US Norfolk Southern suing chem, tank car companies for help with East Palestine cleanup

HOUSTON (ICIS)–US railroad Norfolk Southern (NS) has filed a third-party complaint against vinyl chloride monomer (VCM) producer Oxy Vinyls and railcar owners including Dow Chemicals to help share the costs to clean up after a February derailment in East Palestine, Ohio.

NS claims federal environmental laws require that all responsible parties contribute to the cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or the Superfund law.

Parties included in the lawsuit include Oxy Vinyls, who was shipping VCM from its plant in La Porte, Texas; GATX Corp (owner of railcar 29); Trinity Industries Leasing Co (owner of railcar 26); General American Marks Co, a subsidiary of GATX (owner of railcar 23); Dow Chemical (owner of railcar 36); Union Tank Car Co (owner of railcar 48); and SMBC Rail Services (owner of railcar 34).

An Oxy Vinyls spokeswoman said “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. 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.”

SMBC declined to comment on pending litigation.

Trinity Industries vice president of public affairs, Jack Todd, said, “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.”

In a statement from the company, GATX said it “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.”

None of the other companies replied to requests for comment.

The railroad asserts that it did not manufacture, load or own the VCM or other chemicals that were on the train, and did not manufacture, lease or own the railcars involved.

The lawsuit says that railroads are obligated as common carriers to transport hazardous materials, including chemicals, and that the responsibility for safe transport is shared among the 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”.

The US National Transportation Safety Board (NTSB) said in a preliminary report that a wheel bearing on the 23rd car of the train overheated and failed moments before the derailment.

In March, NS announced a six-point plan that it said will immediately enhance the safety of its operations.

In May, the US Senate’s Commerce Committee voted to advance the Railway Safety Act of 2023 which, if passed into law, would take several key steps to improve rail safety protocols, such as enhancing safety procedures for trains carrying hazardous materials, establishing requirements for wayside defect detectors, creating a permanent requirement for railroads to operate with at least two-person crews, increasing fines for wrongdoing committed by rail carriers, and more.

In the US, chemical railcar loadings represent about 20% of chemical transportation by tonnage, with trucks, barges and pipelines carrying the rest.

In Canada, chemical producers rely on rail to ship more than 70% of their products, with some exclusively using rail.

(Recasts paragraph four and adds paragraphs 5, 6 and 7 to add comments from the companies)

(Recasts, adding paragraph four with comment from Oxy Vinyls)