Lawyers accuse Norfolk Southern of destroying evidence in toxic train wreck

Lawyers for plaintiffs in one of the class action lawsuits against Norfolk Southern accused the railway company of planning to intentionally destroy crucial evidence in the lawsuits over the train derailment in East Palestine that released toxic fumes into the air and water.

"Without any discussion with Plaintiffs' counsel, Defendants unilaterally chose to make the railcars available for inspection only on February 28, 2023 and March 1, 2023," lawyers for Andrew Erdos and David Anderson, both Pennsylvania residents with business within five miles of the train derailment site, argued in a filing on Friday. "After that time period, Norfolk Southern's counsel advises that the railcars 'will be removed or otherwise destroyed so that Norfolk Southern can continue its work at the site.'"

The lawyers say that the railway's lawyers have had "unlimited access to the derailment site" since the Feb. 3 crash, when 38 cars of a 149-car train — 11 of them carrying hazardous materials — derailed in East Palestine, an Ohio city near the Pennsylvania border. The train caught fire, burning for several days.

Norfolk Southern "decided to release and burn off the vinyl chloride," sending "a large plume of thick black smoke into a mushroom cloud, which dispersed toxic hydrogen chloride and phosphene gas into the atmosphere" on Jan. 6, according to the lawsuit.

"Plaintiffs and their experts have not yet had any time to view and inspect the derailment site, nor have they been given access to any relevant evidence, including the 11 hazardous material railcars," the plaintiffs' injunction request says. "Norfolk Southern has had unfettered access to the wreckage it caused and the ability to do testing, take photographs, collect measurements and samples, and conduct any other discovery it so chose for the last three weeks. Now, Norfolk Southern has unilaterally decided to give Plaintiffs' experts access to its carnage for only two days to conduct any investigation that is needed."

The lawyers requested a temporary restraining order and an injunction barring Norfolk Southern from moving the cars until all their experts have had a chance to examine the site.

The legal team for Norfolk Southern insisted that it was engaging in necessary remediation and clean-up efforts pursuant to state and federal agencies.

"The EPA, State of Ohio Environmental Protection Agency ('Ohio EPA'), and the residents of East Palestine, Ohio all want to remove hazardous waste and other waste from the site as quickly as possible," the defendants argued, noting that the federal Environmental Protection Agency (EPA) gave deadlines as early as March 4 for Norfolk Southern to remove some of the contaminated matter.

Specifically, the EPA ordered Norfolk Southern to remove contaminated soil from the site by March 4, 2023 and residue in tank cars by March 10, 2023. The railway must remove and dispose soil beneath the first track by March 10, and from the second track by March 20, 2023.

The EPA also ordered that sampling of the soil must end by March 31, 2023, the defense lawyers said.

The defense lawyers also argued that federal law limits U.S. District Judge Benita Y. Pearson's ability to "challenge EPA clean-up decisions" and that the plaintiffs are trying to "hold the public's interest hostage to their own interests" by blocking "full and complete remediation" of the derailment site.

In a ruling on Monday, Pearson, a Barack Obama appointee, urged the parties to follow a timeline that suggests a compromise of sorts.

"In balancing the importance of Plaintiffs having the opportunity to collect the evidence necessary for litigation and the urgent need for remediation to limit the impact on the public's health and safety, the Court proposed a solution that does not extend the EPA's provided timeline for cleaning up the derailment site but, rather, focuses the allotment of time given Plaintiffs to inspect and collect evidence, while allowing Defendants sufficient time to remove the 9 remaining rail cars by 3/10/2023," the order says, according to the federal docket. Pearson's proposal would give the plaintiffs until Thursday, if necessary, to inspect the five cars that contained vinyl chloride, and would allow Norfolk Southern to "safely dispose" of those five rail cars after that time.

Four cars that do not contain vinyl chloride would be relocated "with the goal of preserving as much evidence as possible" and would be available for the plaintiffs to inspect and collect evidence as needed, Pearson wrote.

The parties were ordered to discuss the judge's recommendation and return to court Monday afternoon.

According to the railway company's latest update, it has reimbursed the East Palestine Fire Department for $825,000 for fire equipment used in responding to the derailment, donated $300,000 to the East Palestine school district, delivered dozens of water pallets to the community, provided air purifiers to more than 100 homes, and given financial support in the form of gift cards, flower purchases, and a $1 million community fund.