The East Palestine Derailment: Two Years Later

It has been over two years since a Norfolk Southern train derailed in East Palestine, Ohio, but the effects of that ominous plume that briefly dominated newsfeeds persist. On March 14, 2023, Ohio Attorney General Dave Yost filed a civil lawsuit against Norfolk Southern Railway Company and its parent, Norfolk Southern Corporation. This column provides an overview of the lawsuit and a summary of its proceedings. 

On February 3, 2023, Norfolk Southern Train 32N derailed as a result of an overheating and/or failing wheel bearing. According to the complaint, thirty-eight cars derailed, eleven of which were carrying hazardous materials, including vinyl chloride (the “VC” in PVC pipes).  

Retrieved from WOSU 89.7 NPR News

On February 6, 2023, authorities conducted a “controlled release and burn” of vinyl chloride from at least five railcars after monitoring revealed the risk of an uncontrolled explosion. This controlled burn resulted in the well-documented, billowing tower of black smoke.  

Before stating its claims, the complaint scrutinizes Norfolk Southern’s derailment history, especially in recent years. Citing to derailments from February 2023 and March 2023, the complaint argues that Norfolk Southern should have taken, but did not take, preventative measures and should have been prepared to adequately respond to the East Palestine derailment.  

The complaint highlights the following harms to the State: costs for assessment, analysis, and removal of hazardous materials from the soil and water, restoration costs, mitigation costs, compensatory costs to the public for loss of use of Ohio’s natural and public resources, and damages to the regional economy and state-owned properties, and several others. 

Counts One through Three are general claims under the federal body of law known as CERCLA: the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.  

Counts Four through Ten involve violations of hazardous waste provisions of the Ohio Administrative Code. Interestingly, the complaint seeks to establish Norfolk Southern as a “hazardous waste facility” due to its operations involving hazardous waste disposal.  

Counts Eleven through Fifty are identical: Unauthorized Discharge to Waters of the State. Those Counts restate the law at issue, O.R.C. §§ 6111.01(A)(1)(1) and (2), recite the Defendant’s actions from February 3, 2023, identify several state waters, and seek to establish Norfolk Southern’s conduct as pollution and public nuisance to State waters. The numerous identical counts correlate to individual rail cars.  

The remaining Counts are various common law and statutory nuisance and negligence claims.  

Since being filed, the case has undergone several changes.  

In June 2023, Norfolk Southern filed a Third-Party Complaint against several other companies (Oxy Vinyls LP, GATX Corporation, Dow Chemical Inc., to name a few). By July 2023, the United States of America was joined as a plaintiff. Motions to dismiss and replies filled the docket until the end of the calendar year.  

As a fun side note, many of the attorneys representing Norfolk Southern and Third-Party Defendants filed motions to appear pro hac vice (“for this turn”), which allow an attorney not licensed to practice in a specific jurisdiction to do so on a particular occasion. 

In March 2024, Norfolk Southern’s Third-Party Complaint was dismissed in its entirety. 

In September 2024, a $600 million dollar class action settlement between Norfolk Southern and residents of East Palestine was finalized. 

On February 2, 2025, a lawsuit was filed against Norfolk Southern in the Franklin County Court of Common Pleas, alleging that at least seven people have died because of the East Palestine derailment. 

The most recent status reports in the Attorney General Yost’s case against Norfolk Southern were filed on February 12 and 13, 2025.