Environmental Damage that Keeps on Giving
or, how NSR took a big environmental disaster and made it an epically gigantic one
The federal statutes that were intended to stop hazardous chemical dumping and to make polluters pay for their environmental contamination were passed in the 1980s-90s. They were, in part, inspired by the dramatic Cayuga River in Ohio, bursting into flames for decades from the froth of chemicals dumped into the river by countless chemical companies or transporters beginning as early as the Industrial Revolution.1 The washing ashore of hundreds of drums of disposed hazardous chemicals on Times Beach, Missouri can take credit for inspiring the passage of the massive chemical management statute, RCRA.2 New Jersey is another state known for its chemical disasters. New York is best known for Love Canal,3 the environmental disaster that triggered the support for passage of the strict liability statute, Superfund.
So when a massive vinyl chloride spill from a derailed train of 150 cars occurred in East Palestine, Ohio (about 75 miles from the Cayuga River) on February 3, 2023, it was fully expected that Norfolk Southern Railway, a $50 billion company,4 would know how to immediately mitigate the damage. Report the disaster and respond to minimize the environmental damage in accordance with well known and established statutes and reguations. This was a wrong assumption. Very wrong.
Using the authority of Superfund/CERCLA, the Regional Office of EPA in Chicago wrote a potentially responsible party (PRP) letter to Norfolk Southern Railway (NSR).5 The letter set out the facts of the chemical disaster, and noted that NSR “may be liable” for the damages. This kind of letter is fairly standard and will trigger a number of actions to follow including an assessment of the damage; a remediation study of the environmental damage; public hearings to discuss remedial actions and cleanup options; a record of decision as to which clean up option has been selected. Eventually, contractors will be hired to perform the work. The work can take years and can have ongoing components like blood testing of the exposed residents for decades.
In the meantime, NSR should be bringing in trucks of bottled water and distributing them to every neighborhood in this small, 5,000 population city. They should be designing plans to carry water into the city by pipeline as soon as possible, knowing the obvious long term damage to the water supply. They should be going door to door interviewing families to make sure they are not suffering the effects of the now pollluted air. Epidemiologists should be on the ground interviewing families to assess the damage.
It appears that NSR is doing none of this. Instead, they have offered to pay each family a $1,000 inconvenience fee, according to local news media.6
Making a Bad Situation Worse
But what is telling about this two part disaster is that the letter notes the intentional release of vinyl chloride into a ditch and subsequent burning of the chemical. The integrity of five tankers were breached to allow this dumping. In news reports, the company appears to have argued that action was required to prevent an explosion. However, there is no evidence that they considered transferring the contents to five or more trucks with tankers and driven the spilled material away to be safely disposed. Instead, they dumped vinyl chloride in ditches, allowed it to run into the environment, and then burned it ensuring it would contaminate the air. There are no plume studies of the movement of the chemical as it contaminated the air, which is Disaster Response 101. They should be estimating the plume movement of the chemical contamination in the underground water supply, but I am not optimistic. Let’s hope they are working on all of this right now, to start repairing the damage — but I am not optimistic.
In transport, U.S. DOT has specific plaquards on the tanker for carrying hazardous waste and RCRA requires a Material Data Safety Sheet (MSDS) to travel with the hazardous material (paper gave way to electronic copies)7, so everyone will know exactly what to do in the event of a spill or emergency. If you had no training at all, and looked at this MSDS, you would think twice about dumping into into drainage ditches to flow into surface and ground water.
Now Norfolk Southern will have air, soil and water cleanup, and certain health effects on the surrounding neighborhoods. Mitigation, restitution and compensation will take decades.
The intentional release of hazardous substances, such as vinyl chloride, is a second act after the consequences of the spill, and is an unpermitted release under RCRA an CERCLA. The fact that the release of vinyl chloride was intentionally done by breaching the integrity of the tankers and subsequently burning the chemical made a one part disaster a two part disaster. Instead of an environmental spill action and mitigation, you have an intentional unpermitted release into the environment of an extremely hazardous material.
Section 109 of CERCLA, also known as the "endangerment provision." establishes criminal penalties for "knowing endangerment" in connection with hazardous substance releases. This provision applies to situations where a person knowingly, and with reckless disregard for human health or the environment, introduces a hazardous substance into the environment, or causes a release of a hazardous substance that may present an imminent and substantial endangerment to human health or the environment. The specific language of the provision is as follows:
"Any person who knowingly violates section 103(a), (c), or (d) of this Act, or any requirement imposed under section 106 of this Act, and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be fined not more than $250,000 or imprisoned not more than 15 years, or both."
It's worth noting that the EPA and other regulatory agencies interpret "knowing endangerment" broadly, and it can apply not only to intentional actions but also to reckless conduct or gross negligence that results in the release of hazardous substances.
As a result, the cleanup efforts that will follow will be extensive and could take decades to complete. The EPA and other regulatory agencies will need to assess the extent of the damage caused by the release of vinyl chloride and develop a remediation plan that addresses the contamination of the air, soil, and water in the affected area. The remediation efforts will also need to include ongoing monitoring and testing to ensure that the area is restored to a safe and healthy environment for the surrounding community.
Even with an unintentional release, the Railroad Company was required to notify the National Response Center upon learning of the release,8 and this would at least show good faith on the part of NSR.
CERCLA provides the EPA with broad authority to enforce environmental regulations and hold responsible parties accountable for hazardous substance releases. In cases where a potentially responsible party (PRP) letter is issued, the EPA can require the PRP to conduct a remedial investigation and feasibility study to determine the extent of the contamination and evaluate cleanup options.
If the PRP fails to comply with the EPA's requests, the EPA can issue a unilateral administrative order or file a lawsuit to compel the PRP to take action. The EPA may also seek to recover costs associated with the cleanup effort.
In addition to holding responsible parties accountable for cleanup efforts and costs, the EPA's enforcement efforts under CERCLA aim to protect public health and the environment by ensuring that hazardous substance releases are properly addressed and prevented in the future.
CERCLA is a strict liability statute, meaning there is no need to prove the company was negligent, it is enough that they are the responsible party.
There are also civil remedies for individuals or a class of individuals who were harmed by the actions of NSR. Even though federal statutes have preempted state law in this field, there are still state laws that protect property owners who can still recover for damages to their specific property due to the same environmental disaster event.
The criminal penalties for these offenses can include fines and imprisonment. For individuals, fines can be up to $250,000 per violation, and imprisonment can be up to 15 years. For organizations, fines can be up to $1 million per violation. Criminal penalties require much more in terms of intent or gross negligence than the civil penalties of the strict liability statutes.
It is important to note that the EPA works closely with other law enforcement agencies, including the U.S. Department of Justice, to investigate and prosecute criminal violations of environmental laws and regulations. The goal of these efforts is to hold responsible parties accountable for their actions and to deter future intentional releases of hazardous substances.
Final word
I should probably mention that I have had a long interest in saving the earth. This environmental disaster should not have happened. My PhD is in Environmental Sciences and my dissertation is in part on the Emergency Planning and Community Right to Know Act of 1990. I went on to serve as the Director of Emergency Preparedness (and Public Information Officer) in Chesapeake, VA for a stint. Before I became a law professor, I worked at a law firm that specialized in Superfund cases, and from there I worked for the U.S. EPA Headquarters in Washington, D.C. and wrote speeches for my Associate Director and contributed to the speeches of the Administrator of EPA. I am a Board Certified environmental scientist by the American Academy of Environmental Engineers and Scientists.
All that said, this article should not be construed as legal advice, but it should be considered an open condemnation of the actions of the NSR in making a bad situation worse, even if it did produce unintended consequences. I am open to changing my opinion if they come forward with a real analysis that an explorsion was imminent and life threatening and could only be stopped by draining vinyl chloride into the surround earth and starting a chemical fire that would contaminate the city for decades to come. You might want to hold your breath while in East Palestine, but don’t hold your breath waiting on this real analysis.
https://www.smithsonianmag.com/history/cuyahoga-river-caught-fire-least-dozen-times-no-one-cared-until-1969-180972444/.
https://www.epa.gov/mo/town-flood-and-superfund-looking-back-times-beach-disaster-nearly-40-years-later .
https://en.wikipedia.org/wiki/Love_Canal .
https://en.wikipedia.org/wiki/Norfolk_Southern_Railway .
https://www.cleveland19.com/2023/02/13/attorney-warning-east-palestine-residents-about-1000-norfolk-southern-payments/ Despite assurances from NSR that accepting the $1,000 inconvenience fee would not preclude them from receiving further settlement funds, the company’s refusal to agreed to that in writing has cast serious doubt over the veracity of their statement. These are individual statements reported by the news media, and not sworn statements.
June 30, 2021 at https://www.epa.gov/e-manifest/frequent-questions-about-e-manifest.
Thank you for your legal analysis of this horrible, horrible disaster. It just baffles me to think that a company would not step up and assist with the clean-up of this environmental disaster and help the affected citizens. We need to start jailing company officials for their blatant disregard of the law.