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U.S. Justice Department sues Norfolk Southern over Ohio derailment

March 31, 2023 Updated Fri., March 31, 2023 at 7:33 p.m.

Officials collect soil and air samples from the derailment site on March 9 in East Palestine, Ohio.  (Getty Images)
Officials collect soil and air samples from the derailment site on March 9 in East Palestine, Ohio. (Getty Images)
By Kelly Yamanouchi Atlanta Journal-Constitution

The U.S. Department of Justice has filed a lawsuit against Atlanta-based Norfolk Southern, alleging its Feb. 3 derailment in Ohio unlawfully polluted waterways.

The government wants the court to hold Norfolk Southern accountable for the derailment of the train carrying hazardous materials, and to ensure the railroad pays the full cost of the environmental cleanup.

The lawsuit, filed Thursday in an Ohio federal court but which became publicly known Friday, is the latest in a series of legal actions against Norfolk Southern since the wreck in East Palestine, Ohio, and follows lawsuits filed by Ohio’s attorney general, residents and shareholders.

In a statement Friday, Norfolk Southern said: “Our job right now is to make progress every day cleaning up the site, assisting residents whose lives were impacted by the derailment, and investing in the future of East Palestine and the surrounding areas.”

“We are working with urgency, at the direction of the U.S. (Environmental Protection Agency), and making daily progress,” the company said. Norfolk Southern said it has also committed more than $27.9 million to East Palestine and the surrounding region, including financial assistance to families.

“That remains our focus and we’ll keep working until we make it right,” the railroad said.

The lawsuit notes the train wreck was on fire for days and released hazardous materials into the air and the ground, contaminating local waterways and flowing miles downstream. Tens of thousands of fish were killed in contaminated creeks, according to the Ohio Department of Natural Resources.

Exposure to the chemicals that were on the train at high levels “has been associated variously with an increased risk of cancer; risks to fetal development; damage to organs like the liver, kidneys, lungs, and skin; and other health conditions,” the suit says.

Norfolk Southern also discharged oil from derailed rail cars, and firefighting efforts resulted in more contaminants and pollutants entering the soil and water, according to the suit.

The EPA responded to the site within hours of the derailment and has been conducting soil sampling and air monitoring, and overseeing the remediation by Norfolk Southern.

The Justice Department is asking the court to assess civil penalties of $64,618 per day, per violation of the Clean Water Act, which prohibits the discharge of pollutants without authorization, and $55,808 per day, or $2,232 per barrel of oil or unit of hazardous substance.

It also asks for a judgment declaring Norfolk Southern liable for federal response costs, per the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, which says those who release hazardous substances are liable for all costs of removal or remediation by the U.S. government.

And it asks the court to order Norfolk Southern to take action to ensure the safe transport of hazardous materials, and to remedy the harm to public health and environment caused by its violations.

The Justice Department in the complaint says Norfolk Southern executives were rewarded for increasing revenue and reducing expenses, by having 80% of their compensation based on performance metrics.

Norfolk Southern CEO Alan Shaw’s total compensation in 2022 totaled nearly $9.8 million – including about $5.5 million in stock awards, $2.2 million in option awards, $901,276 in incentive compensation and a $900,000 salary, according to a Friday filing with the U.S. Securities and Exchange Commission.

“Over the past four years, annual reports show a stark contrast between the increases in operating income and the drop in railroad costs,” the complaint said. “The drop in operating costs includes reductions in spending to repair, service, and maintain locomotives and freight cars, perform train inspections, and pay engine crews and train crews.”

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