Norfolk Southern To Conduct Additional Creek Investigation and Cleanup in East Palestine, Ohio

October 23, 2023
The U.S. Environmental Protection Agency (EPA) ordered Norfolk Southern to conduct additional cleanup and sheen investigations focused on oily sheens and sediments in Sulphur Run and Leslie Run creeks in East Palestine, Ohio, and surrounding areas. This order under EPA’s Clean Water Act authority will build on the assessment and cleanup work already conducted in the creeks over the last several months and represents a progression of response actions at the site based on data collected and analyzed. Work done under this order will determine if more cleanup is necessary to ensure any potential long-term impacts are addressed.
“Since the start of the cleanup, we’ve made tremendous progress, but we know there is more work to be done,” said EPA Regional Administrator Debra Shore. “As many folks have seen, the sediment in the creeks in some areas may generate a sheen when disturbed or agitated. In addition to the sampling and clean-up work over the last eight months, EPA will require that contamination from the derailment is identified along the impacted length of the creeks. Through this order, Norfolk Southern will take a thorough look at the waterways to ensure there are no lasting impacts from the derailment.” 
In February, EPA issued a Superfund unilateral administrative order requiring Norfolk Southern to remove spilled substances and impacted soils from the derailment site. This new order will require a similarly comprehensive investigation of oil-contaminated sediments in the creeks. The order was issued under authorities of the Clean Water Act, which EPA uses to conduct and enforce cleanups when oil is spilled into surface waters. 
Surface water data have been collected regularly since the derailment. While data indicate that surface water is no longer significantly impacted, disturbance of stream sediments can still result in the appearance of oily sheen at the water surface. Weekly surface water sampling and visual surface water inspections will continue. This order will lead to a better, more complete understanding of where sediments are contaminated and will assist in evaluating how to address any remaining contamination in the creeks. Drinking water is not covered by the order as there is no indication of risk to East Palestine public water customers or private wells. Treated drinking water shows no detection of contaminants associated with the derailment.
The sheen investigation will be conducted along a roughly 5-mile length extending along impacted areas of both creeks. The order requires using a sediment agitation technique every 25 feet down the creeks to map where sheening occurs. Documenting observed sheen and sediment sampling will also be required to understand what contamination remains in the creeks. 
In addition, the creek cleanup will be conducted in several culverts spanning approximately 1,200 feet to remove impacted sediment in Sulphur Run downstream of the derailment site.
This order builds on the assessment and cleanup work already conducted in the creeks. Over the last several months, work plans covering surface water bodies (Sulphur Run, Leslie Run and downstream creeks) were prepared and implemented by Norfolk Southern under EPA’s Superfund unilateral administrative order. Earlier in the response cleanup crews addressed contamination in Sulphur Run and Leslie Run. Work performed included: 
  • Surface water aeration to more rapidly reduce levels of volatile organic compounds in the creek and allow aquatic life to restore more quickly. 
  • Sediment washing to bring recoverable contamination to the surface for collection. 
  • Sewer flushing to remove contaminants and sediment buildup. 
  • Qualitive assessments where sediments were intentionally agitated to produce sheen.
  • Sheen and sediment sample collections for analysis of contaminants to better understand the contamination profile in the creeks. 
The latest order follows Administrator Regan’s fourth visit to East Palestine earlier this week to meet with local officials and to see cleanup progress first-hand. During his visit, Administrator Regan noted the significant amount of environmental cleanup that has been accomplished to date, with 98 percent of the derailment site excavation completed. EPA responders were on site within hours of the February 3 derailment, and on February 21 the agency issued a unilateral administrative order to hold Norfolk Southern accountable for cleaning up the mess it created. Since then, EPA has been directing and overseeing the extensive cleanup activities. 
Warren Battery Cell Manufacturing Plant Faces $270K in Penalties After 19 Safety Violations
U.S. Department of Labor investigators examining the cause of a March 2023 explosion and fire at a Warren auto battery manufacturing plant and investigating other safety complaints identified 19 safety and health violations after opening four separate inspections in less than a two-week period.
Inspections by the department's Occupational Safety and Health Administration at Ultium Cells LLC led the agency to cite the company for 17 serious and two other-than-serious safety and health violations. OSHA inspectors found the company exposed workers to machine and chemical hazards by failing to use and train workers on safety and emergency response procedures.
The agency also learned Ultium Cells did not comply with federally required safety standards for the use of personal protective equipment, including respirators. The inspections took place between April 24 and May 5, 2023, at the plant, a joint venture between General Motors and LG Energy Solution to mass produce battery cells to help expand production of electric vehicles in North America.
OSHA has proposed $270,091 in penalties and issued the company a hazard alert letter asking them to voluntarily reduce accumulations of metal dust and protect employees from unsafe metal dust exposure.
"Ultium Cells' technology and advanced manufacturing facilities are part of a new and emerging field but workplace safety standards — such as machine guarding, personal protective equipment and emergency response training — have been the law for decades," said OSHA Area Director Howard Eberts in Cleveland. "The company's focus on the future must include an emphasis on workplace safety to ensure the well-being of its employees."
Specifically, OSHA inspectors found the company failed to do the following:
  • Periodically test energy control procedures for various equipment.
  • Install required machine guarding.
  • Train workers in hazardous energy control procedures.
  • Provide safe access and egress for packing employees, who were exposed to trip and fall hazards.
  • Train workers in emergency response operations, including the release of hazardous N-Methylpyrrolidone.
  • Coordinate emergency responses with an incident response system.
  • Provide respiratory protection from exposure to hazardous chemicals that can cause numbness, dizziness and nausea.
  • Train workers on the physical and health risks of hazardous chemicals used in the workplace.
  • Provide safety data sheets for hazardous chemicals.
  • Store chemicals in labeled containers.
  • Select appropriate personal protective equipment and provide training on the use of PPE for potential exposure to chemical hazards, such as electrolyte and dried coating material.
  • Provide eye wash stations, emergency showers and hand protection.
  • Inform employees of their right to report workplace injuries and illnesses.
  • Allow an employee to freely report an injury.
Additionally, OSHA currently has one open inspection at the Warren facility following a June 27, 2023, fire and three inquiries, including a report that the company exposed workers to airborne chemicals in the cathode mixing area after a pressure gauge failed on Aug. 20, 2023, resulted in battery slurry leaking onto the plant floor.
Since the Warren facility began battery cell production in August 2022, OSHA has cited the plant 11 times. The company also has facilities under construction in Michigan and Tennessee.
Two Men Plead Guilty to Falsifying Documents Related to Testing of Equipment at Nuclear Plants
Two men pleaded guilty for their roles in creating false calibration certificates in a matter within the jurisdiction of the Nuclear Regulatory Commission (NRC).
According to court documents, Miguel Marcial Amaro, 56, of Newark, Delaware, and Martin Ramos, 52, of Levittown, Pennsylvania, worked for a company that provided acoustic emissions (AE) testing to nuclear power plants to detect structural defects in the plant’s equipment. Following the testing, Marcial and Ramos helped create and transmit final testing reports to the owners of the plants which, among other things, contained calibration certificates for the equipment used.
Between 2010 and 2021, Marcial was responsible for ensuring that the company’s AE testing equipment was calibrated annually; Ramos worked under Marcial as an engineer. The two men created numerous false calibration certificates for AE testing equipment, and 15 of these false certificates were sent a total of 29 times to nuclear plant owners as part of final testing reports required by the NRC. The falsified calibration certificates were discovered in 2021 during an external audit.
“Today, we hold defendants accountable for deliberately attempting to bypass testing protocols that are essential to keeping nuclear power plants safe,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division (ENRD). “We will continue to use all available enforcement authorities to support NRC’s efforts to ensure that nuclear energy is safely created.”
“Many thanks to the NRC and the ENRD for partnering in enforcement and ensuring the accuracy of inspection reports critical to the safe operation of nuclear power plants,” said U.S. Attorney Jacqueline C. Romero for the Eastern District of Pennsylvania. “My office takes safety matters such as these seriously, and these guilty pleas show that anyone seeking to evade nuclear testing protocols will be held accountable.”
“The NRC takes its mission of protecting public health and safety very seriously,” said Director Thomas G. Ashley Jr. of the NRC’s Office of Investigations. “It’s vital that employees at NRC-regulated entities act with integrity. Today’s announcement shows deliberate violations of NRC requirements will not be tolerated.”
Marcial and Ramos are scheduled to be sentenced on Jan. 25, 2024. Each faces a maximum penalty of five years in prison. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.
Kansas Ethanol Producer Agrees To Pay Penalty for Alleged Environmental Law Violations
The U.S. Environmental Protection Agency (EPA) will collect a $12,234 penalty from ethanol producer Pratt Energy LLC to resolve alleged violations of the federal Emergency Planning and Community Right-to-Know Act.
EPA says that the company failed to submit required annual reports listing releases of toxic chemicals at the company’s facility in Pratt, Kansas. As part of the settlement with EPA, the company also agreed to purchase emergency response equipment for local responders.
“Communities have a right to know about toxic chemicals in their area,” said David Cozad, director of EPA Region 7’s Enforcement and Compliance Assurance Division. “Failure to report such data also prevents governments and industry from using this important information for research and in the development of regulations, guidelines, and air quality standards.”
EPA’s review of Pratt Energy’s records showed that the company manufactured, processed, or otherwise used quantities of toxic chemicals above thresholds that require the company to submit annual reports to EPA. But the company failed to timely submit reports for the toxic chemicals acrolein, acetaldehyde, formaldehyde, hexane, and benzene for 2020. After EPA informed Pratt Energy of its failure to report, the company submitted the required forms.
Pratt Energy’s settlement with EPA includes the purchase of two utility terrain vehicles and a fire and rescue cot to be donated to Pratt County Emergency Management and Pratt County Emergency Medical Services.
The Emergency Planning and Community Right-to-Know Act requires facilities to report on the storage, use, and releases of hazardous substances. The information submitted is compiled in the Toxics Release Inventory, which supports informed decision-making by companies, government agencies, non-governmental organizations, and the public.
Wisconsin Jury Convicts Corn Milling Company Officials for Workplace Safety Violations
A federal jury in Madison, Wisconsin, convicted current and former Didion Milling Inc. officials of workplace safety, environmental, fraud and obstruction of justice charges following a deadly explosion in 2017 at a corn mill that Didion Milling operated in Cambria, Wisconsin. The explosion killed five workers and seriously injured others.
Didion Milling Vice President of Operations, Derrick Clark, was convicted of conspiring to falsify documents, making false Clean Air Act compliance certifications as Didion’s “responsible official” and obstructing the Occupational Safety and Health Administration’s (OSHA) investigation of the explosion at the corn mill by making false and misleading statements during a deposition.
Former Didion Milling Food Safety Superintendent, Shawn Mesner, was convicted of participating in a fraud conspiracy against Didion Milling’s customers and conspiring to obstruct and mislead OSHA for his role in falsifying sanitation records used at Didion to track the completion of cleanings designed to remove accumulations of corn dust at the mill.
“The trial and convictions in this case show that compliance matters, and attempting to hide non-compliance, is not just a ‘technical’ violation,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division (ENRD). “Managers and officers who enable corporate cultures that tolerate, encourage or cover up violations, and who participate in falsifying documents and obstructing agency investigations, will and must be held accountable in addition to the corporations.”
“The tragic loss of life in this case shows the terrible consequences that can result when companies fail to implement required health, safety and environmental measures,” said Assistant Administrator David M. Uhlmann of the Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance. “The convictions of Didion Milling senior managers sends a clear message that EPA and our law enforcement partners will investigate and prosecute companies that put profits above the health and safety of their workers.”
“Derrick Clark and Shawn Messner chose to intentionally mislead OSHA investigators and made false statements about their knowledge of working conditions at the plant to protect themselves and cover their mistakes,” said OSHA Regional Administrator Bill Donovan in Chicago. “Their blatant actions demonstrated a callous disregard for the loss of life, injuries and property damage that occurred under their leadership at the Didion Mill. Both Clark and Messner ignored their legal and moral obligation to protect workers before and after the explosion. OSHA is committed to taking all necessary action to hold employers responsible for protecting workers on the job.”
Grain dust can be explosive, and OSHA safety standards require grain milling facilities like the Didion Milling corn mill to develop and implement housekeeping programs, including regular cleanings, to reduce grain dust accumulation. Didion Milling maintained its master sanitation schedule to record the performance of required cleanings. Clark and Mesner were convicted of participating in a conspiracy to falsify that cleaning log, including directing others to backfill entries for uncompleted cleanings.
Federal law gives OSHA six months to gather facts and issue appropriate citations after a safety violation occurrence. In matters involving worker deaths, evidence that corporate managers knew about violations can result in issuance of a “willful” citation and a criminal referral.  OSHA subpoenaed Clark’s testimony in September 2017, during the corn mill explosion fatality investigation. Clark gave false and misleading testimony about his knowledge of problems with the dust collection system at Didion’s corn mill, his knowledge of explosion hazards and his knowledge of prior fires at the facility.
Additionally, a permit issued under the Clean Air Act required compliance by Didion Milling at its corn mill including the operation of baghouses equipment, which are designed to limit the release of particulate matter like corn dust into the environment. The permit also required a “responsible official,” a senior manager with authority, to periodically certify the mill’s compliance with air pollution control permit conditions and disclose known permit violations. Clark falsely certified Didion’s compliance without disclosing that baghouse logs – documentation on maintenance of baghouse equipment – had been systematically falsified to conceal permit violations.
Didion Milling sold its milled corn products to food and beverage manufacturers. Sanitation at food manufacturing facilities is necessary for food safety, and excessive accumulations of grain dust can cause food safety problems. Through deceptive means, including repeatedly presenting a falsified cleaning log to food safety auditors, Mesner conspired to deceive Didion’s customers about its sanitation practices. As food safety superintendent, Mesner directed operations personnel to falsify the log to make it appear as if the cleaning schedule was being followed.
The jury on Friday also acquitted former Didion Milling environmental manager James Lenz of charges relating to falsifying environmental records and conspiring to make false statements and obstruct agency proceedings.
Didion Milling previously pleaded guilty to falsifying the cleaning logs and baghouse logs at the mill and agreed to pay a criminal fine of $1 million and restitution of $10.25 million to the victims of the 2017 explosion. Didion Milling shift superintendents Nicholas Booker, Michael Bright and Joel Niemeyer previously pleaded guilty to false statement charges for participating in the falsification of the cleaning logs and baghouse logs. Didion Milling shift superintendent Anthony Hess pleaded guilty to obstructing OSHA by making false and misleading statements about the accuracy of the cleaning log during a sworn statement taken as part of OSHA’s investigation into the mill explosion. Former Didion Milling environmental manager Joseph Winch previously pleaded guilty to conspiracy to conceal environmental violations from regulators by falsifying compliance certifications and providing falsified logs to regulators.
Sentencing hearings for each of the defendants before U.S. District Court Judge James D. Peterson for the Western District of Wisconsin will be scheduled at a later date.
Federal Investigation Finds Tulsa Company Exposed Employees to Dozens of Safety Hazards
Three federal workplace safety and health investigations that followed the April 2023 death of a worker at a Tulsa manufacturing facility found the company exposed employees to struck-by hazards and identified 36 violations, including 25 serious safety violations of U.S. Department of Labor regulations.
Investigators with the department’s Occupational Safety and Health Administration opened the initial investigation in response to the fatality at Accurate Manufacturing Inc. The agency then opened comprehensive safety and health investigations under an existing Regional Emphasis Program focused on safety and health hazards commonly faced by workers in the fabricated metal products industry.
In its initial inspection, OSHA found an employee suffered fatal injuries during pressure testing of a heat exchanger. With pressure at 2,600 psi, one of the exchangers’ plugs blew off and struck the employee. OSHA determined the company violated the general duty clause for not keeping its employees safe. Further inspections at the facility identified 25 serious safety violations related to the following hazards:
  • Failing to keep exit routes free from obstruction.
  • Allowing a barrel of flammable chemical to not be grounded and bonded.
  • Failing to have an energy-control program or provide related training.
  • Allowing the use of powered industrial trucks, slings and lifting devices that were not in safe operating condition.
  • Failing to install required machine guards.
  • Not ensuring electrical equipment was maintained properly and in safe operating condition.
  • Failing to provide flame-proof shields or screens and protective eye wear to welders and their assistants.
In addition, OSHA’s health investigation at Accurate Manufacturing Inc. found 10 violations. The agency cited the company for its failures to do the following:
  • Employ a continuing and effective hearing conservation program and maintain accurate records of employees’ exposure measurements.
  • Establish and maintain an audiometric testing program and valid baseline audiogram.
  • Make sure the facility’s paint spray booth met all OSHA requirements.
  • Keep the space around the spray booth clear and install sprinklers.
  • Provide comprehensive respiratory protection and written hazard communication programs.
The agency has proposed a combined total of $275,890 in penalties for the three inspections.
“Our investigations identified three dozen violations, most of them serious, and found hazardous conditions affecting nearly every aspect of Accurate Manufacturing’s operations,” explained OSHA Area Director Steven Kirby in Oklahoma City. “We have major concerns about the company’s lack of commitment to protecting its employees and a disregard of hazards that has contributed to an employee losing their life.”
Founded in 2000, Tulsa-based Accurate Manufacturing Inc. and its sister company Professional Fabricators Inc., established in 1997, manufacture and build steel products for various industries, including oil and gas. The companies employ about 40 workers who specialize in steel fabrication and manufacturing.
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