, the axle failed, causing a derailment, with cars behind piling into the damaged and derailed car.
The tank car was loaded with Vinyl Chloride, a monomer and flammable liquid, which, unless it is under pressure evaporates (boils) at 8 degrees Fahrenheit. As the tank car was punctured or it’s safety pressure seal failed, the liquid evaporated and quickly ignited (probably from the severely overheated and burning axle). As emergency workers got to the scene, they realized the impending danger of a BLEVE, a boiling liquid, evaporating vapor, explosion, which has the power to level blocks of houses, industries, etc., and make the surrounding area look like Dresden, Germany after it had been fire bombed. The railroad, the Federal Railroad Administration, Environmental Protection Agency, CHEMTREC, FEMA and State (both Ohio and Pennsylvania) Emergency and Environmental Agencies, State Patrol, National Guards and local chapters of the American Red Cross would have bern alerted. The immediate neighborhood would have been evacuated.
THEN the personnel, emergency, state and the railroad officials would choose the best and safest way to prevent an explosion and minimize loss of life, environmental, and property damage. Burning something off into the atmosphere usually is the least polluting option (when compared to poisoning the water table), so that is the method they chose. In this case, however, there was not a “good“ choice: It was going to be the lesser of all evil options.
Make no mistake: Environmental Damage Has Been Done (as the burning Vinyl Chloride turned into Phosgene Gas – a chemical weapon used in World War 1, that killed many soldiers on both sides) and while unlikely, It May Even Be Permanent.
Next, the tank car WAS NOT OWNED BY Norfolk Southern Corporation. Most railroad tank cars are not owned by Railroads, but instead by companies like GATX and UTLX or seed oil processors like Cargill or petroleum oil companies or Chemical Companies like E.I. Du Pont. If you see a rail car, note the Association of American Railroads 4 character markings to see who really owns that equipment.
CSX and Norfolk Southern (I’d guess the other “Big 4” railroads, BNSF, Union Pacific, Canadian National and Canadian Pacific/Kansas City Southern would have them as well) have a safety train that they run over their rail systems to train and educate fire departments, rescue squads and other emergency personnel on derailments and fires pertaining to rail equipment.
But, the biggest contributing factor to this accident that has yet to be determined, is Precision Scheduled Railroading. The fundamentals of this theory and business plan are correct, but the Unbending, Inflexible way that it is implemented and forced upon railroads that already operated very well, has turned Railroad’s Management Teams into addicts of low operating ratios (or else Hedge Funds that DEMAND certain levels of dividends and profits for their investors will stage shareholder election raids to place their own directors on a railroads’ board that will return them outstanding profits and dividends (Google – “CSX & The Children’s Fund,” Precision Scheduled Railroading and E. Hunter Harrison). Trains are now up to as much as 4 miles, but typically 2 miles in length, with Distributed Power, locomotives added into the trains in the middle and/or at the rear. Crews are down to 2 men per train and Union Pacific is experimenting with the Conductor/Brakeman working out of a pickup truck snd only the engineer on the train. If a third crew member had been aboard, riding in the “distributed power” locomotive, in the middle or at the end of the train, he or she would have smelled the overheated bearing and could stopped the train before before the bearing went critical).
A friend asked if it could have been sabotage. My answer was “Anything IS possible, but I would find it highly improbable. Even if someone shot and hit the bearing on a train car moving at 45 mph, there should be evidence of that.
Although all railroad cars are routinely inspected, a mechanical failure can happen to any car at any time on any railroad. But not having enough personnel on a multi-mile length land-barge of a train is a SAFETY ISSUE and one the railroaders threatened to strike over. But President Biden and his Democrat Congress chose to use his power to prevent the strike, giving railroad management and their board of directors exactly what they wanted at the risk of safety and environmental issues).
Biden and the Democrats OWN this accident. The next election will be apocalyptic to the Democrat Party, even if the voters forget the lousy economy he forced then into, but instead for these5 reasons:
1. Biden and the Congress stopping the Railroad Contract Negotiations by preventing a national strike that was largely based on Safety Concerns.
2. Biden’s failure to visit East Palestine, OH has the same optics as George W. Bush, touring/inspecting a New Orleans, flooded by Hurricane Katrina.
3. Biden failed to declare an Disaster/Emergency in East Palestine, OH. Only after people were outraged at that decision, did they reverse it.
4. Former President and current candidate Donald Trump visited East Palestine, OH, while the current Occupant of the White House chose to make a trip to Ukraine.
5. When SecTrans Pete Buttigieg finally chose to show up in East Palestine, OH, he didn’t do much other than posture and threaten the Norfolk Southern Corporation if they didn’t clean up the derailment site with fines of 3x the cost of the clean up. This is already a law that the railroads know about and it’s in their corporate best interests to be a good neighbor. Senator J.D. Vance was out there as soon as it was safe and Senator Sherrod Brown trailed him by darn near a week, but the installed leader, Slow Joe of the Poconos and the Vice-Woman still haven’t shown up.
Here is the link to the National Transportation Board’s report (that came out AFTER I wrote this for a friend):
https://www.ntsb.gov/investigations/Documents/RRD23MR005%20East%20Palestine%20OH%20Prelim.pdf
I don’t know that ANYONE could be blamed for an event that could happen anywhere, at any time.
Very informative
Thank you
Thank you so much for your very informed comment. I wondered if it might be safer to move these & other dangerous chemicals by ship instead of rail. Sure, it would harm sealife but maybe not humans so much?
Why would people start violating their own 14th amendment rights due to a train derailment? It seems needlessly self destructive.
I also meant to ask that perhaps there would be less accidents if chemicals were transported by ships?