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EPA Orders Derailment Clean Up

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by Patrick J. Paul

On February 21, 2023, less than three weeks after a Norfolk Southern train derailment in East Palestine, Ohio, less than a mile from the Pennsylvania border, EPA issued a 77 page Unilateral Order to the company requiring it to remediate the chemicals spilled.  EPA had previously sent the railroad a letter advising of its potential liability under the federal “Superfund” law known as the Comprehensive Environmental Response, Compensation, and Liability Act, (CERCLA) and took this action in compliance with CERCLA section 106 (a).

EPA’s Order requires Norfolk Southern to clean up the environmental damage caused by the  derailment, to provide a copy of the Order to all contractors retained to conduct the remediation, and to ensure that all work conducted is done so in conformity with the Order itself.  EPA also provided notice of the Order to Ohio and Pennsylvania.

Air, water, and soil sampling and screening has been ongoing since the derailment.   Chemicals of concern associated with the derailment include vinyl chloride  and hydrogen chloride among others. EPA has assisted with indoor air monitoring of more than 550 homes under a voluntary screening program offered to residents.  No detections of vinyl chloride or hydrogen chloride were identified above levels of concern. 

Any willful violation, or failure or refusal to comply with any provision of the Order  could subject Norfolk Southern to civil penalties up to the maximum amount authorized by law — currently about $68,000 per day, per violation.