Norfolk Southern Sues Chemical and Rail Companies Over East Palestine Cleanup
Written by Jennifer McLawhorn, Managing Editor
Norfolk Southern
EAST PALESTINE, Ohio – Norfolk Southern has filed a third-party complaint against the chemical and rail car owners involved in the East Palestine derailment last February.
Over the July 4th weekend, Reuters reported that Norfolk Southern has sued the owners “of the rail cars that were carrying toxic chemicals that spilled” on February 3, 2023. Norfolk Southern asserts that the “Superfund law, which sets cost-sharing procedures for cleaning up heavily polluted sites, makes responsible parties strictly liable for the remediation of those sites.”
On June 30th, Norfolk Southern Railway Company and Norfolk Southern Corporation filed a third-party complaint against “Third-Party Defendants Oxy Vinyls LP, GATX Corporation, General American Marks Company, Trinity Industries Leasing Company, SMBC Rail Services LLC, Dow Chemical Incorporated, and Union Tank Car Company.”
The 50-page complaint outlines the East Palestine derailment earlier this year on February 3rd and asserts that “Norfolk Southern did not manufacture, load, or own the vinyl chloride and other chemicals that Train 32N was carrying on February 3, 2023, nor did it manufacture, lease, or own the railcars that contained the vinyl chloride and other chemicals.” The complaint recognizes the obligation under 49 U.S.C § 11101 that railroads are “common carriers . . .to transport hazardous materials, including chemicals. . . [and] the responsibility for safe transport is shared among several interested parties, including the manufacturers of the railcars and safety devices, the owners and lessees of the railcars, the manufacturers and shippers of the material being transported, and the railroad.”
Because Norfolk Southern “did not manufacture or own the bearing [that failed and caused the derailment]; did not manufacture, own, or lease the derailed railcar; and did not manufacture, own, or load the contents of that railcar”, it “demands a trial by jury of all issues so triable.”
Five separate claims made by Norfolk Southern are outlined as follows:
- “This Third-Party Complaint does not change [Norfolk Southern’s] commitment [‘to making things right in the greater East Palestine area’], but rather seeks to ensure that others responsible for the safe transport of their railcars and their chemicals contribute resources to the effort.”
- “Norfolk Southern brings this Third-Party Complaint pursuant to Sections 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9607(a), 9613(f), to recover from Third-Party Defendants their share of response costs that Norfolk Southern has incurred and will incur for investigation, design, construction, remediation, and other activities in East Palestine, Ohio, arising from the February 3, 2023, train derailment on the Fort Wayne Line of the Keystone Division.”
- “Norfolk Southern seeks a declaratory judgment that it is entitled to contribution from the Third-Party Defendants for their fair share of the liability attributed to Norfolk Southern for the release of hazardous substances arising out of the February 3, 2023, train derailment.”
- “Norfolk Southern also seeks contribution under Ohio law for any costs that Norfolk Southern has paid in excess of its proportionate share of costs.”
- “Norfolk Southern seeks damages under Ohio law for the negligence of certain Third-Party Defendants that failed to follow federal regulations and industry rules governing the compliance and certification of hazardous materials tank cars, failed to ensure that shipping equipment was compatible with the lading, failed to provide accurate hazardous communication information, and/or failed to properly maintain railcars and equipment.”
The filing details ten counts under its claims for relief which range from CERCLA Recovery of Response Costs Against Railcar Owner Defendants (Oxy Vinyls, GATX Corporation, Trinity Industries Leasing Company, SMBC Rail Services LLC, Dow Chemical Incorporated, and Union Tank Car Company) as well as Recovery of Response Costs Against Vinyl Chloride Shipper Defendant (Oxy Vinyls) to Negligence by Oxy Vinyls, General American Marks Company and GATX Corporation.
The full filing, including the ten counts, can be read in full below.
