EPA is issuing a unilateral administrative order to require Norfolk Southern Corporation to conduct necessary actions for cleanup activities and costs under the Superfund law associated with the massive hazardous substance release from a train derailment in Ohio, marking the transition from emergency response actions to a longer remediation phase.
“Let me be crystal clear, Norfolk Southern will pay for cleaning up the mess that they created and the trauma that they inflicted on this community. . . . In no way, shape or form will Norfolk Southern get off the hook for the mess that they created,” EPA Administrator Michael Regan said in a Feb. 21 briefing in East Palestine, OH.
The agency frequently issues such orders under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as they provide EPA with strong enforcement tools backed by statutory language that gives the agency wide latitude to prevent “imminent and substantial endangerment,” a term that courts have broadly defined, as well as authority to recover per-day penalties and treble damages for non-compliance.
But in this case the order comes as the Biden administration is taking significant political heat over what many residents and local officials charge has been a slow response to the Feb. 3 derailment near the Ohio-Pennsylvania border, which resulted in releases of vinyl chloride and several other hazardous substances.
EPA’s Feb. 21 order requires Norfolk Southern to undertake a number of activities related to site cleanup, including identification and cleanup of contaminated soil and water, reimbursing EPA for remediation offered to residents by EPA staff and contractors, and pay for EPA’s costs for work performed under the order.
EPA is also requiring Norfolk Southern to attend and participate in public meetings at EPA’s request and post information online as part of its order.