Update on the East Palestine Train Derailment

by Addison Caruso, Esq. - Staff Attorney at Fair Shake ELS

Much has happened in the East Palestine community in the past year and a half since the Norfolk Southern train derailment – lawsuits have been filed, government investigations were carried out, and laws were proposed in response.    Many nonprofit organizations, including Fair Shake, have worked to help the community deal with the accident and the collective response.  As a nonprofit law firm, Fair Shake’s primary goal in reaction to the derailment has been to educate the community on the legal response.  We’ve done this by helping to hold free legal clinics for community members, by providing advice to responding organizations, and by giving general legal education about the accident.   In keeping with Fair Shake’s legal education goals and given the scope of the response to date, we believe that a general update on the derailment is in order.  As such, here is where things stand as of August 2, 2024:

Summary

Around 9:00 pm on February 3, 2023, a Norfolk Southern freight train derailed in East Palestine, Ohio.[1] Of the 150 train cars, 50 were affected by the derailment, with the rest being uncoupled and removed from the scene.[2] Approximately twenty of those derailed cars contained hazardous materials, such as vinyl chloride.[3] Following the derailment, acting on information from Norfolk Southern and its contractors that a dangerous chemical reaction was occurring within a vinyl chloride train car, the incident commander managing the response made a decision to vent and burn the tanks obtaining vinyl chloride.[4] It is still unclear what lasting health effects this decision had on the surrounding community, but following the derailment, residents have reported a wide variety of health symptoms such as eye irritation, skin lesions, brain fog, and raised concerns about cancer.[5] Following the derailment, studies were undertaken surrounding the accident, legislation was proposed to prevent similar derailments from occurring in the future, and lawsuits were filed by both individuals and the federal/state governments against Norfolk Southern. Updates on each of these responses to the derailment are detailed below.

National Transportation Safety Board Investigation

Following the derailment, the National Transportation Safety Board (NTSB)  conducted an investigation into Norfolk Southern’s conduct that specifically focused on: (1) communications about hazards and emergency responder preparedness for the initial response to the derailment; (2) circumstances that led to the decision to vent and burn the five vinyl chloride tank cars; (3) the types or patterns of freight car wheel bearing failure, such as overheating, wear, or material defects, and failures of the wayside detection systems; and (4) tank car derailment damage, crashworthiness, and hazardous materials package information.[6] During this investigation, NTSB staff spoke with representatives from Norfolk Southern, held investigative hearings, and reviewed various reports published during and after the vent burning.[7]

As of July 5, 2024, the NTSB has not published its final report but has released an abstract of the report.[8] One of the more notable findings from the report is that the venting and burning of the five train cars carrying the toxic chemical vinyl chloride, which occurred three days after the derailment, was unnecessary and released 115,000 gallons of vinyl chloride into the environment.[9] They concluded that the decision to vent and burn rather than pursue alternative methods was “based on incomplete and misleading information provided by Norfolk Southern” and that they withheld critical data and context about the state of the train cars from the governor of Ohio and first responders.[10] Furthermore, Jennifer Homendy, the NTSB chair, said that Norfolk Southern “demonstrated complete disregard” for the rules and regulations put in place to protect the integrity of the investigation and described the company’s behavior as “unprecedented, reprehensive, unethical and inappropriate.”[11]  As of August 2, 2024,  the final report has not yet been published but should be in the next few weeks.[12]

Department of Justice and Ohio Attorney General Lawsuits

The U.S. Department of Justice (DOJ) filed a lawsuit against Norfolk Southern (Case No. 4:23CV00675) along with the Ohio Attorney General’s (AG) office (Case No. 4:23CV00517). Both cases were consolidated under the AG’s case in the Northern District of Ohio.

Department of Justice Lawsuit: On May 23, 2024, the DOJ and EPA announced a settlement valued at over $310 million with Norfolk Southern.[13] In the settlement, Norfolk Southern agreed to address and pay for the damage caused by the February 3, 2023, train derailment.[14] The settlement, subject to court approval, requires Norfolk Southern to pay a $15 million civil penalty, improve rail safety, pay for health monitoring and mental health services for the surrounding communities, and fund long-term environmental monitoring.[15]Specifically, Norfolk Southern has agreed to:[16]

·      Spend $235 million for all past and future cleanup costs;

·      Pay $25 million for a 20-year community health program;

·      Pay $15 million to implement a long-term monitoring of groundwater and surface water;

·      Pay $15 million for a private drinking water monitoring fund;

·      Implement a waterways remediation plan with an estimated budget of $6 million in Leslie Run and Sulfur Run to address historical pollution and reduce non-point source pollution through infrastructure upgrades and stormwater management; and

·      Pay $175,000 for natural resource damages to be used by the United States to restore, rehabilitate, replace, or acquire the natural resources injured because of the derailment.[17]

Additionally, the consent decree requires Norfolk Southern to work on projects that will improve the safety of transporting hazardous materials by rail, which includes the installation of additional devices to detect overheated wheel bearings early enough to prevent derailment.[18] These enhancements are estimated to cost Norfolk Southern approximately $200 million.

Following the settlement, the DOJ set aside time to answer the public’s questions about the proposed settlement on July 15 and 16 at the EPA Welcome Center in East Palestine located at 25 N. Market St., East Palestine, OH 44413.[19] The EPA also allowed members of the public to comment on the settlement up until August 2, 2024.[20] The DOJ will read all the comments it receives and consider whether any changes to the settlement are necessary, and tell the Court why it decides to make a change, or not, based on the comments.[21] The full settlement is available here.

Ohio Attorney General Lawsuit: On May 23, 2024, the Ohio Attorney General announced, shortly after the DOJ and EPA announcement, that they would not be participating in the settlement out of concerns that it could undercompensate the residents of East Palestine and wanted to allow the NTSB to complete its investigation into the circumstances leading up to the derailment and the decision-making process which resulted in the “vent and burn” of the derailed tanker cars.[22] Recently, on June 15, 2024, Ohio Attorney General Dave Yost held a community discussion in East Palestine to provide updates on the case and discuss next steps.[23]Specifically, the discussion was meant to “gauge the public’s reaction to the U.S. government’s settlement, direct whether or not Ohio will object to it in court and to help steer any negotiation the state may have with the railroad concerning its own lawsuits.”[24] He reiterated that Ohio “isn’t interested in settling” and that one of his priorities was to get Norfolk Southern to agree to create a health fund for the community.[25] It is unclear whether a settlement between Norfolk Southern and the state of Ohio will occur in the near future.

Class Action Lawsuits: Following the derailment, numerous class action lawsuits were filed against Norfolk Southern on behalf of individuals in the East Palestine community. They were consolidated under theFeezle lawsuit (Case No. 4:23CV0242) in the Northern District of Ohio. On April 9, 2024, Norfolk Southern and the attorneys representing the class actions suits agreed to a Settlement where Norfolk Southern would pay $600 million in total to residents and their attorneys.[26]  Approximately 190,000 households are entitled to the funds along with 15,000 businesses.[27] The households that were closest to the derailment site will likely receive about $70,000, but payments will vary depending on family size, extent of property damage, whether a resident was permanently relocated, etc.[28] The amount a family receives will also depend on whether they have received any previous payments from Norfolk Southern.[29]

This Settlement, if approved by the court, would resolve all class action claims within a 20-mile radius from the derailment and resolve personal injury claims for all individuals within 10-miles of the derailment.[30] The Settlement does not include or constitute any admission of liability, wrongdoing, or fault.[31] Individuals in East Palestine must have filed a request for an exclusion from the settlement or objected to its terms by July 1, 2024.[32] To receive money under the Settlement, an individual must submit a claim by August 22, 2024.[33] If the Settlement applies to you, you can submit an individual claim here. If an individual does not submit a claim, or file an exclusion or objection to the settlement, they will not receive any benefits from the Settlement and will be bound by the terms of the Settlement.[34] They will not, however, give up any past, present, or future personal injury claims.[35] On September 25, 2024, a hearing will be in court held to determine if the Settlement is a fair, reasonable, and adequate resolution, and, if it is determined to be so, the Settlement will be finalized.[36] More information about the Settlement can be found here: https://www.eastpalestinetrainsettlement.com/.

Federal Legislation: Introduced in March 2023, less than a month after the derailment, Senators Brown (D-OH), Vance (R-OH), Fetterman (D-PA), Casey (D-PA), Rubio (R-FL), and Hawley (R-MO),  introduced in the Senate the Railway Safety Act (S.576).[37] This bill, if passed, would increase safety requirements for all rail carriers and trains transporting hazardous materials, like the train that passed through East Palestine.[38] Specifically, it would require that all rail carriers or shippers that carry hazardous materials:[39]

·      Provide state emergency response commissioners with advanced notice and information about the hazardous materials;

·      Reduce blocked rail crossings; and

·      Require railway companies to comply with certain requirements regarding train length and weight specifications, track standards, speed restrictions, and response plans.

The bill also establishes requirements for wayside defect detectors, which detect defects and failures along the tracks, such as wheel bearing failures, while increasing fines for noncompliance with safety regulations.[40]Additionally, the bill increases Department of Transportation rail car inspection regulations, requires a minimum two-person crew for certain freight trains, and provides funding for research and development to improve railway safety, among other provisions.[41] The bill has been referred to out of its Senate committee but as of August 2, 2024, the Senate has not held a full vote on the bill because it likely does not have the sixty votes needed to overcome a Senate filibuster.[42]

[1] https://www.epa.gov/east-palestine-oh-train-derailment/background

[2] https://www.epa.gov/east-palestine-oh-train-derailment/background

[3] https://www.epa.gov/east-palestine-oh-train-derailment/background

[4]https://www.ntsb.gov/investigations/Documents/East%20Palestine%20Ohio%20Board%20Meeting%20Summary%20with%20Amendments.pdf (page 1)

[5] https://www.cbsnews.com/news/east-palestine-ohio-train-derailment-residents-health-issues-norfolk-southern/

[6] https://www.ntsb.gov/news/events/Pages/East-Palestine-Hearing-Event.aspx

[7] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/; https://data.ntsb.gov/Docket/?NTSBNumber=RRD23MR005

[8] https://www.ntsb.gov/news/press-releases/Pages/NR20240625.aspx

[9] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/

[10] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/

[11] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/

[12] https://www.ntsb.gov/news/press-releases/Pages/NR20240625.aspx

[13] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[14] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[15] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[16] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[17] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[18] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[19] https://www.epa.gov/system/files/documents/2024-07/env-enforcement-3764639-v3-east-palestine-fact-sheet-final_7-8.pdf (page 1).

[20] https://www.epa.gov/system/files/documents/2024-07/env-enforcement-3764639-v3-east-palestine-fact-sheet-final_7-8.pdf (page 1).

[21] https://www.epa.gov/system/files/documents/2024-07/env-enforcement-3764639-v3-east-palestine-fact-sheet-final_7-8.pdf

[22] https://www.ohioattorneygeneral.gov/Media/News-Releases/May-2024/Senator-Vance-and-Attorney-General-Yost-React-to-E

[23] https://www.morningjournalnews.com/news/local-news/2024/06/ohio-attorney-general-hears-from-east-palestine-residents/

[24] https://www.morningjournalnews.com/news/local-news/2024/06/ohio-attorney-general-hears-from-east-palestine-residents/

[25] https://www.morningjournalnews.com/news/local-news/2024/06/ohio-attorney-general-hears-from-east-palestine-residents/

[26] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 3)

[27] https://www.post-gazette.com/local/region/2024/06/30/east-palestine-settlement-train-derailment-ntsb/stories/202406280119

[28] https://www.post-gazette.com/local/region/2024/06/30/east-palestine-settlement-train-derailment-ntsb/stories/202406280119

[29] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 22)

[30] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (pages 28–29).

[31] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 30).

[32] https://www.eastpalestinetrainsettlement.com/

[33] https://www.eastpalestinetrainsettlement.com/

[34] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (exhibit D page 6)

[35] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 29).

[36] https://www.post-gazette.com/local/region/2024/06/30/east-palestine-settlement-train-derailment-ntsb/stories/202406280119

[37] https://www.congress.gov/bill/118th-congress/senate-bill/576

[38] https://www.congress.gov/bill/118th-congress/senate-bill/576

[39] https://www.congress.gov/bill/118th-congress/senate-bill/576

[40] https://www.congress.gov/bill/118th-congress/senate-bill/576

[41] https://www.congress.gov/bill/118th-congress/senate-bill/576

[42] https://www.congress.gov/bill/118th-congress/senate-bill/576/all-actions