The Environmental Protection Agency held the railroad company accountable, promptly disclosed information and directed the clean-up operation.
On the evening of 3 February 2023, a train derailed in East Palestine, Ohio. At first, the town’s nearly 5,000 residents may not have been greatly concerned, given the frequency of such incidents on the ageing rail system.
Three days later the railroad firm responsible, Norfolk Southern, decided to drain vinyl chloride from five of the derailed cars onto an unused lot and burn it off. They did this in order to prevent leakage and possible explosion of hazardous chemicals from damaged tankers. Residents in the surrounding area were panicked by the huge column of flames and black smoke. Fortunately, no one was injured, but the incident quickly attracted international attention.
In China, a large number of political news outlets and scientific media reported on the incident, triggering extensive public discussion. The prevailing view is that the incident was so severe and damaging as to be the “American Chernobyl”. Most public opinion is concerned about the pollution that may be caused by the burning of hazardous chemicals like vinyl chloride, especially phosgene in the short term and possibly dioxins in the long term. What has been less talked about on Chinese media is the government response.
The US launched a national-level environmental emergency response. From day one after the derailment to the time of writing this article, the emergency department has released information at least weekly. As of 1 April, environmental monitoring continues. Environmental engineers have cleaned up 12,904 tons of contaminated soil, 9.4 million tons of sewage (including newly accumulated rainwater at the accident site).
They have also tested the air quality of 646 households and are expanding the scope to sample and test soils on some homes and farms in Ohio and Pennsylvania that may be affected by fallout pollutants. So far, none has found concentrations of pollutants such as dioxins to be higher than the environmental background value.
The US Environmental Protection Agency (EPA) only initiates a national-level response in cases involving spillages of oil, biochemicals and radioactive materials, large-scale national security emergencies, or when an incident is beyond the capacity of local government to handle.
China also operates a tiered system for emergency response to environmental incidents, with four levels: extremely serious, serious, relatively serious and general. Two of these, extremely serious and serious, require a national-level response directed by the Ministry of Ecology and Environment (MEE).
However, China’s criteria for classifying such incidents are linked to overall social and economic damage rather than depending on the types and levels of pollution, which is the approach of the EPA. Aside from making an early determination, based on casualty numbers, as to whether an incident in China is at the “serious” or “extremely serious”, there are other indicators to consider which cannot be confirmed at the time of the event. These include, for example, whether the incident will cause species extinctions, direct financial losses of more than 100 million yuan (US$14 million), or necessitate the cutting off of water sources.
This creates a paradox, in that it may be necessary to undergo or even complete the emergency response process in order to know if the incident is at the “serious” or “extremely serious” level.
Had the Ohio incident occurred in China, and assuming no casualties, acute poisoning or mass evacuation, it is highly unlikely that MEE teams would have been on the scene within five hours as an EPA team was.
The aftermath of the derailment has highlighted many of the differences between environmental emergency response in China and the US, which extend not just from initial reactions but to later monitoring, compensation and information disclosure. The effective measures taken in Ohio could offer valuable examples for China that could enhance its own future responses. It should be pointed out that the focus of this article is limited to the emergency response mechanism within the environmental regulatory system. The deeper issues touched by the Ohio incident, such as ageing domestic infrastructure, bipartisan disputes, and governance failures, are outside its scope.
Emergency response: life over environment
The EPA arrived at the accident site in the early hours of 4 February. With a manifest from the railway authorities, the agency promptly established the types and quantities of hazardous chemicals on the derailed train, and began monitoring characteristic air pollutants and the leakage of hazardous substances.
On 6 February, furious controversy erupted following the deliberate combustion of large amounts of vinyl chloride at the accident site, a decision authorised by the EPA.
Residents, the media and experts had competing views on this disposal by “controlled burning”. Some argued that alternative methods could have had less environmental impact and carried less secondary risk.
Vinyl chloride, a highly flammable and explosive compound, can easily cause injury or death. For example, in the November 2018 blast at a plant owned by Shenghua Chemical Ltd in Zhangjiakou, Hebei province, a leak of the compound directly onto a public highway resulted in a fire in which 24 people died and 21 others were injured.
When the EPA responds to an emergency, even plans that are capable of significantly reducing pollution make way, unconditionally, to prioritise protection of the lives of the public and emergency responders.
In a letter to reporters, the EPA stressed: “Our top priority in emergency response is the protection of health and safety.”
This principle was also embodied in the agency’s monitoring after the incident. They did not answer questions about whether ambient air quality standards were exceeded, or give information about the extent of pollution dispersion or concentration levels. Their monitoring was limited to checking on conditions in the environs and observing if concentrations of characteristic pollutants rose to the point of posing a threat to the health of people living nearby. Where concentrations warranted “concern”, people were instructed to move as far from the site as they could, and evacuees were told not to return for the time being. Where indicators within a given range of the site showed it to be safe, no particular response was needed.
After similar incidents in China, environmental authorities have issued notices declaring that “air quality meets the standard”. For example, just one day after the Shenghua Chemical blast in Zhangjiakou, local environmental authorities announced “excellent air quality” at the site, to ease public concern.
China’s air quality standards do not contain indicators for vinyl chloride, hydrogen chloride, phosgene and other related chemicals, so the air quality standards cannot provide a reference for monitoring after accidents. What’s more, environmental emergency monitoring in China is more like performing an environmental impact assessment (EIA) than emergency monitoring.
According to the “Specifications for air emergency response monitoring work for serious and extremely serious unexpected environmental incidents”, issued by the MEE in June 2022, when choosing the location of monitoring sites, the major purpose is to “establish how pollutants are affecting ambient air quality and what their dispersal tendency is”. In the evaluation of monitoring results, prioritisation of locations with potential risks is based on local environmental quality standards or the limit values in EIA technical guidelines. In the absence of relevant standards or limit values, reference can be made to “Maximum permissible concentration of harmful substances in the atmosphere of residential areas” from the former Soviet Union.
Assessment studies of this kind can be a drain on time and energy. The EPA holds that air pollution from environmental incidents is generally a short-term phenomenon, and the main danger is acute injury resulting from spikes in concentration. It is therefore not considered necessary to incorporate the exceedance of ambient air quality standards into the examination and assessment.
Who pollutes, pays: the state will not stump up
On 8 February, after ruling out the risk of acute injuries, the Ohio state government notified the townspeople that it was safe for them to return home.
However, the emergency response did not end there. The EPA assisted hundreds of local households with testing for related pollutants in their indoor environments, in addition to responding to people’s concerns about odd smells, contamination of wells and strange behaviour of pets. Testing can help provide reassurance if residents feel something is not right. The US Department of Health and Human Services also sent a team of experts to survey the site, offering medical consultation and assessing residents’ health.
Such tests and health checks do not come cheap, but it will in any case be the party responsible that carries the cost for them and for any damage resulting from the incident and associated pollution. Neither victims nor taxpayers nor the government need fret about saving money for the party responsible. Within a fortnight of the incident, the railroad company had paid more than $6 million to East Palestine, including $3.8 million in direct financial compensation to more than 2,400 families.
In its invoice to the railroad, the EPA cited the “Superfund” law under which polluters and stakeholders may face unlimited liability – meaning the railroad not only picks up the entire bill for the emergency response phase, but also for subsequent long-term remediation of the area. The railroad will have to bear those costs unconditionally. Even if it declares bankruptcy as a limited liability entity, the relevant stakeholders will be held accountable until the last penny is paid.
If there is yet more pollution damage due to tardy clean-up work, the railroad may face additional penalties of $70,000 daily, in addition to compensation payments.
There is no generous underwriting of costs by the US government. Nor will the costs be paid up front from public funds and then more or less recouped later from the business through fines and public interest litigation.
China’s Environmental Protection Law applies the “polluter pays” principle. The State Council’s Circular [2014] No. 119 stipulates that “funds required for emergency response to unexpected environmental incidents shall first be borne by the unit responsible for the incident.” However, the circular does not set out precisely which funds have to be paid for by the responsible unit, and at the same time it makes provision for government to “underwrite” the cost. This means local governments at county level and above financially guarantee the emergency response work for such incidents.
In practice, annual emergency response costs for environmental protection departments at all levels are folded into fiscal budgets and final accounts, and in the first instance response costs are paid from existing funds. The party responsible for the pollution does not pay directly, except in certain circumstances where it is directly involved in the emergency response, such as through clean-up operations. Instead, accountability is determined on the basis of post-incident “loss verification”.
In June 2020, while presenting to the media the newly introduced “Regulations on work procedures for assessing direct financial losses in the emergency response phase of unexpected environmental incidents”, a MEE official admitted that liability was not being satisfactorily ascertained in the course of assessing environmental damage, and that there were “serious shortcomings” in respect of information disclosure.
Also, even if the new Regulations were to remedy some of these problems, it wouldn’t change the current situation under which the polluter is “indirectly billed” or even “fined in lieu of costs”. According to those Regulations, once the direct financial losses resulting from an unexpected environmental incident are determined, they “can serve for classifying the incident and applying penalties, and also provide a basis for public interest litigation and payment of damages”, but they cannot be directly converted into an itemised bill for the polluter.
The problem that arises is that a “total bill” of this kind is likely to be hard to calculate. How much should polluters really pay? What share should go to the government departments that paid upfront for the emergency response? How much goes to contractors involved in the emergency response operation? How much should be used to compensate the public and how much to rectify environmental damage? Each of these needs to be set out clearly, and separately.
After several years of administrative and public interest litigation, some enterprises may have transferred their assets and closed down, or have reinvented themselves. And while “astronomical fines” may appear to be a heavy blow to a company, they tend to be much reduced when actually implemented.
Information disclosure: keeping the public involved
Since the derailment in Ohio, local people have raised all manner of pollution-related personal concerns – feeling unwell, pets acting out of sorts, and more. Some, though not all, of these concerns are connected with the accident but all merit attention and answers. In addition to opening a local office where people can drop in to have their concerns addressed, the EPA has also set up a website providing updates on the clean-up, along with monitoring reports, and decisions and information related to the aftermath.
People have also launched legal action in defence of their rights, having come to better understand the impact of the accident on their homes. As of mid-to-late February, a number of environmental lawsuits by residents had been scheduled for court, eight of which were seeking more than $5 million from the railroad company. They are claiming damages not only for financial losses but also mental harm – costs that go beyond the environmental costs of the accident.
In early March, the EPA told the media it had instructed the railroad company, as the responsible party, to begin monitoring for dioxins. These persistent organic pollutants can be generated by the incomplete combustion of chlorine-containing substances. Long-term exposure can cause serious harm to humans and other organisms. Since the start of the clean-up of contaminated soil at the accident site, the EPA has been issuing updates, practically daily, to keep the public informed about the progress of works it is overseeing. Of particular concern to the agency has been the question of whether the clean-up process could cause secondary pollution. So it has continued with comprehensive, round-the-clock monitoring of the surrounding environment.
The focus is not solely on air and water in an environmental emergency response operation. In the initial period following the accident, phosgene and dioxins were the dangers most commonly discussed. Rather than monitoring and dealing with dioxins from day one, the EPA made the monitoring of compounds that could lead to acute poisoning and death, such as phosgene, its first priority, followed by water pollutants and, lastly, persistent organic pollutants capable of remaining in the soil and groundwater for a long time. This arrangement was also predicated on the characteristics of the pollutants, and on how long they would continue to have an effect.
Insights from the emergency response in Ohio
Unlike in the management of a stationary pollution source, there is no mechanistic sequence of steps in the emergency response to an environmental incident. The situation is likely to differ case by case, and there is little time for deliberating on how to deal with the matter or for comparing options.
In terms of planning, drills and practice, as reflected in relevant standards and programmes, there needs to be a return to the original purpose of environmental emergency response: to protect safety as far as possible, minimising harm to people and the environment in which they live. The way that emergency response measures are prioritised, and the duration for which they apply, should also conform with this principle, with adjustments made according to the nature of the emergency and how it evolves.
Environmental emergency response is more than just a matter of containing and suppressing a problem, at speed. The point of the operation is not only to explain, control and eliminate pollutants by relying on engineering and technology. That limits the understanding to an engineering mindset. We should see it as work that is undertaken for society; an emergency response to an unexpected turn of events by which we readjust and realign the relationship between humans and nature, and relationships among people.
In the Ohio case, the EPA studied and determined the environmental risks, monitored pollutants, held the polluter accountable, directed clean-up work in the aftermath, promptly disclosed information, organised public participation, responded to the demands of the public, and more. For polluters, the agency acts as both enforcer and guide, while for the public its main role is as the provider of a comprehensive service.
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