Emergency Responders Sue Over Chemical Exposures From Toxic Train Crash

Police Officers Claim Public Was Misled by “False and Misleading” Information

Government Allowed Railoroad and Private Consultant To Downplay Risks

Police and emergency responders exposed to unknown but potentially unsafe levels of  vinyl chloride from the Toxic Train crash in Paulsboro filed a lawsuit against the railroad.

The lawsuit provides an inside look at key aspects of the disaster, echoes several of the issues we have raised here, and breaks new legal ground.

(read the lawsuit and the full story:  First Responders in Paulsboro Chemical Spill Sue for Injuries

“The truth has not yet come out about what happened and why it happened,” said Mark Cuker, an attorney who filed the brief on behalf of 24 people, including 11 family members of the emergency personnel on the scene.

The emergency responders join several other lawsuits filed recently on behalf of hundreds of exposed people (see this and this), including one that claimed that the chemical spill caused the death of an exposed elderly woman (see: First wrongful-death lawsuit filed in Paulsboro train wreck).

All the lawsuits include withering attacks on the reckless, wanton and gross negligence and outrageous conduct of the railroad with respect to allowing hazardous cargo to be shipped through a residential community across a long known defective bridge.

Defendants’ acts and omissions are made even more horrific upon the information that defendants put safety aside for the sake of profit and maintaining a good relationship with the industrial end users of the hazardous substances aboard their train, which were released into the environment, causing harm to plaintiffs.

(here’s an example of the “good relationship” tactics employed by chemical industry and railroad officials)

All the lawsuits allege total failures in chemical emergency planning, prevention and response.

One particularly criticizes the decision not to evacuate, and instead “shelter in place” (watch NJTV coverage of that).

And all the lawsuits seek damages for adverse health effects resulting from exposure to toxic vinyl chloride gas, a known human carcinogen (and nuisance, trespass, and even assault & battery for unwanted and uninvited “touching”).

But the most recent suit by the emergency responders themselves breaks new ground in important areas, some that I’ve written about and want to mention briefly here today.

• False and Misleading information to downplay risks

As reported by the Courier-Post:

The suit also claims the companies and their workers “misled the public about the extent of the exposure.” Mongeluzzi said Conrail “significantly downplayed” the severity of the threat while first responders were exposed to a dangerous carcinogen.

From the outset of the accident, we repeatedly wrote that there were serious breakdowns in regulatory oversight and that the Unified Command failed to disclose that vinyl chloride was a known human carcinogen; failed to disclose that this chemical was one of few chemicals with known adverse development impacts on children; failed to disclose EPA’s “acute exposure guidelines”; and applied inappropriate health screening levels upon which key decisions were based, including public information fact sheets and decisions about where and whether to evacuate or “shelter in place.

The lawsuit goes even further by alleging that monitoring data on chemical levels was withheld from the public as well as emergency responders.

• Lack of Emergency Planning, Response and Chemical Safety Risk Management Plans

From the outset, we wrote about gaps, loopholes, and lax enforcement of federal and state chemical safety and emergency planning regulatory requirements.

The lawsuit claims:

As transporters of chemicals through populated areas, the defendants had a duty of care to have in place an emergency response plan that could protect the safety of nearby residents in the event of a derailment or other chemical spill. Part of the emergency response plan is a predictive dispersion model which can forecast the plume of contamination so as to enable an informed decision about the evacuation area. (emphasis mine)

We go beyond this and argue that the generators of those chemicals and the facilities they were destined to be delivered to have more than a mere “duty of care” – we believe that such plans are required by federal and state chemical safety laws, including local emergency management plan requirements.

We also argue that, in addition to civl duties, railroad chemical safety laws and regulations must be strengthen and enforced.

We immediately warned the public about the track record and conflicts of interests of the private consulting firm that the Unified Command was reliant upon for scientific, toxicological and public health expertise. (see: Consultant with a Horrible Record Put in Charge of Toxic Communication at Paulsboro Train Wreck

That firm, CTEH, was hired by the railroads and should not have supplanted government experts at EPA and NJ DEP.

The lawsuit correctly targets the source of the “false and misleading” information as the private consulting firm know as “CTEH”.

At all times, Defendants, their representatives and contractors,including Center for Toxicology and Environmental Health (“CTEH”) downplayed the significant of the amount and toxicity of vinyl chloride released.

[….]

Defendants and their contractors mislead the public about the extent of the exposure. Initial reports stated that by 10:30 am on November 30 the vinyl chloride had “dissipated”. On the contrary, early on the morning of December 1, firefighters responded to Officer Gentile that they had to spray water on the breached car in order to keep vinyl chloride from rising into the air, and that pockets were found in which vinyl chloride measured as high as 350 ppm.

The public statement of Dr. John Kind, Director of toxicology for CTEH released to the press that “the highest levels of vinyl chloride we have detected in the community are hundreds of times lower than the concentrations that would produce symptoms” was false and misleading.  THe statements on Defendants’ website that “concentrations of vinyl chloride within the evacuated community were not of  immediately health concern, as they are below the short term emergency response guidelines developed” by the EPA was also false and misleading.

The public deserves the full truth and answers to these questions – that’s why we called for a Coast Guard and EPA Inspector General Investigations, see:

JERSEY TOXIC SPILL FIASCO DEMANDS SECOND LOOK – Review of Evacuation and Health Warnings Confusion, Role of Corporate Consultant

EPA has declined our request, but we’ve yet to hear from the Coast Guard.

Important investigations and public policy reforms should not have to rely on private lawsuits or the courts.

[Update: 5/29/13 – Inquirer writes about railroad response and strict liability standard:  Conrail challenges claim in Paulsboro lawsuit.

If a loophole in strict liability exists for the railroad as a common carrier, that only makes the case for stricter regulation even stronger.

Regardless, even if they get off the hook from strict liability, no way they dodge gross negligence – the bridge was known to not be functioning and obviously Conrail knew they were carrying hairdos cargo. – end update