Norfolk Southern is suing several players involved in the February 3 derailment and subsequent chemical release that occurred in East Palestine, Ohio. Companies targeted in the lawsuit include Oxy Vinyls LP, Dow Chemical Inc. and GATX Corp., a global railcar lessor. Norfolk Southern stated in the suit, filed Friday, that everyone involved in shipping hazardous chemicals bears some responsibility under federal regulations.
Chemical Processing reported earlier this year that suppliers are typically not subject to liability because transportation providers accept responsibility for ensuring the materials arrive at their destination safely, according to attorney Mark Steger, senior counsel with Clark Hill, who specializes in environmental law for corporate clients, including chemical regulations.
“It’s really the railroad’s liability; the railroad’s fault,” he said at the time. The only exception would be if the chemical suppliers were grossly negligent in some way, he added.
Regarding this recent filing, Steger said the lawsuit is not surprising. "As to whether [Norfolk Southern] has a case, the devil in the details," he commented via email. "Tough to say without technical information on the causes(s) of the derailment and information on the contractual relationship between the various parties. Moreover, their insurers will have to evaluate the case as well and may want to simply resolve any liability before trial to avoid the expense/adverse ruling that could result in more financial exposure."
According to an AP article, the problem Norfolk Southern identified with one of the cars is that it sat idle for more than a year and a half in 2017 and 2018 and again for more than six months in 2018 and 2019. The manufacturer said railcars need to be moved at least one car length every six months to keep the grease on the bearings from degrading.
“Norfolk Southern’s lawsuit is a meritless disinformation campaign masquerading as a legal filing,” Oxy Vinyls spokeswoman Celina Cardenas said in the AP article. “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.”
Chemical Processing previously reached out to Oxy Vinyls to confirm that the company had shipped a portion of the vinyl chloride that was on board the train that derailed but Cardenas declined to comment, saying "we have nothing to offer."
