DA may file charges over June fish kill

Weighing negligence by railroad in McKean County derailment

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The McKean County district attorney is considering filing criminal negligence charges in the June 30 Norfolk Southern Railroad train derailment that polluted more than 30 miles of the state's best trout streams and killed thousands of fish.

The southbound freight was traveling more than 50 miles over the speed limit on its way down one of the state's steepest stretches of track when 31 cars of the 44-car train derailed along Sinnemahoning-Portage Creek, near the town of Gardeau.

District Attorney John Pavlock this week should receive the Pennsylvania Fish and Boat Commission's long-awaited technical report, containing potentially key evidence in the seven-month investigation.

Mr. Pavlock, who declined to discuss details of the ongoing train wreck probe, said he will treat the commission's technical assessment like a police report and will not make its contents public.

"We will review all information and determine what, if any, criminal charges should be brought," said Mr. Pavlock, who has been involved in the investigation since shortly after the derailment. "We want to do a thorough job. I won't rush things. I'll take the time that's necessary."

The Fish and Boat Commission report contains detailed information and data about the loss of aquatic life, including the kinds and number of fish killed, the extent of damage to aquatic invertebrates and a calculation of the loss of recreational value.

During the derailment, three tank cars ruptured, spilling 42,000 gallons of sodium hydroxide, or lye. The chemical contamination killed all fish and aquatic life in Big Fill Run, a small tributary where the accident occurred, and down through 7.5 miles of Sinnemahoning-Portage Creek, a state-designated exceptional-value wild trout stream. The spill also killed many fish in more than 25 miles of the Driftwood Branch of Sinnemahoning Creek, Sinnemahoning Creek and adjacent wetlands.

"We're treating it as a criminal case," said Dan Tredinnick, commission spokesman, who noted that the commission has already turned over physical evidence it gathered following the derailment, including stream water samples, photographs, videotape and other evidence it collected at the scene.

No matter what the district attorney decides to do, Mr. Tredinnick said the commission can bring its own civil action to collect penalties for damage caused to the fisheries involved.

In August, the state Department of Environmental Protection issued a violation notice to Norfolk Southern, charging it with violating numerous environmental regulations, and followed that up in October by announcing it would seek civil penalties from the railroad totaling $8.89 million, plus daily penalties of $46,420 for ongoing discharges.

Norfolk Southern has appealed the penalty assessment to the state Environmental Hearing Board. No hearing date has been set.

Rudy Husband, a Norfolk Southern spokesman, said the company's policy is to not comment on ongoing legal matters.

The company has also appealed the DEP cleanup order, but is continuing to do work on soil removal and remediation at the derailment site, where low levels of lye continue to leach into Big Fill Hollow. The company has completed excavation and remediation of approximately one acre of land containing Big Fill Run and wetlands on the east side of the tracks, plus an additional two acres that were disturbed during the derailment cleanup.

More than 150 truckloads of contaminated soil weighing at least 3,000 tons have been removed from the derailment site and deposited in a permitted landfill.

Norfolk Southern last week received a 60-day extension until March 19 of its cleanup permit to allow it to complete work on another acre of contaminated soil on the west side of the tracks.

While the pH levels -- measuring acid or alkalinity -- have returned to near normal in Sinnemahoning-Portage Creek, Freda Tarbell, a DEP spokeswoman, said the chemical reaction caused by the lye continues to leach sodium and some metals out of the soil and into the stream.

The Fish and Boat Commission has decided that it will restock trout in sections of the Sinnemahoning-Driftwood Branch and Sinnemahoning Creek that were stocked prior to the derailment. But it has not decided if it will conduct "seed stockings" in the Sinnemahoning-Portage Creek that was a wild, naturally reproducing trout fishery.

Don Hopey can be reached at dhopey@post-gazette.com or 412-263-1983.


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