A few hours after dinner time on Feb. 3, and approximately 20 miles following a dramatic slow-down from a speed of 50 miles per hour to about half that, a Norfolk Southern freight train consisting of 38 cars – 11 of which were carrying hazardous materials – derailed in East Palestine, Ohio.
Although the derailment released several types of chemicals, many of which can break down or react with elements in the environment, five of those 11 cars contained vinyl chloride, a highly flammable chemical also associated with cancer risks. Within 24 hours the U.S. Environmental Protection Agency was on site, monitoring the air for volatile organic compounds, including vinyl chloride, and directing the installation of booms and underflow dams to restrict the flow of contaminated water. Within 48 hours, Norfolk Southern also began monitoring the air and using aeration pumps to treat contamination by injecting oxygen into the water.
Although the air-monitoring readings did not detect dangerous levels of contaminants, authorities became concerned the increasing temperature inside at least one of the vinyl-chloride cars signaled a polymerization reaction that could result in an explosion, according to an initial report issued by the National Transportation Safety Board. After 72 hours, on Feb. 6, Norfolk Southern directed crews to release the vinyl chloride into a trench for a controlled burn, spewing opaque, black clouds into the town of just under 5,000 people. It was this action that resulted in the EPA, and a specialized unit of the Ohio National Guard activated by Gov. Mike DeWine, detecting contaminants in the air.
Almost immediately Americans saw, across social media and on their televisions, images and videos of a local river filled with dead fish that were among, according to the Ohio Department of Natural Resources (ODNR), the nearly 50,000 aquatic animals within five miles that perished because of the derailment and spill. Indeed, the conditions were such that the Ohio Environmental Protection Agency informed the ODNR that it was too dangerous to enter the water without specialized gear and equipment. In the weeks since then, however, the ODNR indicated that as a result of containing the chemical spill it has not seen any further signs of dead aquatic life and no signs of derailment-associated terrestrial animal deaths.
East Palestine residents also immediately reported various symptoms including headaches, burning eyes, dizziness, bloody noses, rashes, and vomiting. Ohio officials, however, have repeatedly insisted that air- and water-quality tests undertaken in East Palestine following the derailment and subsequent fire show no dangerous level of chemicals. DeWine, however, stated he did not want to minimize any potential resulting medical issues, and requested medical experts come examine residents and the conditions. So far, teams from the U.S. Centers for Disease Control and Prevention and the U.S. Department of Health & Human Services have been put together to assist, and the Ohio Department of Health said that the state opened a health assessment clinic consisting of nurses, toxicologists, and mental health professionals, all of whom can provide referrals to residents for further care.
East Palestine Mayor Trent Conaway, however, told reporters last week, “We’re getting everything we need, except answers. We need answers, as far as the health concerns.” Indeed, in the wake of the disaster, East Palestinians have expressed doubts about the current and future safety and habitability of their town.
Just five days after the derailment, the first lawsuit related to the disaster was filed by a local couple, suing Norfolk Southern on negligence grounds, claiming the rail company failed to exercise reasonable care for the town’s residents and adversely impacted local businesses through the derailment itself and resulting chemical spill. Although the exact cause of the derailment, and whether it would have been prevented by more stringent federal regulations, including Obama-era regulations rolled back by the subsequent administration, are still not conclusively known, and the long-term health effects of the town’s residents have yet to be seen, there are some things we do know at this juncture.
We know that the EPA is taking control of determining remediation efforts, as outlined in a lengthy order that took effect last week. The order invokes one of the agency’s strongest legal authorities under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), to place broad obligations upon Norfolk Southern, enabling the EPA to expedite cleanup-plan development and to seek cleanup compensation costs, with potential fines of up to $67,544 for each day Norfolk Southern willfully violates or refuses to comply with the cleanup, an amount that may increase in the future, if the EPA deems it necessary. Moreover, the order enables the EPA to seek punitive damages in amounts up to triple the costs if the EPA must undertake the cleanup itself.
We also know that, although Norfolk Southern failed to attend an East Palestine community meeting with residents following the derailment, the order states that the company must now attend and participate in subsequent public meetings and publicly disclose information when directed to by the EPA. On the flip side of Norfolk Southern’s obligations, we know that the EPA-directed order provides a benefit to the railway company by limiting the jurisdiction of other entities or governing bodies that normally possess environmental authority, such as the State of Ohio, who can no longer impose its own requirements on the company. Such actors, however, will still have input regarding the scope of the cleanup, and local cleanup standards will be applied by the EPA even though it remains the agency in charge of the overall remediation.
We know that the order may be considered if, in the future, East Palestine concludes it wants the contaminated site to be placed on the Superfund National Priorities List, to qualify for an expansive cleanup program and the restoration of natural resources, which would follow the cleanup efforts outlined in the order. And we also know that the order could serve to bolster future lawsuits claiming that Norfolk Southern is liable for any health issues resulting from the derailment, spill, and controlled burn. The order does not serve to prevent any future legal claims for damages relating to medical injuries and costs or property damages and reduction in property values.
Knowledge of the remediation and cleanup efforts that the EPA now has the power to enforce, however, has not alleviated the fears and anger felt by the residents of East Palestine. And we cannot know whether those feelings can ever be alleviated.