Lawsuit blames deaths on Ohio train derailment as Vance says US needs 'to do better on rail safety'

EAST PALESTINE, Ohio (AP) — A lawsuit alleging for the first time that people died because of the disastrous 2023 East Palestine train derailment was announced on Monday's second anniversary of the toxic crash near the Ohio-Pennsylvania border amid a flurry of new litigation.

On Monday, Vice President JD Vance visited the small community he used to represent as a senator and toured the cleanup with President Donald Trump’s newly confirmed head of the Environmental Protection Agency, Lee Zeldin, Ohio Gov. Mike DeWine and other dignitaries. He told a gathering of first responders and local elected officials that the town "will not be forgotten, will not be left behind.” Vance was a fledgling U.S. senator for Ohio when the fiery train accident took place.

In remarks following the tour and a community roundtable, Vance did not make entirely clear how much pressure the Trump administration will put on the railroads to continue improving safety or whether they will push for the bill Vance co-authored in response to the derailment. Three CEOs of the biggest railroads said last month they believe the administration will be supportive of the industry.

Vance said that he still believes “we continue to need to do better on rail safety in this country,” and he promised to work on it, but at another point he said it will be up to Ohio's two new senators — Republicans Bernie Moreno and Jon Husted — and their colleagues to pass it. Both Husted and Moreno accompanied Vance on Monday, but they were not given an opportunity to speak at the vice president's short briefing.

Standing in the village's firehouse, Vance said, “We are in it for the long haul in East Palestine. What does that mean? Well, one thing it means is that, of course, the environmental cleanup has to get done. It’s a tragedy and a shame that it wasn’t done during the last administration, but I guarantee you we’re going to finish the cleanup during this administration.”

Outside the event, a group of protesters held signs declaring, “Stop the Cover Up,” “Justice for East Palestine” and “We are Still Sick.” Vance pledged during his remarks that the Republican administration will be transparent about the clean-up progress.

Resident Misti Allison said she hopes Vance pays attention to more than just the business leaders he met with who are concerned about economic development. She said health issues have been downplayed ever since the derailment.

“Families deserve to understand the long-term health implications. They deserve to have a massive effort made in preparation to safeguard not just their futures, but those of their children,” Allison said.

What went wrong?

The newly filed lawsuit contains the first seven wrongful death claims filed against Norfolk Southern railroad — including the death of a 1-week-old baby. It also alleges the railroad and its contractors botched the cleanup while officials at the EPA and the Centers for Disease Control and Prevention signed off on it and failed to adequately warn residents about the health risks. Many of the other parties in the lawsuit cite lingering, unexplained health problems along with concerns something more serious could develop.

“Our clients want truth. They want transparency," attorney Kristina Baehr said about the roughly 750 people she represents. “They want to know what they were exposed to, which has been hidden from them. They want to know what happened and why it happened. And they want accountability.”

The lawsuit provides some examples of the lingering effects on families, but it doesn't include details about the deaths.

At least nine other lawsuits were filed over the past week by individuals and businesses that argue the railroad's greed is to blame for the derailment and the $600 million class-action settlement doesn't offer nearly enough compensation nor sanction the railroad enough to spur them to prevent future derailments. The dollar amount represents only a small fraction of the $12.1 billion in revenue the railroad generated in each of the past two years.

What happened two years ago?

Dozens of rail cars careened off the tracks on Feb. 3, 2023, after an overheating bearing failed. Several cars carrying hazardous materials ruptured and spilled their cargo that caught fire. But the disaster was made worse three days later when officials blew open five tank cars filled with vinyl chloride and burned that toxic plastic ingredient because they feared they would explode.

Investigators from the National Transportation Safety Board determined the controversial vent and burn operation never needed to happen because there was evidence the railroad ignored that the tank cars were starting to cool off and wouldn't have exploded. The state and local officials who decided to release and burn the vinyl chloride — generating a massive plume of thick, black smoke — have said they never heard anything suggesting the tank cars wouldn't explode.

“The EPA had rules to follow and chose not to follow their own rules. The EPA was too busy trying to get the train back on track to protect the people,” Baehr said.

EPA spokeswoman Molly Vaseliou declined to comment on the litigation, but affirmed the agency's commitment to improving public health. CDC officials didn't immediately respond. In the past, the EPA has defended its role by saying they were only there to advise on the potential consequences of burning the vinyl chloride and measure the contamination. For his part, Zeldin promised in brief remarks to keep the village a priority and complete the cleanup as soon as possible

Baehr said the EPA and CDC's approach to the derailment followed a similar pattern she's seen in other environmental disasters, including the Navy’s toxic spill of jet fuel that contaminated water in Hawaii. She said agencies tend to downplay potential health risks. Residents have expressed frustration with the data the EPA discloses and the refusal of the class-action attorneys to reveal what their own testing found.

How did the railroads respond?

A Norfolk Southern spokesperson declined to comment on the litigation, but the railroad took issue with Vance's suggestion that it hasn't lived up to the promises it made to help East Palestine recover after it committed more than $115 million to help. “We’ve made significant progress, and we aren’t done,” spokeswoman Heather Garcia said. “Our team on the ground continues to ensure we’re meeting the priorities of the community.”

The railroad has also agreed to a $600 million class-action settlement for people within 20 miles (32 kilometers) of the derailment and a separate settlement with the federal government in which Norfolk Southern pledged to pay for the cleanup, medical exams and drinking water monitoring. The railroad did not admit any wrongdoing in either settlement.

Norfolk Southern and other major railroads promised to improve safety after the crash by installing additional trackside detectors to spot mechanical problems before they cause a derailment. Federal officials say those steps haven't improved safety meaningfully, and Vance's bill that would have required additional changes never passed.

The rail unions on Monday again asked the major railroads to join a federal program that would let workers anonymously report safety concerns and members of Congress made plans to renew their push for legislation.

The safety director for the largest SMART-TD rail union that represents conductors, Jared Cassity, said despite all the concerns that the East Palestine derailment highlighted “The fact is that very little has changed.”

What compensation has the town received?

Some nearby residents have started to receive personal injury payments as part of the class-action settlement, but nearly half of the settlement remains on hold while some appeal for higher compensation and more information about the contamination.

The main payments of up to $70,000 per household won’t go out until the appeal is settled.

Last week, Norfolk Southern agreed to a $22 million settlement for East Palestine that includes $13.5 million the railroad has already provided for upgrades to the water treatment plant and to replace police and fire equipment. The railroad is also paying $25 million to upgrade a park. That's all part of the $115 million the railroad cited.

What about the other lawsuits?

The nine other new lawsuits included claims by a pipe manufacturer, dog kennels and a winery that the derailment harmed their businesses. One business alleged cleanup work created “smoke, debris and odors” and led to routine flooding. The dog breeder said toxic chemicals killed at least 116 puppies and three adult dogs.

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Funk reported from Omaha, Nebraska. Associated Press writers John Seewer in Toledo, Ohio, and Mead Gruver in Cheyenne, Wyoming, contributed to this report.