AKRON, Ohio (Legal Newsline) - Norfolk Southern is confused by a lawsuit brought by residents of East Palestine, Ohio, and a business there following the February derailment of one of its trains.
Michael Loyd, Zoey Spellman, Jennifer Gray and Moore's trucking sued Norfolk Southern in Ohio federal court in March under the Comprehensive Environmental Response, Compensation and Liability Act.
CERCLA seeks to hold polluters liable for cleanup costs at contaminated sites. But the plaintiffs have no responsibility to spend any of their own money on remediation, Norfolk Southern says, so why are they seeking compensation.
"Plaintiffs fail to plead specific facts which, if true, would establish the third element of a prima facie case for CERCLA recovery - that they have incurred 'necessary costs of response' that are consistent with the (National Contingency Plan)," a May 5 motion to dismiss says.
"In order to satisfy this element, alleged response costs must be both 'necessary' and 'consistent with the NCP.' The allegations in the complaint about costs Plaintiffs have incurred lack specificity and also fail to plausibly allege consistency with the NCP.
"Plaintiffs' bare statement of alleged 'response costs' is too cursory and devoid of specific facts to satisfy this essential element of a CERCLA claim."
Plaintiffs have alleged they were forced to spend on evacuation, temporary relocation and alternate water supply.
They allege the derailment, which caused the release of massive amounts of hazardous substances including vinyl chloride, butyl acrylate, benzene and other chemicals, into the air, groundwater, soil and surface waters in East Palestine.
They allege that Norfolk Southern had the most derailments of all railroad companies in Ohio during 2019 through 2022 with a total of 74 accidents and that Norfolk made changes to how top executives could qualify for large cash rewards regarding the "operating ratio." The plaintiffs claim this caused the increase in length of trains to lower operating costs with longer trains causing greater damage, pileups and fires.
They also claim Norfolk has a pattern of "run it until it breaks" and that crew members had been alerted by a mechanical alarm prior to the derailment. The plaintiffs allege Norfolk has also failed to properly clean up the hazardous chemicals, which has caused continued damage and increased the health hazards to their community's residents and environment.
The plaintiffs and the class seek monetary relief, interest and all other just relief. They are represented by Daniel Abraham, David Shroyer and Micheal Rapier of Colley Shroyer & Abraham Co., LPA in Columbus and D. David Altman, Justin Newman and Amy Leonard of AltmanNewman Co., LPA in Cincinnati.