The state of Ohio is asking President Joe Biden to declare East Palestine the site of a major disaster or emergency because of uncertainty over how the health of area residents will be impacted in the future.
A Norfolk Southern train derailed in East Palestine on Feb. 3. Several days following the derailment, NS and state and local officials decided to vent a tank car carrying vinyl chloride over concern that the car was in danger of exploding.
Ohio’s request comes as NS (NYSE: NSC) has filed a complaint against some rail car owners and manufacturers involved in the accident as a means to recoup costs.
“Because of the unique nature of this incident the State is still working to identify current needs and evaluate the future impacts this disaster will have on individuals and the community. The incident had immediate physical and mental health effects on the community … . However, the long-term health impacts are unknown,” said a Monday letter from Ohio Gov. Mike DeWine.
Although NS has pledged to help the community in Ohio, that aid is not certain, DeWine said.
“While Norfolk Southern has willingly stepped in to provide much needed assistance to the community, this assistance is not guaranteed moving forward and could terminate for a variety of reasons,” DeWine said. If NS is found to not be liable for the damage in East Palestine or new leadership takes over management of Norfolk Southern and decides to terminate assistance, he continued, then state and local governments will have to step in.
Asking Biden to declare East Palestine a disaster area means that the state views the incident as “of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments, and that supplementary federal assistance is necessary,” DeWine said.
The National Transportation Safety Board (NTSB) is still investigating the circumstances that led to the derailment. The federal agency held a two-day public hearing in East Palestine to examine factors that may have contributed to the incident. No deaths or injuries were reported, but the derailment forced the temporary evacuation of an area around the site.
NS sues rail car owners over derailment
Separately, NS filed a complaint against rail car owners Friday in an ongoing lawsuit being heard in the U.S. District Court for the Northern District of Ohio on the derailment.
NS says it wants to ensure that others involved in the incident, such as rail car owners and rail shippers whose cars carrying hazardous materials derailed, bear some responsibility in the industry’s response to the incident.
“From the beginning, Norfolk Southern has committed to making things right in East Palestine and the surrounding areas. We are investing in the community and remediating the site, while working to create long-term funds to support real estate values, healthcare, and water testing,” NS told FreightWaves in a statement about the complaint. “This third-party complaint does not change that commitment but seeks to ensure that others responsible for the safe transport of freight, such as railcar owners and shippers of the material being transported, contribute resources to the effort.”
Defendants in the complaint include chemical companies Oxy Vinyls and Dow Chemical, rail car manufacturer and lessor GATX (NYSE: GATX), rail car lessor Trinity Industries (NYSE: TRN), GATX subsidiary and rail car lessor General American Marks Co., rail car lessor SMBC Rail Services, and rail car manufacturer and lessor Union Tank Car Co.
“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,” attorneys representing NS said in the Friday filing.
The rail carrier added that “federal environmental laws require that all responsible parties contribute to the cleanup costs.” A federal provision “ensures that all industry participants bear the environmental cost of potentially hazardous goods, which balances the benefits of industrial manufacturing with the protection of public resources. In this instance, the responsible parties include, among others, the owners of the railcars that were carrying chemicals and the shippers of the chemicals released in the derailment.”
NS also said some rail car owners failed to ensure that their cars were being properly maintained — a task that is not solely within the railroad’s purview. This includes ensuring that a rail car or a rail car component’s design and modification complies with federal regulations, which is NS’ complaint against Oxy Vinyls, GATX and Trinity, and that bearings are being properly maintained, which is NS’ complaint against General American Marks.
In response to NS’ complaint, OxyVinyls, which is affiliated with Oxy Chemical and Occidental Petroleum (NYSE: OXY), rejected NS’ allegation.
“Norfolk Southern’s lawsuit is a meritless disinformation campaign masquerading as a legal filing. Testimony from multiple witnesses at the recent NTSB Investigative Hearing in East Palestine revealed that Norfolk Southern and its contractors ignored OxyVinyls’ experience with its products and withheld essential information from the East Palestine Fire Chief,” OxyVinyl told FreightWaves in a statement.
“Norfolk Southern’s recommendation to simultaneously detonate the railcars containing our product — contrary to the available information about the railcars’ condition or the product properties — appears to have been needlessly rushed to prioritize Norfolk Southern’s rail line operations. We will continue to support the Federal agencies investigating the incident, which are focused on evaluating the facts.”
GATX told FreightWaves, “GATX takes all safety-related events seriously. Throughout our 125-year history, the safety of our employees, our customers, our environment and the communities in which we operate has always been our highest priority. We will vigorously defend the company against baseless claims made by Norfolk Southern.”
Said Jack Todd, vice president of public affairs for Trinity: “Trinity is aware of Norfolk Southern’s meritless filing. For more than 45 years, Trinity has proudly supplied the rail industry with safe and reliable railcars. Trinity railcars are built to approved standards and regulations and perform as designed. The allegations made by Norfolk Southern are baseless, and we will vigorously defend ourselves.”
SMBC declined to comment on pending litigation.
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