West Virginia environmental regulators have issued two notices of violation to CSX Corp. in response to the railroad spilling diesel fuel into the New River after a derailment in Summers County last week.
The notices issued for violating state environmental legislative rules aren’t a mechanism to assess any penalty like a fine.
Violations listed in a notice of violation can be used to assess a penalty if enforcement actions escalate, Department of Environmental Protection spokesperson Terry Fletcher noted.
But Fletcher declined to say whether the agency intends to use the violations it listed in response to the March 8 derailment of the empty 109-car coal train that struck a rockslide in the New River Gorge below Sandstone Falls to assess a penalty. Fletcher said the DEP can’t discuss potential or pending enforcement actions related to active investigations.
“We demand CSX follow through on their duty to pay for and complete the clean-up of the New River,” Monroe County resident Maury Johnson and executive committee member of Protect Our Water, Heritage, Rights said in a statement Monday.
The DEP cited violations of rules requiring cleanup of any pollutant spilled into state waters and banning waste in state waters contributing to visible solids, scum, foam or oily slicks, odors in the vicinity of the waters, and materials in concentrations harmful to man, animal or aquatic life.
Fletcher said Wednesday the DEP wasn’t aware of any impacts to fish or wildlife stemming from the derailment, which resulted in non-life-threatening injuries to the train’s three crew members.
The DEP still didn’t know as of Tuesday how much diesel fuel was released into the New River, reporting an unspecified amount was consumed in a fire that emerged after the train left the track and overturned. Diesel fuel sprayed onto soil during the derailment, Fletcher said.
CSX spokesperson Cindy Schild said in a statement Tuesday it would use “clean material” to replace soil and rock contacted by diesel fuel that it has been excavating and removing.
“Exact quantities of recovered contaminated material have not yet been determined,” Schild said.
Schild said CSX would work cooperatively to ensure “an immediate and full response” to the violation notices received Monday.
Fletcher said the EPA is conducting water and air sampling in the area in addition to water sampling twice per day being conducted by CSX-provided environmental contractors. Schild said CSX-contracted sampling hadn’t yielded results exceeding safe thresholds.
“[T]he spill from this derailment has caused a visible diesel fuel sheen on the New River, which is a condition prohibited by legislative rule,” the DEP and the Department of Health and Human Resources said in a statement Tuesday.
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West Virginia American Water temporarily stopped drawing water from the New River in response, and reported no detection of contaminants in treated water.
CSX deployed a fleet of drones to survey areas that have similar topographical characteristics as the area where the boulder that caused the derailment was dislodged from a rock face in order to identify and mitigate the potential for rockslides.
State legislation that would have created a system of fines for the Public Service Commission, which has jurisdiction over railroads, to impose on railroad companies for safety and operational violations, failed in the legislative session that ended this past weekend.
House Bill 3059’s lead sponsor, Delegate Charlie Reynolds, R-Marshall, a railroad safety inspector, said the bill was a response to what he says has been CSX and Norfolk Southern staff shortages driving illegal crossing blockings and depriving the state of severance tax by failing to move coal.
Reynolds repeated a criticism that has reverberated since last month’s derailment of a Norfolk Southern train carrying hazardous chemicals in East Palestine, Ohio — that the industry needs more eyes on it because it has tried to get by with less manpower.
CSX, Norfolk Southern and five other major freight railroads slashed their overall staff by roughly 28% from 2011 through 2021 while reporting an increase in the length of trains in recent years, the United States Government Accountability Office noted in a December report. The report focused on a strategy the railroad companies have implemented called precision-scheduled railroading, a move linked to longer trains and staff and asset reductions.
But the PSC has been short-staffed in its oversight of the railroad industry.
The 922 inspections conducted by railroad safety inspectors in 2022 marked a 24% reduction from the 1,208 conducted the year before. There was an even greater decline — 71% — in railroad inspections conducted by the PSC’s hazardous materials inspection program, from 168 in 2021 to 48 in 2022.
PSC spokesperson Karen Hall attributed the inspection decreases to retirements and disabilities among railroad safety inspectors.
The PSC identified 1,435 defective rail cars out of 26,770 rail cars and locomotives inspected, and 684 defective track conditions across 1,917 miles of railroad track inspected in 2022.
The PSC’s inspection program for hazardous materials conducted 48 railroad inspections and cited 22 defective conditions and one violation in 2022.
Kathy Ferguson, interim executive director of Our Future West Virginia, an advocacy group, said in a statement the Summers County derailment highlights the importance of regulation as a “preventative tool.”
“If the New River had been further compromised, the effects would’ve been catastrophic — not only on the ecology, but the habitability of the area, to our tourism and certainly to many folks living downstream,” Ferguson said.
