Settlement reached in Ohio train derailment case

A $310 million settlement between the US and Norfolk Southern—the company responsible for the Feb. 3, 2023, train derailment in East Palestine, Ohio—is a step in the right direction but still contains gaps, residents and activists say.

The settlement, announced May 23 by the US Department of Justice and the US Environmental Protection Agency, follows a March 31, 2023, complaint filed by the federal agencies against Norfolk Southern for unlawful discharge of pollutants, oil, and hazardous substances into the air, water, and soil.

Eleven cars of the train were carrying hazardous materials that spilled and fueled a large fire. In a controversial move, authorities released and burned vinyl chloride, a highly flammable carcinogen used for making polyvinyl chloride that was present in five of the cars. Many residents who were evacuated reported feeling sick after returning to their homes, while local waterways displayed rainbow sheens and dead fish.

The settlement, if approved by the US District Court for the Northern District of Ohio, would require Norfolk Southern to pay for long-term environmental and health monitoring and mental health services for the community. It would also pay a civil penalty and support improved safety measures for transporting hazardous materials via rail.

“It’s a positive step forward,” says Andrew Whelton, an environmental engineer at Purdue University who has conducted independent water and soil testing in the aftermath of the derailment.

Under the settlement, Norfolk Southern would submit to the EPA a 10-year monitoring plan for private wells, groundwater, and surface water, including two local creeks that were contaminated. The company would screen for compounds linked to the derailment and submit quarterly reports to the EPA. If Norfolk Southern detects contaminants at actionable levels, it would be required to undertake a cleanup with approval and oversight from the EPA.

Whelton has been recommending a hydrogeological study to figure out how long it would take for the contaminated water that flowed through the creeks and seeped into the ground to reach the private wells in the area. Such a study would help agencies figure out where the contamination is going and how fast it’s moving, so they know where to test and how long to keep testing, he says.

The settlement would also require Norfolk Southern to implement a $6 million cleanup and restoration of sections of the two creeks, Sulphur and Leslie Runs, where sediments are contaminated from past pollution not linked to the derailment. This process would require consulting with stakeholders including East Palestine representatives and Ohio state officials.

Additionally, Norfolk Southern would pay $25 million for a 20-year medical monitoring program—including physical examinations, metabolic blood tests, lung function tests, and X-ray imaging—for first responders and for residents living within 2 miles (3.2 km) of the derailment area. The process allows for referral to local mental health service providers and other specialists.

Erin Haynes, an environmental epidemiologist at the University of Kentucky who’s been conducting health surveys in the community since April 2023, sees potential to develop a database or registry that tracks the health of the individuals who’d be monitored. Not doing so would be a missed opportunity, she says.

Jami Wallace, an East Palestine resident turned activist, appreciates the planned investment in long-term monitoring. But “it’s nowhere near enough money,” she says. While the monitoring may catch illnesses, “who pays for the treatment, say, if someone has cancer?” she asks. Wallace also wonders how the settlement might help people who got sick because of the derailment and moved to other parts of the country.

For Krissy Hylton, another East Palestine resident, it’s the lack of trust in Norfolk Southern and the EPA’s oversight of the company’s work that remains a concern, even though she agrees that long-term environmental and health monitoring is the right move.

A hearing on final approval of the settlement is slated for Sept. 25. Meanwhile, also pending is a class-action lawsuit in which Norfolk Southern would pay $600 million to compensate individuals and businesses affected by the derailment.