Norfolk Southern Corp. has filed a complaint against PVC maker Oxy Vinyls LP, Dow Inc. and the owners of other chemicals involved in a derailment and burnoff earlier this year in East Palestine, Ohio.
In the complaint, NS wants the owners of the rail cars that were carrying the chemicals — along with chemical shippers — to take responsibility for their role in the derailment and the cost of the subsequent cleanup.
In a statement sent to Plastics News, an NS spokesman said that "from the beginning, Norfolk Southern has committed to making things right in East Palestine and the surrounding areas."
"We are investing in the community and remediating the site, while working to create long-term funds to support real estate values, health care and water testing," he added. "This third-party complaint does not change that commitment but seeks to ensure that others responsible for the safe transport of freight, such as rail car owners and shippers of the material being transported, contribute resources to the effort."
Oxy Vinyls spokeswoman Celina Cardenas replied in a statement also sent to PN that the NS 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," she said. "Norfolk Southern's recommendation to simultaneously detonate the rail cars containing our product — contrary to the available information about the rail cars' condition or the product properties — appears to have been needlessly rushed to prioritize Norfolk Southern's rail line operations."
Cardenas also said that Oxy Vinyls "will continue to support the federal agencies investigating the incident, which are focused on evaluating the facts."
The derailment took place on Feb. 3, leading to a burnoff of five rail cars of vinyl chloride monomer, a feedstock used to make PVC resin. Smoke and odors related to the burnoff have led to health problems for some area residents.
NS filed the complaint in federal court in Akron as part of an ongoing lawsuit brought by the state of Ohio against NS in the Northern District of Ohio. The case accuses the railroad of violating numerous state and federal laws, including environmental laws, involving the derailment.
A report from data firm ICIS in Houston added that NS claims in its complaint that federal environmental laws require that all responsible parties contribute to cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or the Superfund law.
According to the ICIS report, parties included in the lawsuit include Oxy Vinyls, which was shipping VCM from its plant in La Porte, Texas; Dow, GATX Corp., Union Tank Car Co. and SMBC Rail Services. 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 rail cars involved.
None of the companies immediately responded to requests for comment.
A preliminary report from NTSB in late February cited an overheated wheel bearing as the cause of the derailment. The train was traveling at 47 mph at the time of the derailment, 3 mph below the speed limit for that type of train.
Officials with materials maker Oxy Vinyls LP — owner of the VCM being transported — and NS were questioned at a two-day government hearing June 22-23 at East Palestine High School. Officials gave differing views of the decision to burn off the VCM.
Oxy officials said they advised NS officials that a polymerization reaction, which could have caused an explosion, was not happening. NS officials countered that they made the decision to burn off the VCM because they observed what they believed to be multiple signs of polymerization.
Since the derailment, NS has spent more than $60 million on assistance to East Palestine, the company said. The firm is doing ongoing testing of air, water and soil in the area. Large amounts of contaminated water and soil also have been removed.
On July 5, Ohio Gov. Mike DeWine asked President Joe Biden to issue a Major Presidential Disaster Declaration relating to the derailment. In a statement, DeWine said he made the request so that the area could receive federal funding if at some point NS decides to end its support.