File Photo: Source for Photo: FILE – In this photo taken with a drone, portions of a Norfolk Southern freight train that derailed the previous night in East Palestine, Ohio, remain on fire at mid-day, Feb. 4, 2023. (AP Photo/Gene J. Puskar, File)
(AP) A lawsuit alleging for the first time that people died because of the disastrous 2023 East Palestine train derailment has been filed ahead of Monday’s second anniversary of the toxic crash near the Ohio-Pennsylvania border amid a flurry of new litigation.
On Monday, Vice President JD Vance is also expected to visit the small community near the crash site that he used to represent as a senator, along with President Donald Trump’s newly confirmed head of the Environmental Protection Agency, Lee Zeldin.
The new lawsuit that will be made public later on Monday contains the first seven wrongful death claims filed against Norfolk Southern railroad — including the death of a 1-week-old baby. It also alleges the railroad and its contractors botched the cleanup while officials at the EPA and Centers for Disease Control and Prevention signed off on it and failed to warn residents about the health risks. Many of the other parties in the lawsuit cite lingering, unexplained health problems along with concerns something more serious could develop.
“Our clients want truth. They want transparency,” attorney Kristina Baehr said about the roughly 750 people she represents. “They want to know what they were exposed to, which has been hidden from them. They want to know what happened and why it happened. And they want accountability.”
The lawsuit provides some examples of the lingering effects on families, but it doesn’t include details about the deaths.
At least nine other lawsuits were filed over the past week by individuals and businesses that argue the railroad’s greed is to blame for the derailment and the $600 million class-action settlement doesn’t offer nearly enough compensation nor sanction the railroad enough to spur them to prevent future derailments. The dollar amount represents only a small fraction of the $12.1 billion in revenue the railroad generated in each of the past two years.
Dozens of rail cars careened off the tracks on Feb. 3, 2023, after an overheating bearing failed. Several of the cars carrying hazardous materials ruptured and spilled their cargo that caught fire. But the disaster was made worse three days later when officials blew open five tank cars filled with vinyl chloride and burned that toxic plastic ingredient because they feared it would explode.
Investigators from the National Transportation Safety Board determined the controversial vent and burn operation never needed to be done because there was evidence the railroad ignored that the tank cars were actually starting to cool off and wouldn’t explode. The state and local officials who ultimately made the decision to release and burn the vinyl chloride — generating a towering plume of thick, black smoke that spread over the town and region — have said they never heard anything suggesting the tank cars wouldn’t explode.
“The EPA had rules to follow and chose not to follow their own rules. The EPA was too busy trying to get the train back on track to protect the people,” Baehr said.
Officials didn’t immediately respond to questions about the new lawsuit and separate federal claims that were filed against the EPA and CDC. But in the past the EPA has defended the agency’s role in the vent and burn operation by saying they were only there to advise on the potential consequences and measure the resulting contamination.
Baehr said the EPA and CDC’s approach to the derailment followed a similar pattern she’s seen in other environmental disasters she’s been involved with like the Navy’s toxic spill of jet fuel that contaminated water in Hawaii. She said the agencies tend to downplay the health risks people face. Residents have expressed frustration with the data the EPA discloses and the refusal of the class-action attorneys to reveal what their own testing expert found.
A spokesperson for Norfolk Southern railroad said she couldn’t comment on the pending litigation. The railroad has agreed to the $600 million class-action settlement with residents who lived or worked within 20 miles of the derailment and a separate settlement with the federal government where Norfolk Southern pledged to pay for the entire cleanup and set up funds to pay for medical exams and drinking water monitoring. But the railroad did not admit any wrongdoing in either settlement.
Some people who lived near the derailment have started to receive payments for personal injuries as part of the class-action settlement, but nearly half of the settlement remains on hold as some residents appeal for higher compensation and more information about the contamination.
So the main payments of up to $70,000 per household won’t go out until the appeal is settled.
The nine other new lawsuits included claims by a pipe manufacturer, dog kennels and a winery that the derailment harmed their businesses in various ways, from staffing shortages to having to shut down or move because of customers’ concerns.
One business about a quarter of a mile (0.4 kilometers) from the derailment alleged cleanup work created “smoke, debris and odors” that reached their property and led to routine flooding. The dog breeder who owned a business in neighboring Pennsylvania blamed the toxic chemicals for causing the deaths of at least 116 puppies and three adult dogs.
