American Chernobyl: East Palestine Faces Uncertainty Ahead

JONATHAN LESGART—On February 3, 2023, at approximately 9:00 p.m., disaster struck East Palestine, Ohio. A Norfolk Southern Railroad 150-car freight train headed to Conway, Pennsylvania, derailed while passing through the small town. Thirty-eight railcars in total derailed. Of most concern, five of the railcars carried about one million pounds of vinyl chloride, a flammable petrochemical used in plastic manufacturing. No one reported any immediate injuries.

The train’s derailment caused a fire. This fire posed an increasingly dangerous explosion risk from the five railcars transporting vinyl chloride. On February 5, the governor of Ohio established an evacuation zone of one mile surrounding the site affecting up to 2,000 residents. Due to the escalating danger given the explosion risk, the governor expanded the evacuation zone to two miles on February 6, and Norfolk Southern began a controlled venting of the vinyl chloride contained in the five railcars. The resulting giant, black fumes over the rural town looked biblical. On February 8, the evacuated residents of East Palestine were allowed to return after state officials reported safe air and water test results.

Vinyl chloride, on its own, is not particularly toxic, but when burned, it releases toxic gases like hydrogen chloride and phosgene gas. Hydrogen chloride, when mixed with water in the atmosphere, produces hydrochloric acid. When inhaled, this acid causes irritation, coughing, hoarseness, and possible lung damage. Phosgene gas was a warfare chemical employed during World War I and was banned by the 1925 Geneva Protocol. Chronic exposure to vinyl chloride could cause a rare form of liver cancer.

The National Safety Transportation Board (“NTSB”), which is leading the investigation into the derailment, has not yet determined a probable cause. The group’s preliminary report stated that the train’s crew tried to slow down after a hot bearing detector warned them of an overheating wheel bearing. However, this warning did not give the crew sufficient time to avoid the derailment.

On February 7, the first of several class action federal lawsuits was filed against Norfolk Southern in the Northern District of Ohio. The plaintiffs include business owners and residents within thirty miles of the site who pursue multiple theories of liability against the rail corporation. According to the first lawsuit filed, Feezle v. Norfolk Southern, the rail company will defend itself against claims of negligence, negligence per se, strict liability, and punitive damages. Damages claimed include physical ailments and loss of property value. An Ohio federal judge is considering consolidating the lawsuits to facilitate more efficient discovery and trial processes.

Under V&M Star Steel v. Centimark Corp., to prevail in their negligence claims, the plaintiffs will have to prove by a preponderance of the evidence that:

(1) Norfolk Southern owed the plaintiffs a duty of reasonable care;

(2) Norfolk Southern breached that duty by failing to stop a preventable train derailment and by unreasonably deciding to burn vinyl chloride, releasing toxic carcinogenic material into the water, soil, and atmosphere; and

(3) the plaintiffs suffered physical injuries and monetary damages as a proximate result of this breach.

Under a toxic tort case out of the Sixth Circuit, “[T]he plaintiff must establish both general and specific causation through proof that the toxic substance is capable of causing, and did cause, the [plaintiff’s] alleged injury.” Further, “[b]oth causation inquiries involve scientific assessments that must be established through the testimony of a medical expert.” 

Plaintiffs’ negligence per se claims would prevail if they could show that Norfolk Southern violated safety regulations promulgated under a federal statute. After such a finding, the class members only have to show that the violations caused their damages.

Similarly, the class members’ strict liability claims arise from a theory that Norfolk Southern engaged in an abnormally dangerous activity by transporting hazardous chemicals through a residential area. If the court agrees, Norfolk Southern would automatically be liable for any proven damages resulting from their engaging in that activity. However, common carriers under a public duty to transport hazardous materials may enjoy an exception to strict liability under Actiesselskabet Ingrid v. Central Railroad Company of New Jersey. One should expect Norfolk Southern to raise this defense. The exception is recognized in § 521 of the Restatement (2d) of Torts, but it has not yet been adopted in the Sixth Circuit.

The final claim is for punitive damages. Under Bickley v. Norfolk & Western Ry. Co., the plaintiffs must show that Norfolk Southern exhibited “conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.” Further, a conscious disregard is “a failure to exercise any care whatsoever by those who owe a duty of care” occurring “under circumstances in which there is a great probability that harm will result from the lack of care.”

Some plaintiffs’ firms are investigating a potential shareholder action against the managers of Norfolk Southern. The rail company’s stock price fell almost 12% between February 3 and February 23, translating to an almost $7 billion loss in market capitalization.

The Environmental Protection Agency (“EPA”) told Norfolk Southern in a letter that EPA officials detected hazardous materials related to the controlled burn in water samples from surrounding rivers and creeks. They also witnessed Norfolk Southern workers fill in the contaminated trenches during the reconstruction of the rail line.

On February 14, Norfolk Southern created a $1 million charitable fund for the community, which includes $1,000 reimbursement checks related to the evacuation. Some residents have taken advantage of the gesture, but class action attorneys warn against accepting “inconvenience” checks without ensuring that residents’ right to sue or join a class are not precluded. On February 21, the EPA ordered Norfolk Southern to foot the bill for all cleanup efforts undertaken by the agency. The agency also ordered the rail company to directly measure the toxicity levels of the soil at the site and compare them to unaffected areas.

The derailment and environmental fallout ultimately highlight the devastating risks that under regulation can pose to communities, public health, and the environment.