'Never approved for vinyl chloride service' - Norfolk Southern alleges negligence and oversight in lawsuit
Writers note: The information contained in this article comes from a lawsuit filed by Norfolk Southern. Information conveyed is based on claims made in the court filing, and should not be taken to represent the objective truth of events. 21 News is working diligently to verify these allegations, and will continue to provide the community with updates on the truthfulness of the levied claims as information becomes available.
In a lawsuit against several companies who owned and shipped railcars involved in the February 3rd derailment, Norfolk Southern alleges that a pattern of negligent recordkeeping and false inspections should make those companies liable for part of the damages they've payed for.
The lawsuit, available in full at the bottom of this article, claims that Oxy Vinyls LP, GATX Corporation, General American Marks Company, Trinity Industries Leasing Company, SMBC Rail Services LLC, Dow Chemical Incorporated, and Union Tank Car Company each bear some of the responsibility for the catastrophic train derailment in East Palestine in February.
The suit alleges a spree of negligent activity by each of the defendants, including claims that improper records were kept on multiple train cars, the cars were improperly maintained, guidelines on material safety data sheets were not followed, and that one tank car, owned by GATX Corporation, was "never approved for vinyl chloride service," which is required by a special regulatory provision.
The suit seeks to allow Norfolk Southern to seek reimbursement and future compensation from the defendants for the costs they have incurred under a suit from the Environmental Protection Agency earlier this year.
In the closing section of the suit, Norfolk Southern asks the court to "order [the companies] to pay their fair and equitable share" of costs, declare what those companies' appropriate share is, "grant Norfolk Southern costs and interests as allowed by law," and provide other relief as the court deems "just and proper."
While the suit does not provide an estimate for the costs thus far incurred by Norfolk Southern, it does say in two places that the bill is "well in excess of $1 million" and elsewhere states that Norfolk Southern has "paid millions" for the comprehensive environmental response in East Palestine.
Seven companies are named in the suit, and a total of 10 counts alleged in the document. Of those 10 counts, 8 name Oxy Vinyls LP, making them the most frequently cited. Oxy Vinyls is named as the sole defendant on three counts: counts two, four, and seven.
The suit alleges that Oxy Vinyls LP provided inaccurate documentation about several rail cars it shipped on Norfolk Southern's train that day. Among them were the 5 vinyl chloride cars that derailed, referred to in the suit as Cars 26, 27, 28, 29, and 53. Of those 5 cars which Oxy Vinyls shipped, they also owned three of them: 27, 28, and 53.
According to the suit, the owner and shipper of each car also bear responsibility when mechanical components on those cars fail. The suit also says that the owner and shipper of each car bear their own responsibility to more thoroughly inspect each car than the train operator would, as operators are only required to conduct a ground level check to identify visible defects.
As a component of these inspections, car owners and shippers must provide the operator with proper documentation about the condition, contents, and status of each car when they are turned over to the operator.
While Norfolk Southern says they did receive this documentation, they allege that in many cases, it was inaccurate or indicated that certain cars in the train were not properly outfitted for the hazardous materials they were transporting.
The lawsuit alleges that the safety data sheet, or SDS, which is required to be provided by a chemical company to any party who handles a product considered hazardous, that was provided by Oxy Vinyls for their vinyl chloride shipment was either inaccurate, or that Oxy Vinyls was misrepresenting their own materials when discussing how to handle the vinyl chloride leak in the days following the derailment.
The root of this confusion stems from a process called polymerization, by which some chemicals will change into a solid state. According to the suit, the polymerization of vinyl chloride is the primary reason why the decision was ultimately made to "vent and burn" the toxic chemical following the derailment.
Norfolk Southern claims that Oxy Vinyl's SDS for vinyl chloride says "twelve times in various combinations that vinyl chloride 'may explode if heated,'" but when consulted during cleanup efforts, told first responders that polymerization "was not occurring and could not occur, each with varying degrees of certainty."
According to the suit, first responders were told by Oxy Vinyls officials who were not on scene and speaking from their headquarters in Dallas, Texas that "polymerization was not possible under the derailment conditions and that 'stabilized' vinyl chloride—the same vinyl chloride that had been exposed to extreme conditions for nearly two full days—is incapable of polymerizing under 'normal' conditions."
Oxy Vinyls officials also allegedly told first responders on February 5th that at least three of the vinyl chloride cars were nearly empty, despite the determination being "based in part on temperature readings that responders considered inaccurate."
Norfolk Southern also alleges in the suit that Oxy Vinyls further used improper materials in their cars according to the information provided on their own SDS, claiming that the SDS said exposure to aluminum and copper could cause "explosive or violent polymerization" of the vinyl chloride. When surfaces of the train cars were sampled and tested, according to the suit, they came up positive for copper and aluminum in several places.
Car 29, owned by GATX Corporation and shipped by Oxy Vinyls, is mentioned in specific for several regulatory issues. The suit alleges that the car was retrofitted without regulatory approval with a make and model of pressure release valve not mentioned on the car's Association of American Railroads 4-2 certificate, which car owners and shippers provide operators to verify the make, model, and condition of any rail cars an operator transports.
The valves were further retrofitted from the AAR 4-2 specified 125 psi start valves to a valve that requires nearly double the pressure to open - 247.5 psi. Car 29, according to the lawsuit, was "never approved for vinyl chloride service, which has a special regulatory provision."
All three cars owned by Oxy Vinyls, according to the suit, had incomplete AAR 4-2 forms and modifications that were not documented or approved—yet still told Norfolk Southern that "all of its tank cars and components were suitable for vinyl chloride transportation."
Another major focus on the suit is the condition of Car 23, the car which suffered the faulty bearing which caused the derailment. According to the suit, guidelines set forth by the manufacturer of the bearings on the rail car suggest that rail cars "should be moved one car length every six months to distribute lubricant over the bearing surfaces."
The suit alleges that throughout Car 23's life, it was stagnant for more than six months not once, but twice—"first for 565 days ending in August 2018 and again for 206 days ending in May 2019."
According to the suit, long periods of stagnation can cause the bearing grease to separate and degrade the bearing. Norfolk Southern says rail car owners and shippers are responsible for the maintenance of these bearings, as they are not possible to inspect without disassembling the bearings from the wheelset.
Because of the above neglect alleged in the suit, Norfolk Southern says it should not be held solely responsible for the incident, and therefor should not be held solely liable for all of the damages and cleanup efforts they've been asked to pay for by the EPA.
In the suit, Norfolk Southern also specifically requested a jury trial.