A class action lawsuit has been filed against Eastern U.S. Class I rail carrier CSX over the train derailment that occurred in eastern Kentucky the day before Thanksgiving.
The lawsuit, filed Wednesday with the U.S. District Court for the Eastern District of Kentucky, alleges that local community members experienced symptoms such as difficulty breathing and sore throats because two rail cars carrying molten sulfur derailed and caught fire, resulting in the spread of toxic fumes in the area.
The derailment, which occurred at 2:33 p.m. EST on Nov. 22 just north of Livingston, Kentucky, in Rockcastle County, involved 16 rail cars, including the two that spilled molten sulfur, according to CSX. No injuries from the derailment were reported.
CSX and emergency responders subsequently extinguished a fire that occurred as a result of the derailment. The spilled sulfur caught fire, releasing sulfur dioxide into the air, according to the U.S. Environmental Protection Agency, which went to the derailment site to conduct air quality monitoring. The fire burned overnight until it was extinguished Thanksgiving morning. EPA said that there were no more reports of sulfur dioxide detections in the air after the fire was extinguished.
But that concern about sulfur dioxide being in the air prompted public officials to a voluntary evacuation order, which was later rescinded after the fire was extinguished. Kentucky Gov. Andy Beshear also declared a state of emergency to provide the local area with access to additional resources, including help from Kentucky Emergency Management and the Kentucky National Guard.
Lawsuit argues CSX should have been more proactive in preventing wheel bearing failure
CSX said Sunday that a failed wheel bearing appeared to be the cause of the derailment based on its investigation. The rail carrier hasn’t released further details into what might have caused the failed wheel bearing and how the wheel bearing actually failed, although it told FreightWaves that the investigation into the derailment is still ongoing.
But the class action lawsuit asserts that wayside detectors should have detected any problems with the wheel bearing, particularly if the wheel bearing was overheated.
“Because of CSX’s alleged recklessness and negligence in monitoring the train’s wheel bearings, they’ve created a potentially deadly environment for all residents living in the surrounding area of Rockcastle County,” Jean Martin, an attorney with Morgan & Morgan, the firm filing the lawsuit, said in a Wednesday news release.
“First responders to this catastrophe worked diligently for 24 hours to extinguish the fire, while putting themselves at risk of being exposed to potentially deadly chemicals and toxins. We will hold all those accountable for this disaster responsible for their negligence, and will secure justice for those whose lives and homes have been endangered,” Martin said.
According to the release, plaintiffs are seeking relief such as medical monitoring, punitive damages, damages related to emotional distress, loss of property value and increased risks of future illness. The suit says there are more than 100 class members, and the amount in controversy exceeds $5 million, excluding costs and interest.
The health of wheel bearings has been in the limelight this year because an overheated wheel bearing appeared to be the cause of the Feb. 3 derailment of a Norfolk Southern train in East Palestine, Ohio. That incident rattled the local community because it also included the derailment of rail cars carrying vinyl chloride. NS and officials decided to vent those rail cars out of concerns that an explosion could occur from the chemical reactions occurring inside those cars. The venting of the rail cars caused a large plume of smoke at the derailment site.
Wednesday’s lawsuit also contends that CSX should have spaced wayside detectors more closely on its network in order to improve detection of the wheel bearing failure.
Following the train derailment in East Palestine, public attention turned to the discrepancies among the Class I railroads over the spacing of wayside detectors, with some arguing that the spacing was too far apart in some areas of the nationwide network. The rail industry responded by saying that the railroads plan to install additional hot bearing detectors on their networks, with a goal of achieving an average spacing of 15 miles.
“Before the derailment, the train passed a railroad trackside detector and then traveled approximately 21 miles before the wheel bearing completely failed. The train was still two miles away from the next trackside detector,” the lawsuit said. “Across CSX’s networks in the eastern United States, the detectors are an average of 14.9 miles apart. According to CSX, however, on less traveled tracks the detectors are sometimes farther apart, as was the case here.”
In addition to claims that the derailment caused the release of toxic fumes into the area, the suit also alleges that CSX didn’t properly perform inspections of the rail car and its wheels and brakes, nor did it ensure that qualified employees were performing the inspections or that the rail carrier was following procedures required by federal regulations.
The news release from the law firm also said it is involved in a lawsuit against NS over the East Palestine derailment and it has “successfully litigated” against major corporations in cases such as the 2010 Deepwater Horizon oil spill involving BP, the 2015 Porter Ranch gas well blowout in California and the Merrimack Valley gas explosions in Massachusetts in 2018.
In response to the suit, CSX told FreightWaves in an email: “CSX is reviewing the allegations in the lawsuit. We pride ourselves on being a safe railroad and in the rare occurrence of an incident like the one in Livingston, KY we respond quickly, prioritizing safety and supporting recovery of the community. We appreciate the partnership of the Rockcastle County first responders and the U.S. Environmental Protection Agency for their quick response, and the Red Cross and local businesses that worked with us as we provided food, lodging and expense reimbursement throughout our recovery efforts. CSX will continue to provide support for the community.”
Following the East Palestine derailment, federal regulators, the railroad industry and other stakeholders such as shippers and the railroad craft unions engaged in sometimes public discussions about workforce training and who should be held liable when incidents occur on rail cars that are transported by the railroads but owned by rail shippers.
Some of these discussions became fodder for the railway safety bill that’s currently in the Senate, while others served as the basis for safety advisories from the Federal Railroad Administration. The rail industry also said the industry would be taking steps to bolster rail safety.
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