EPA Wields Superfund Law’s Big Stick in Ohio Train Wreck Cleanup

The EPA is taking over remediation of the Norfolk Southern Corp. freight train derailment in Ohio by utilizing one of its strongest legal authorities to force a company cleanup.

The agency’s 77-page order requires the company to clean up contaminated soil and water, participate in public meetings, and develop a comprehensive work plan for the Environmental Protection Agency’s review and approval.

The order, which took effect Thursday, invokes one of EPA’s most significant authorities under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA): potential fines of as much as $67,544 for each day the company willfully violates or refuses to comply.

Any daily fine also “may increase in the future” should the EPA decide to hike its civil penalty amounts, according to the order. The company could be liable for punitive damages up to three times EPA’s costs if the agency has to do the cleanup.

“It’s really hard to envision an act of Congress signed into law that has a broader scope of liability than CERCLA,” said attorney Grant Gilezan, head of Dykema Gossett’s Environmental Law Practice Group.

The EPA order might also be a significant factor if, years from now, the community decides it wants the contaminated area elevated to the Superfund National Priorities List, for a comprehensive cleanup program and natural resources restoration to follow the more immediate EPA-ordered cleanup, Gilezan said.

The agency action could be helpful for lawsuits seeking to make the company liable for health issues resulting from the derailment, said Lisa Rushton, an attorney with Womble Bond Dickinson specializing in CERCLA and other environmental litigation.

“It certainly would add to the weight of the evidence related to exposure” in seeking damages for health issues, Rushton said. She cautioned that other issues will also be a factor, including whether or not there is “sufficient exposure or connectivity to the claimed health issues” to the derailment.

Under the EPA order, Norfolk Southern also must attend and participate in public meetings at EPA’s request and post information online. The company last week drew fire from residents and local officials for failing to show up to a community meeting, citing safety concerns for Norfolk Southern employees.

The EPA directed Norfolk Southern to reimburse the agency for cleaning and other services the agency or its contractors offer to residents and businesses, providing “an additional layer of reassurance,” the agency said.

The agency said it will immediately step in to conduct necessary work if the company fails to complete actions ordered by EPA, for which the agency could seek payment of triple the agency’s costs.

Enforcement Potential

Proceeding under the EPA’s CERCLA order may also provide a “limited benefit” to the company in that the work plan and cleanup would proceed under EPA’s direction, according to Gilezan.

It largely limits other jurisdictions with environmental authority, such as Ohio, from imposing separate requirements regarding “initial measures to abate endangerment conditions,” Gilezan said.

The Ohio EPA and local governments will have input and may comment on the scope of the remediation, Rushton said, and the EPA will utilize the local cleanup standards. But the EPA is the lead agency overseeing the remediation.

Norfolk Southern said in a Feb. 21 statement “that we have responsibility, and we have committed to doing what’s right for the residents of East Palestine” by paying for clean-up activities.

“We are committed to thoroughly and safely cleaning the site, and we are reimbursing residents for the disruption this has caused in their lives,” the company said, pointing to the excavation of some 4,500 cubic yards of contaminated soil and collection of 1.5 million gallons of contaminated water to be transported to disposal facilities.

One former Justice Department official said the agency’s decision to quickly issue its order isn’t surprising, even in cases such as the Norfolk Southern derailment where the company quickly accepted responsibility for the cleanup.

But the unilateral administrative order ensures the community isn’t just relying on the good graces of the company and clarifies that it’s now under legal obligation to do the cleanup, the official said.

Community Concerns

The rail company already faces several class action lawsuits, including one filed within days of the derailment on behalf of East Palestine residents and businesses over cancer risks and other potential health impacts. That litigation will continue regardless of the EPA’s involvement.

Claims for property damage, including reduction of property values, health damages, and medical costs are all “still fully available and in no way preempted” by EPA’s order, Gilezan said.

Several of the train cars that derailed were listed as containing hazardous substances that were released into the air, soil, and surface waters, according to EPA.

Claims seeking to hold the company liable for property damage though will hinge on numerous factors related to the remediation EPA requires and showing reduced property value after the remediation is complete, Rushton said.

The EPA’s order “will not necessarily move the needle on that front,” Rushton said.

Community groups welcomed EPA’s move. But Amanda Kiger, Executive Director of River Valley Organizing, said area residents remain leery.

The community needs more transparency, Kiger said, and “given how information has continuously changed and questions have gone unanswered, East Palestine residents are understandably suspicious and concerned.”