“100% Preventable.” The East Palestine Train Derailment and its Consequences

by Caroline Hardig, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

A train derailment on February 3, 2023 in a small Ohio town, East Palestine, brought train derailments and railway regulations into the national spotlight.¹ This derailment spurred criticism of the rail industry in the United States and has led politicians and government entities to take a deep dive into railway regulations.² A month after the derailment, residents of East Palestine and surrounding areas are experiencing symptoms they believe are caused by the derailment.³ Residents are demanding answers from Norfolk Southern, the railroad company whose train derailed, as well as government officials.⁴

This article explores the train derailment in East Palestine, Ohio and its legal implications. Part II provides background on the timeline of events, residents’ concerns, Norfolk Southern’s response, and the various lawsuits that have been filed since the derailment. Finally, in part III, this article discusses new bipartisan legislation and how the derailment is impacting the East Palestine community.

II. Background

A. The Derailment and Its Aftermath

East Palestine is an Ohio village near the Pennsylvania border, with a population of just under 5,000 people.⁵ Fifty freight train cars derailed, and eleven of the cars contained hazardous materials including: vinyl chloride, ethyl acrylate, and isobutylene.⁶ Vinyl chloride, a gas, can cause shortness of breath, headaches and dizziness.⁷ According to the CDC, chronic exposure can lead to more serious consequences like liver damage and cancer.⁸ Other hazardous materials that the train carried can cause lung and throat irritation as well as nausea.⁹

Immediately following the derailment, residents within one mile were evacuated by first responders.¹⁰ Then, on February 5th, due to fear of a possible explosion, a mandatory evacuation was ordered for all residents within two miles of the site.¹¹ While residents were evacuated, officials initiated a “controlled release” which burned off the hazardous chemicals in order to prevent further explosions.¹² On February 23rd, the National Transportation Safety Board (“NTSB”) issued its preliminary findings which listed the cause of the derailment “to be a wheel bearing in the final state of overheat failure.”¹³ Luckily, no one was injured from the initial train derailment.¹⁴

The “controlled release” was executed to prevent harm to the village and its surrounding areas, but many residents still fear that the symptoms they are experiencing are due to the derailment, even weeks later.¹⁵ Residents were able to return to their homes on February 8th, and since then they have developed “rashes, sore throats, nausea, and headaches.”¹⁶ Officials have told residents the tap water and air is safe, but are still in the process of testing water from “rivers, streams, and residential wells.”¹⁷ The Ohio Department of Natural Resources estimates the spill killed nearly 45,000 minnows and other aquatic life.¹⁸

Despite being told it’s safe, some residents have decided not to return.¹⁹ One resident, Amanda Greathouse, developed a rash and nausea within thirty minutes of returning to her home.²⁰ After a few days, her family left because of a lingering smell that “reminded [her] of hair perming solution.”²¹ Officials have reassured residents that the air and water is safe.²² For example, Ohio Governor Mike DeWine and U.S. Environmental Protection Agency Administrator Michael Regen drank from a resident’s tap as an attempt to ease residents’ fears.²³

B. Remedies

Norfolk Southern, operator of the train, has attempted to remedy the damage through monetary relief and cleaning efforts.²⁴ As of February 28th, the company had pledged $11.4 million dollars to the community.²⁵ These contributions include $300,000 to the school district for “academics, athletics, extracurricular activities, and its long-term contingency planning regarding the impacts of the derailment.”²⁶ In addition, the company has pledged $825,000 to the fire department for equipment.²⁷ Norfolk Southern has already given East Palestine residents $1,000 as an “inconvenience check.”²⁸ Further, the Environmental Protection Agency has announced Norfolk Southern will be responsible to “pay for all cleanup and lodging costs for displaced residents.”²⁹ Norfolk Southern agreed with the EPA, and on March 6th announced they would pay for the costs of relocating residents while officials continue to clean up.³⁰ Despite Norfolk Southern cooperating with the EPA, they are not immune to lawsuits.

C. Lawsuits Filed

Various lawsuits have been filed against Norfolk Southern and officials regarding the derailment on February 3rd.³¹ A firm from Youngstown, Ohio filed a class action against Norfolk Southern on behalf of “any resident or business within 30 miles that was affected by the derailment.” The lawsuit “seeks monetary damages, the creation of a medical monitoring fund, and establishing testing and cleaning protocols in the area.”³² The lawsuit includes public nuisance, negligence, and reckless indifference claims.”³³

In addition to the lawsuits filed against Norfolk Southern, a lawsuit was filed against Governor DeWine and Michael Regan.³⁴ The lawsuit, filed by one resident and We The Patriots USA, a nonprofit public interest group, alleged that the EPA and DeWine violated the Fourth Amendment by “downplaying air and water quality concerns.”³⁵ Furthermore, the lawsuit claims that the tests used by the EPA before residents returned were seriously flawed.³⁶ Regarding officials trying the tap water, residents claim that officials “made a mockery of citizens by ceremoniously toasting a homeowner with water from her tap.”³⁷ As of February 28th, sixteen lawsuits had been filed regarding the derailment.³⁸

D. How Did It Happen?

NTSB Chair, Jennifer Homendy, called the derailment “100% preventable.”³⁹ So how did it happen? To many people’s surprises, train derailments happen quite frequently.⁴⁰ In the United States, trains derail around 1,000 times a year.⁴¹ Not only do trains derail frequently, but many trains have derailed carrying hazardous materials.⁴² From 2015 to 2022, 110 chemical spills were caused by train derailments.⁴³ In addition, a second Norfolk Southern train, not carrying hazardous materials, derailed on March 4th in Springfield, Ohio, about 180 miles from East Palestine.⁴⁴

According to the NTSB’s preliminary report, surveillance video observed the train in East Palestine, passing not one, but two sensors that showed the wheel bearing’s high temperatures.⁴⁵ But according to company policy, the temperature had to wait until it hit a third sensor to hit a critical number.⁴⁶ This derailment has caused government agencies and politicians to dive into railway regulations throughout the country, in order to prevent a situation like this in the future.⁴⁷

III. Discussion

The tragedy in East Palestine opened the eyes of Americans, politicians, and government officials to the railway system in the United States. The Transportation Department has pledged to create new stricter rules on “high-hazard flammable trains and electronically controlled pneumatic brakes.”⁴⁸ In addition, labor unions argue for regulations that would end precision scheduled railroading, which is a strategy used by railroad companies to increase efficiency and lower costs.⁴⁹ Unions argue that this strategy contributes to small crews and longer trains.⁵⁰ Environmental groups have also voiced requests for new brake requirements.⁵¹

On March 1, 2023, a group of bipartisan senators from Ohio and Pennsylvania announced The Railway Safety Act of 2023.⁵² Some of the safety provisions in the Act include: requirements and procedures for trains carrying hazardous materials like vinyl chloride, a requirement for advance notice from railways to state emergency response officials about what their trains are carrying, requirements to prevent blocked railway crossings, and new rules for train size and weight.⁵³ Regarding wheel bearing failures, which caused this derailment, the Act calls for better detection and two-person crews for every train.⁵⁴

This bill is a great step in ensuring this never happens again. It is unfortunate that something bad had to happen before legislators and government entities came together to fix the issue. However, it is encouraging to see politicians put aside their political beliefs and work together to find a solution. Hopefully, this will be the start of more bipartisan legislation in the future.

In response to the bipartisan legislation, Norfolk Southern unveiled a “six point” safety plan, which focuses on wheel bearings, the cause of the East Palestine derailment.⁵⁵ The plan states to add more bearing detectors to rail tracks that would provide warnings to crew members.⁵⁶ Senate legislation and Norfolk Southern’s safety plan are both reactionary and unfortunately come after the catastrophe in East Palestine.

For the residents of East Palestine, the long-term effects from the derailment are unknown.⁵⁷ The mayor expressed these concerns and has asked for officials to perform “bi-yearly health checks.”⁵⁸ In addition, residents are currently suffering, and some are unable to leave for economic reasons.⁵⁹ For example, Audrey DeSanzo says she wants to leave East Palestine, but cannot afford to go anywhere else since she only makes fourteen dollars an hour and homes farther from the accident site are more expensive.⁶⁰

The co-director of the Brighthouse Project, a non-profit, has been working with residents since the derailment.⁶¹ She explained that East Palestine is a poverty stricken area and most residents were not able to easily access food and personal care products after the evacuation.⁶² Not only are residents struggling economically, but the mental toll of the situation has impacted residents substantially.⁶³ Residents expressed their frustrations at a town hall held with local leaders and Norfolk Southern.⁶⁴ Many residents felt they are being lied to about whether their living conditions are safe and urged for transparency.⁶⁵ While Norfolk Southern apologized for what has happened, residents don’t want an apology, they want action.⁶⁶

A few days after the town hall, Norfolk Southern agreed to relocate residents during the evacuation of contaminated soil, which could lead to more odors.⁶⁷ While this is a step in the right direction, it may be too little too late. Norfolk Southern agreed to do this nearly a month after the derailment so residents’ health has already been compromised. Norfolk Southern should have listened to resident concerns earlier and pledged to be fully transparent with them while they experienced fear of the unknown. While Norfolk Southern has now agreed to relocate residents and pay for food, housing and other living essentials, the company needs to communicate with residents and not look past their health and safety concerns.⁶⁸ In addition, the company and government officials should continue to provide health and wellness checks for all those effected as well as better communication about potential long-term effects.⁶⁹

IV. Conclusion

While the tragedy in East Palestine cannot be undone, it is important that Norfolk Southern is held accountable and follows through with their cleanup and recovery efforts. The residents of East Palestine are the ones truly suffering and fear they will be forgotten about. Litigation could take years, so it is important that Norfolk Southern and government officials take action to help residents now. Hopefully, new safety regulations and legislation will create action and reform in the railway industry, so another community is not substantially impacted like East Palestine.

Cover Photo by Ankush Minda on Unsplash

Caroline Hardig

Prior to law school, Caroline Hardig attended the University of Kentucky where she received a degree in Psychology and a minor in Spanish. Caroline enjoys writing about various areas in the law. In her free time she likes to exercise, spend time with friends and family, and watch sports.

References

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See Thao Nguyen & Melissa Pérez-Carillo, Train Carrying Propane Derailed Near Florida Airport; No Leaks Detected, Officials Say, USA Today (Feb. 28, 2023), https://www.usatoday.com/story/news/nation/2023/02/28/sarasota-florida-derailment-propane-officials/11368082002/.
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Haley BeMiller, Lawmakers Introduce New Rail Safety Legislation After Ohio Train Derailment, USA Today (Mar. 1, 2023), https://www.usatoday.com/story/news/nation/2023/03/01/east-palestine-ohio-train-derailment-legislation-lawmakers/11377681002/.
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35
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67
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