CHATTANOOGA, TN (December 6, 2002) — On Tuesday, December 3, a Chattanooga jury found Norfolk Southern Railway Corporation responsible for 70 percent of the costs of cleaning up an arsenic acid spill at its DeButts rail yard in Chattanooga in June 1994. In the case, Norfolk Southern named Hickson Corp., lessee of the tanker holding the chemicals that spilled, as the only liable party. The resulting jury decision left Norfolk Southern responsible for over $7 million of the $10.725 million it sought from Hickson Corp.

The trial, which had been ongoing since April of this year, was the second attempt to resolve the liability of the spill. Stephen O’Day, partner in charge of the environmental law practice group of Atlanta-based law firm Smith, Gambrell & Russell, and representative for Hickson Corp. said, “The jury’s decision supported Hickson’s stance regarding its liability in the case. By deciding Hickson was responsible for only 25 percent of a $10.7 million clean-up effort surrounding the spill, the jury placed the majority of liability on Norfolk Southern, which had more than 60 spills at its DeButts rail yard during the twenty-five years preceding this spill. That alone shows a necessity for Norfolk Southern to be prepared for spills such as that involving the Hickson tanker — and they were not adequately prepared prior to this or any of the spills.”

Add One/Norfolk Southern Found Partially at Fault

The 1994 spill was initially a result of corrosion in the tank car leased by Hickson; however, the spill reached a volume of almost 3,100 gallons at the rail yard due to insufficient training, planning, facilities and materials on the part of Norfolk Southern. Once a conductor located the spill, the car was moved by Norfolk Southern to an area near an open storm drain, where the acid was allowed to contaminate a nearby water source. According to O’Day, “In typical leak or spill situations, rail yards are equipped with a containment facility to ensure contaminants are not released into the soil or water supplies. The DeButts yard did not have a containment facility until it was state-ordered after this spill, even though it was undisputed that one was feasible.” As a result, the clean up was far more costly than it should have been. “If Norfolk Southern had acted appropriately, we estimate it would have cost only $230,000 to clean up after the leak, as it would have been contained to one area,” added O’Day.

O’Day has handled hundreds of cases involving environmental issues. A graduate of Furman University and Harvard Law School, Mr. O’Day has focused his practice on environmental litigation, consultation and negotiations during his 23 plus years. He has advised clients in connection with the full range of environmental legislation and common law issues, including issues related to hazardous materials and water quality. In 1986, he was a founding board member of the Southern Environmental Law Center, the only regional non-profit organization devoted to protecting and restoring the South’s natural resources.