Norfolk Southern Execs: Heed Love Canal’s Lessons and Pay Up or Else!

If Norfolk Southern (NS) railroad officials were smart about damage-control costs for their East Palestine chemical derailment in Ohio, their paramount priority should be immediate offers to buyout all affected houses at assessment value in a 25-mile radius of that February 3 freight train wreck.

So far only one NS buyout offer is known—but refused.

As each day goes by, so does the increasing health devastation from air, soil, and groundwater to the area’s furious residents. With soil, air, and water testing, and remediation—“people” concerns—given far less priority than profits, forced change may be closer than NS can imagine.

So company officials would be wise to finally practice what those from Occidental Chemical Corporation did to mitigate that world-famous, near-comparable, ruinously expensive, historic environmental disaster (1942-1995) at Love Canal in upstate New York . And it is still very much alive.

Love Canal, in fact, was to become the origin of the federal government’s Superfund act in 1980 addressing abandoned environmental waste dumps. Cost reimbursements by Occidental to New York and U.S taxpayers largely had to be made—under strict enforcement by the Department of Justice prosecutors and to FEMA (Federal Emergency Management Agency).

From 1942 to 1952, Occidental subsidiary Hooker Electrochemical Company had offloaded and buried in clay thousands of drums containing nearly 22,000 tons of its toxic waste: 248 chemicals. Some were cancer-causing. Others were genetically damaging. Among them were dioxin, halogenated organics, pesticides, PFAS (polyfluoroalkyl “forever” substances), and chlorobenzene.

Occidental sold the canal property in 1953 for one dollar to the Niagara School Board and with core drilling showed board members chemical waste at the four-foot level. It also vainly battled for the land to be used in perpetuity as a park or for surface use only, certainly not a housing development, schools, and buildings. Moreover, its protective deed specifically warned about those buried chemicals in future sales:

“No claim, suit, action or demand of any nature whatsoever shall ever be made of the grantee, its successors or assigns, for injury to a person or persons, including death resulting therefrom, or loss of or damage to property caused by, in connection with or by reason of the presence of said industrial wastes.”

By the 1970s, the drums were leaking. Contents were migrating to surrounding soil and waterways, thanks to an “improperly installed” sewer system built by New York state in 1969. In 1972, the first complaints began about chemical odors. By 1977 it was watery-substance seepage into basements, backyards and onto a school’s playground.

Seepage had become a recognized and official health issue by May 1980. The EPA (Environmental Protection Agency) announced residents’ blood tests “showed chromosome damage [and]….they were at increased risk of cancer, reproductive problems, and genetic damage.” Immediate action by Occidental and EPA—as at the 1986 Chernobyl nuclear meltdown in Ukraine— recommended evacuation of 950 families and the company’s next decision to buy nearly a thousand contaminated homes.

Occidental next asked state and federal governments for loans of taxpayer revenues to cover buyouts, ongoing inspections and remediation of air, groundwater, and contaminated soil—and, finally, fencing the 70-acre site. Five-year EPA inspections and “fixes” are still required.

Buyouts began in August 1978. The first 240 houses cost New York taxpayers $10 million (today’s value: $45,900,000) with reimbursements pending. The first 226 houses were demolished in 1982 with the remainder destroyed or refurbished by 2004 for development of Black Creek Village, another subdivision.

Occidental’s next major expense was $20 million dollars (today’s value: $60 million ) from a December 1983 class-action, a health-related lawsuit by 1,328 residents. But the bottom-line loss of $129,000,000 (today’s value: $381,840,000 ) came in late December 1995 in an out-of-court settlement to the Justice Department for the government’s cleanup costs. Though other lawsuits may still be pending, total cost to Occidental over 21 years has been $400 million (today’s value: $632,000,000).

So, unlike Norfolk Southern officials, Occidental leaders placed attention to people’s needs first, ahead of public image and testing and remediation of air, groundwater, and soil. They knew failure to settle up with the affected could become a national black-eye for the.

That infamous environmental case is a significant departure from how Norfolk Southern (NS) railroad has been handling its February 3 disaster in East Palestine and environs. It characterizes the industry’s nearly two centuries of contempt for people and businesses on trackage right-of-ways.

Judging from its current actions, NS officials seem to be using the railroad industry’s ancient playbook on causing wrecks: ignore victims, deny responsibility, stall for years on everything from damaged buildings and house buyouts and investigations to adequate remediation of the surrounding environment. Not to mention countersuing claimants, knowing it will cost a fortune, take a decade at least for a verdict—which if against railroads—can be appealed.

Besides, the current federal fine for a single safety violation has been only $225,455. The law, instead, should simply stipulate “covering all governments’ costs.”

The East Palestine disaster case is generally familiar to readers following initial media coverage, but not necessarily its crucial particulars of the last few weeks.

The event started about 9 p.m. on February 3 , when a NS freight train of 150 cars was heading through Ohio to Conway PA. Videos began showing a wheel on fire —attributed to an overheated wheel bearing —as it moved toward the Pennsylvania state line.

Suddenly, over 50 cars derailed at East Palestine, Ohio (pop.: 4,917 ). Twelve by then were on fire. That threatened 10 tanker cars carrying toxic chemicals and combustible materials (ethylhexyl acrylate, isobutylene and ethylene glycol monobutyl ether). Five contained vinyl chloride gas which, if ignited, would explode and release cancer-causing dioxide.

Fires on the cars were so intense, they were beyond firefighters’ immediate response, but not NS and federal regulators. NS sent in a 30-person team to clear tracks for other trains , customary in wrecks. Meanwhile, chemicals from overturned tankers had begun leaking into nearby waterways, groundwater, storm drains, and air.

By morning, officialdom —Ohio Gov. Mike DeVine, EPA teams (Environmental Protection Agency), NS agents, and East Palestine’s sheriff and fire chief— huddled onsite to fret about the next action: setting those five cars of vinyl chloride gas on fire to prevent an explosion. Seemingly, only then did most think about the consequences to the people of East Palestine and environs.

Perhaps one of those decision-makers did remember the eerily similar circumstances in 2013 when an unattended runaway train carrying crude oil jumped the tracks causing the fire destroying the Quebec village of Lac-Megantic and killing 47. The BBC reported that all buildings and houses had to be razed and that “millions of litres of oil seeped into the soil and the nearby Chaudiere river.”

So the official “dump-and-ignite” date was made for February 6 by DeWine and the town’s fire chief. But at least rushing to issue an evacuation order February 4 and 5 alerting, they claimed, all in the one-by-two mile radius of the wreck. An estimated 5,000 fled.

One inducement was FEMA’s (Federal Emergency Management Agency) hand-delivered notice that NS would pay a million dollars for householders’ “temporary lodging, food, clothing, and other necessities” for six weeks if their houses needed decontaminating.

And an NS spokesman announced in mid-February that the company would be giving another payment for a “Community Giving Fund” to be managed by an East Palestine committee. He added that the Red Cross had been given $25,000 to set up immediate relief to residents.

Such payments were a pittance of NS’s $3.7 billion profit in 2022 and would be covered either by insurance or out of taxpayer revenues as a business writeoff for 2023.

The EPA “ordered  Norfolk Southern to identify and clean up contaminated soil and water, reimburse it for cleaning homes and businesses and attend public meetings and take other measures. If the company failed to complete those actions, the agency would ‘seek to compel Norfolk Southern to pay triple the cost’ of the work.”

NS then made the mistake of boasting about its responsible stance to an estimated 1,500 households for, say, $5,000 each to its small portion of evacuees. Those beyond that two-mile line would get nothing, they learned, setting off outrage from thousands.

These were the first of NS’ monumental series of mistakes starting just before the main event of February 6 when 115,000 gallons of vinyl chloride from those five cars was poured into a trench and ignited. The explosion, the fire and its now-famous black cloud of 1.1 million pounds of dioxide fell over thousands of miles—including Pittsburgh to the north—and burned for days . It contaminated air, groundwater, and soil, including farm acreage for commercial crops and, thus, us consumers. Levels of dioxide in the soil at the wreck site itself later proved to be hundreds of times higher than federal cancer-risk thresholds.

Ohio’s Natural Resources Department reported finding 3,500 dead fish in area waterways, including the Ohio river, estimating the kill starting two days after the “controlled burn.” Pet owners in surrounding regions reported significant suffering and deaths.

Meantime, NS told EPA it would take care of testing houses and buildings for toxic residue. Perhaps EPA itself didn’t realize the railroad hired one of the legal defenders of the tobacco industry. CTEH (Center for Toxicology and Environmental Health) As the joint investigative team of ProPublica and The Guardian told readers about that company’s history:

“CTEH quickly became a go-to contractor for corporations responsible for industrial disasters. Its bread and butter is train crashes and derailments. The company has been accused repeatedly of downplaying health risks.

In since-deleted marketing on its website, CTEH once explained how the data it gathers about toxic chemicals can be used later to shield its clients from liability in cases brought by people who say they were harmed.”

For East Palestine householders, the team reported CTEH designed limited indoor tests. As to testing during the evacuation, though accompanied by EPA staffers, the CTEH teams swiftly visited houses using limited equipment. So they were unable to provide a complete study of the explosion’s many chemicals before pronouncing a house “clean” and speeding off to the next house.

Such “testing” enabled the fire chief on February 8 to lift the evacuation order because NS said the air and water testing showed houses and buildings were safe. Governor DeWine added that air quality samples were below “levels of concern.”

These lies were exposed when evacuees flocked back to their homes and instantly detected contamination by smell, touch, inhaling, and drinking tap water. CNN reported:

“The most common symptom among the nearly 170 people observed by a doctor was headache – 74% of the respondents. Sixty-four percent of respondents reported anxiety, 61% reported coughing, 58% reported fatigue/tiredness and 52% reported irritation/pain/burning of the skin.” Yet NS kept insisting air and drinking water were safe while claiming it had created a long-term medical compensation fund.

Still insisting tap water was safe, DeWine had East Palestine’s mayor, fire and police chief and others visit two households by February 17 to drink tap water and agree with him. He further vouched for EPA’s early tests and the agency’s continued collecting and testing water. Considering the spike in bottled water in the area, most residents were unconvinced.

Things for NS went downhill after that, especially for chief executive officer Alan Shaw and subordinates concerned about company costs, its image, their salaries, and investors. Stocks have dropped steadily from a 52-week high of $291.55 per share to $206 by mid-March.

Angry area residents invited NS executives to a town meeting on February 15 for answers from their $55 billion company about its physical and financial responsibilities to the area. Shaw signed off on the company statement refusing officers’ participation ostensibly because of concerns about their physical safety.

Though he then met privately with East Palestine officials, he was careful not to face East Palestinians at town meetings. Two weeks later he relented and sent an official to a raucous public meeting of frustrated and jeering residents (“Don’t lie to us!”) and walkouts. His man apologized profusely for the wreck, dodged questions about house payoffs, and pleaded: “ We’re going to do the right thing. We’re going to clean up the site.”

It didn’t help that former president Donald Trump showed up on February 22 with pallets of “Trump bottled water” and cleaning supplies to criticize the FEMA and EPA teams and the absence of president Biden in Ukraine. By then, even Trump’s greatest boosters in the region knew he was the one who had loosened rail-safety regulations causing the derailment.

Worse for NS, two days later famed environmental activist Erin Brockovich arrived in East Palestine in the first of three notable visits—February 24, March 2, 13. She brought legal and environmental experts to town hall meetings educating residents about their legal rights and to hear their problems, medical concerns to NS house buyouts—and gripes about EPA’s slowness, and that Transportation Secretary Pete Buttigieg had stalled for three weeks before visiting.

She told the media that people were “getting the total run-around” in what was a “classic cover-up” of an environmental disaster. “They have already lost everything and their future,” she said. But fury and the visits helped unite East Palestine against NS and disappointment in delayed responses by the government, particularly EPA.

The next disturbing event for Shaw and his team was a bipartisan Senate bill (The Railway Safety Act of 2023 ) to clean up industry practices, submitted March 16 by Ohio Democrat Sherrod Brown and five cosponsors. Described by The Lever, it:

“…limits train lengths, requires two-person crews on freight trains, strengthens transparency requirements for hazmat trains, sets standards for infrastructure maintenance, and increases the maximum fines for safety violations.”

Unfortunately, the railroad industry for decades always has successfully “influenced” Congress to protect its interests. Shaw apparently figured nothing would change. Not even passage of yet another law nationalizing if taxpayers still had to pay the entire cost of wrecks. Currently, it has 200 lobbyists formerly with the government and, in the last two election campaigns, the industry donated $14 million to pro-rail candidates.

So when the Senate Environmental and Public Works committee invited him to testify March 9 about the company’s role in the derailment, he decided it was the perfect public forum to present NS’s formal apology to East Palestine and other affected areas and vow to “make it right” .

Besides, the day before he testified, heavy support came with the company’s “six-point plan” to “immediately enhance the safety of its operations.” It was an obvious attempt to stymie and stall the Senate bill by assuring the public and freight users that NS was mending its ways.

Plan contents involved increasing “hot bearing detectors” and reducing location spacing, plus developing an automated digital inspection program using artificial intelligence technology (AI), and to “support a strong safety culture.”

Shaw ignored immediate criticism that the points were “couched in vague, non-specific language” such as “evaluating” and “developing plans.” AI automation meant further slashing payroll, a point instantly understood and attacked by angry NS’s personnel.

Shaw’s misfortune intervened. Three hours before he was to testify, another NS train derailed near Piedmont, Alabama, dumping 30 cars off an embankment. None carried hazardous materials, officials insisted. And three weeks previously, 30 cars of a NS train derailed near Detroit, but the tanker with liquid chlorine remained upright, the media was told.

The Alabama derailment was followed by another NS freight train wreck at Springfield, Ohio of 212-cars, 50 more than at East Palestine. Though company officials denied tanker cars contained chemicals or other toxic materials, a shelter-in-place order was issued covering a 1,000-foot radius from the tracks.

Total NS derailments reported in the last 20 years: 3,397.

In the hearing, Shaw faced a buzz saw of questions by senators Bernie Sanders and Jeff Merkley. Would NS end its breakneck PSR (precision-scheduling railroading)? Would it guarantee seven paid sick leave to its 15,000 employees? Would stock-buybacks—$10 billion to wealthy investors—to boost stock’s value end before safety problems were solved? Would NS cover long-term health-care costs for East Palestinians? The media did not reveal whether Shaw was braced about adding a second crewman to trains or whether NS would follow Occidental’s path in buying up all contaminated houses and buildings and permanent remediation.

The CEO’s artful dodging and pleas (“everything is on the table” ) indicated answers to all such key questions was “no.” He knew Congressional payoffs would kill the railroad bill. And Biden seemed unlikely to double-cross NS with an Executive Order mandating specific safety changes or touch the buyback issue.

What Shaw, his subordinates, and stockholders couldn’t anticipate, however, was the state of Ohio’s filing a federal lawsuit March 14 against NS over its East Palestine wreck. The 58-count complaint covers violations of federal and Ohio laws about violations of hazardous waste, water and air pollution, and solid waste.

Another violation involving monumental expense for NS was Ohio’s Comprehensive Environmental Response, Compensation, and Liability Act. That meant reimbursement of current and future costs to the state. The action also would force NS into future soil and groundwater monitoring of “surrounding areas and beyond.”

Now, if Shaw and his cohorts then try to foist all those expenses onto American taxpayers with, say, the usual federal long-term loans, they could be denied by public-minded juries and judges. If defaulted, the Justice Department would sue NS either into bankruptcy or nationalizing operations.

Railway workers are for nationalization, says progressive writer John Nichols, citing public-takeover precedent from World War I. He quotes members of Railway Workers United, an inter-union of rank-and-file railroaders whose litany of their long-time complaints might be solved by public ownership:

“On-time performance is in the toilet, shipper complaints are at all-time highs. Passenger trains are chronically late, commuter services are threatened, and the rail industry is hostile to practically any passenger train expansion. The workforce has been decimated, as jobs have been eliminated, consolidated, and contracted out, ushering in a new previously unheard-of era where workers can neither be recruited nor retained. Locomotive, rail car, and infrastructure maintenance has been cut back. Health and safety has been put at risk. Morale is at an all-time low.”

Given NS’s track record, nationalization may be a remedy whose time has finally come if its profits are not used to pay all expenses for the East Palestine wreck. Of course, Shaw and his team could break the industry’s tradition and heed Occidental’s lessons about Love Canal and “pay up or else.” Occidental did not go bankrupt in accepting its moral and fiscal responsibilities to the public.

We, taxpayers, can hardly wait for NS’s decision.