2020 Environmental Real Estate Issues

On March 30, 2023, the US Department of Justice (DOJ) on behalf of the US Environmental Protection Agency (EPA) brought a civil suit against Norfolk Southern Railway Company and its parent, Norfolk Southern Corporation. DOJ’s Complaint alleges the February 3, 2023 derailment in East Palestine, Ohio caused violations of the Clean Water Act (CWA). DOJ also seeks recovery of response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Of the 38 rail cars that derailed, at least 11 were carrying hazardous substances, including vinyl chloride, ethylene glycol monobutyl ether, ethylhexyl acrylate, butyl acrylate, isobutylene, and benzene residue.

Filing the suit does not prevent DOJ or the State of Ohio from bringing criminal charges against the companies or any of their employees.

EPA’s Administrative Order
DOJ’s news release notes that on February 21, 2023, EPA issued an administrative order to Norfolk Southern Railway Company requiring it to “develop and implement plans to address the contamination” and to reimburse EPA for EPA’s response costs associated with the order. EPA’s response costs will include its oversight of the company’s work under the order; thus far, 9.2 million gallons of wastewater and 12,932 tons of contaminated soil have been shipped off-site.

Allegation of Parent Liability
In the Complaint, DOJ alleges the parent is liable “because it controls the operation of Norfolk Southern Railway Company.”

To see the news release, which has a link to the Complaint https://www.justice.gov/opa/pr/justice-department-and-epa-file-complaint-against-norfolk-southern-unlawful-discharge