In a decision with major ramifications for railcar owners, an Ohio district judge granted B&D’s motion to dismiss Norfolk Southern's third-party Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) claims against B&D’s client, Union Tank Car Company, for cleanup costs at the East Palestine derailment. State of Ohio v. Norfolk Southern Corporation et al., 2024 WL 964597 (N.D. Ohio Mar. 6, 2024).

After a Norfolk Southern-operated train derailed in East Palestine, Ohio in February 2023, the U.S. Environmental Protection Agency (EPA) and State of Ohio sued Norfolk Southern under CERCLA and state law for costs of cleaning up contamination caused by the derailment.  Norfolk Southern subsequently brought unprecedented third-party claims against the owners of several of the railcars that happened to be derailed in the accident.  B&D filed an early motion to dismiss arguing under the plain language of CERCLA that its client Union Tank Car was not liable as an “owner or operator” of its railcar during its transportation by Norfolk Southern as a common carrier.  The argument raised issues of first impression. 

In the first decision on the liability of a railcar owner under CERCLA, U.S. District Judge John R. Adams granted B&D’s motion to dismiss and dismissed Norfolk Southern’s third-party complaint in its entirety.  The court interpreted the plain language of CERCLA’s definitions and found that CERCLA did not make the owner of railcar that was merely “damaged as a result of the derailment, rather than contributing to the derailment itself” liable. 

Law360 reported on the decision here.

Principals Casey Clausen (Seattle), Loren Dunn (Seattle), Marc Goldstein (Boston), and Dave Weber (Seattle) led the defense with assistance from Of Counsel Dylan Sanders (Boston), Associates Lia Crutchfield (Boston) and Lauren Karam (Boston), and Paralegals Jessica Durrant (Seattle) and Rebecca Illson (Seattle).

B&D’s more than 70 litigators represent clients in civil, criminal, and appellate court cases and in administrative, arbitration, and mediation proceedings. In 2023, U.S. News-Best Lawyers named B&D its “Law Firm of the Year” for Environmental Litigation, and we regularly receive recognition by AmLaw’s Litigation Daily as “Litigators of the Week.” Our Transportation industry group and Hazardous Materials and Dangerous Goods Transportation practice group provide strategic, business-focused advice to industry leaders.