Close up view of railroad, transport background

Executive Order Aims to Increase Oversight of East Palestine, Ohio Train Derailment Response

Just before 9 p.m. ET on February 3, a 150-car, 9,000 foot long, Norfolk Southern freight train derailed in East Palestine, Ohio, a quarter mile west of the Ohio-Pennsylvania state line. Twenty of the affected cars contained hazardous materials, including vinyl chloride, ethylene glycol, ethylhexyl acrylate, butyl acrylate and isobutylene. Some cars caught fire, others spilled their loads into an adjacent ditch that feeds Sulphur Run, a stream that joins Leslie Run, which eventually empties into the Ohio River.

Since the derailment, the Federal government …

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Bona-Fide Improvement: Ohio Adds BFPP Defense to Hazardous Waste Liability

This summer, Ohio implemented a change in its hazardous waste law that will be welcomed news to purchasers of brownfields. The new law adds a bona-fide prospective purchaser (BFPP) affirmative defense that will make those who qualify for its protections “immune to liability” to the state under the state’s environmental laws. Additionally, the new defense applies retroactively to pending causes of action that started before the law’s effective date.

The concept of a BFPP defense is familiar to purchasers of commercial property, as a similar …

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PFAS Update: DuPont and Chemours Hit With Another Suit in Ohio

Last week, Ohio Attorney General Mike DeWine filed suit against E.I. du Pont de Nemours and Co. (DuPont) and its spinoff The Chemours Company (Chemours) for the release of Perfluorooctanoic Acid (PFOA), also known as C8, into the Ohio River.  The current suit alleges that between 1951 and 2013 DuPont released toxic chemicals from its Washington Works plant, a 1,200-acre facility along the Ohio River, which forms the border between Ohio and West Virginia.  The lawsuit alleges that DuPont’s internal research and medical staff concluded …

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Must Be Something in the Water: High Levels of PFOAs Found in Mid-Ohio River Valley Residents

A recent study by the University of Cincinnati found high levels of perfluorooctanoic acid (PFOAs) in residents from the Mid-Ohio River Valley over a 22-year period. The study’s findings are largely consistent with increased detection of PFOAs in water sources nationwide in recent years. Perfluorooctanoic acid (PFOA), also known as C8, persists indefinitely in the environment and is identified as a substance that is “possibly carcinogenic to humans.” Until recently, PFOAs were routinely used in making a number of consumer products like stain-resistant fabrics, food …

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CERCLA Update – Watch Out for Inadequacies in Allegations; Pleading Requirements to Satisfy a “Disposal”

Late last year, in our Law360 article “Definition Of ‘Disposal’ Limits CERCLA’s Applicability,” we analyzed an Ohio District Court’s pleading requirements to state a claim for liability under CERCLA. The plaintiffs’ initial complaint in that case had been dismissed because it failed to sufficiently allege “active human conduct” causing hazardous substances to be “discharged, deposited, injected, dumped, spilled, leaked or placed into or on any land or water at the Site so that it could enter the environment.” We left off with the …

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