Deregulation, Normal Accidents, and the Airborne Toxic Event
What can we learn from the East Palestine train wreck?
Source: Wikimedia Commons
The East Palestine train derailment is the story that won’t go away. Images of enraged residents shouting at company executives and government officials in regards to the inadequacy of the response remind us all that across our vast industrial economy accidents of 1 sort or one other are all the time waiting to occur while private firms and the agencies which can be presupposed to regulate them are too often asleep on the switch.
The train was carrying various hazardous substances, including vinyl chloride – a known human carcinogen. Vinyl chloride is widely utilized in the manufacture of polyvinyl chloride or PVC that’s ubiquitous in our built environment (all those hard white plastic pipes you see). Given the massive growth in plastics production across the U.S., and particularly in Ohio, there are actually tens of millions of gallons of such chemicals moving across the region’s rail system on any given day.
Probably the most worrisome aspect of the East Palestine train derailment involved five derailed tanker cars that contained some 116,000 gallons of vinyl chloride. Within the immediate aftermath of the derailment, Norfolk Southern and its hazardous materials contractor decided to drain the five tanker cars right into a ditch to avoid an explosion. They then performed what was known as a “controlled venting” or a “controlled release,” regardless that it sounded more like an open-air burn of a giant volume of toxic chemicals. While this may occasionally have been the appropriate move by way of emergency response, Norfolk Southern in addition to state and federal regulators did a terrible job explaining the risks and advantages of the choice. You don’t must be a chemist to acknowledge that burning something like vinyl chloride might be not an excellent idea and must be avoided if in any respect possible. Images of a dark toxic cloud rising over people’s houses have rightly raised serious concerns about contamination and health effects. And when the federal government keeps telling those that every part is OK, that the toxic substances of concern haven’t exceeded secure levels, while these exact same individuals are getting sick and watching fish kills occur in real time, they rightly lose trust. As one woman shouted at a gathering of residents shortly after the burn (a gathering that Norfolk Southern executives planned to attend but then bailed out of citing safety concerns): “Why are people getting sick if there’s nothing within the air or water.”
Exposed families have reported a range of troubling symptoms, including coughing, headaches, nausea, fatigue, and rashes. Doctors are apparently at a loss as to the way to advise them because nobody knows what these people were actually exposed to. Going forward these individuals are taking a look at a lifetime of questions on whether and the way the toxic substances they’ve been exposed to will manifest as cancer or another dreaded disease in the long run. This type of slow violence can produce collective trauma for communities that’s compounded when the federal government seems unsteady in its efforts to guard public health.
The legal and political responses to the accident have been predictable. The state of Ohio has just filed suitagainst Norfolk Southern. A class motion lawsuit is taking shape. A bipartisan group of Senators has introduced recent laws reforming railway safety. And hearings are being held, including a hearing before the Senate Environment and Public Works Committee on Thursday featuring Senators from Ohio and Pennsylvania, Norfolk Southern CEO Alan Shaw, state and federal environmental regulators, and first responders. Throughout the hearing, one other Norfolk Southern train derailed in Alabama, which Senator Whitehouse identified in his sharp questioning of Shaw. Fortunately, that train was empty and nobody was hurt. However the irony of one other derailment happening on the precise moment that the Norfolk Southern CEO was talking about how safety is his primary priority and the way he’s committed to creating things right was hard to miss.
Two competing narratives have taken shape in the wake of the disaster and were very much on display in the course of the Senate hearing: (1) big rapacious corporations making the most of deregulation to chop corners, fire employees, and enrich shareholders, which has endangered people and communities and (2) an inadequate and bungled response by EPA and state agencies, particularly regarding timely communication in regards to the actual risks which can be present and testing, which has further undermined the trust that individuals have of their government.
Vinyl Chloride, Dioxin, and The Airborne Toxic Event
The human health concerns listed below are potentially quite serious. This has been compounded by the state and EPA’s bungled initial response. Residents are rightly furious, even within the face of repeated statements by regulators and company officials that East Palestine is secure.
Vinyl chloride itself, as noted, is a known human carcinogen and has been linked to liver cancer in employees world wide in addition to brain cancer, lung cancer, lymphoma, and leukemia. As an industrial chemical, vinyl chloride was considered one of the 62,000 chemicals “in commerce” on the time that the Toxic Substances Control Act (TSCA) was enacted in 1976, which suggests that it was essentially grandfathered in under the statute and presumed to be secure unless and until EPA made a finding of “unreasonable risk.” To this point, vinyl chloride has never been subject to regulation under TSCA’s program for existing chemicals, despite repeated calls from environmental groups and others to accomplish that (including recent calls to categorise vinyl chloride as a high priority chemical under the brand new TSCA framework that Congress adopted in 2016). EPA’s efforts to control vinyl chloride as a hazardous air pollutant under section 112 of the Clean Air Act also went on for greater than a decade and was ultimately an enormous a part of the rationale why Congress overhauled that section of the statute within the 1990 amendments.
Because vinyl chloride evaporates quickly when exposed to air and breaks down after a number of days, the primary health concerns regarding East Palestine have focused on what happens once you burn a big volume of vinyl chloride within the vicinity of a residential neighborhood. In that respect, the 2 primary substances of concern following the burn that were reported within the press were phosgene (a toxic gas used as chemical weapon in World War I) and hydrogen chloride. More recently, attention has shifted to dioxins—a category of chemical compounds, probably the most toxic of which is 2,3,7,8-tetrachlorodibenzo-p-dioxin (commonly known as TCDD). Based on the National Research Council, TCDD, or what is usually just called dioxin, “is amongst probably the most toxic anthropogenic substances ever identified” and has been implicated in various high-profile industrial disasters, equivalent to Times Beach Missouri in addition to the tragedy of Agent Orange. Some have referred to dioxin because the Darth Vader of chemicals due to the various cancer and non-cancer health effects that it’s linked to. Dioxin can also be extremely persistent within the environment and it bioaccumulates. Based on the EPA, it’s “commonly found” at hazardous waste sites across the country.
EPA began investigating dioxin risks within the mid Eighties and initiated a proper re-assessment of dioxin in 1991. In 2012, greater than twenty years later, EPA released its final draft non-cancer risk assessment. On the time, EPA stated that the cancer risk reassessment could be finalized “as expeditiously as possible.” To this point (thirty-two years after it initiated its formal reassessment of dioxin!), EPA has still not released its final cancer risk assessment and has given no indication of when it expects to accomplish that. The story behind the delay is complicated and demonstrates fundamental problems with EPA’s approach to risk assessment (a subject that could have to attend for a future post), but much of it boils all the way down to the agency’s inability to bring risk assessments to an end, an consequence that’s all too often within the interests of the regulated community. Within the dioxin case, much of the delay has been brought on by disputes over the form of the dose-response curve at very low levels of exposure, the precise biological mechanisms involved, and whether dioxin is an initiator or a promoter of cancer. These uncertainties may never be resolved. Meanwhile, the danger assessment process soldiers on, unable to delivery useful and timely results for regulators.
What’s virtually certain is that dioxins were produced when the vinyl chloride was burned within the wake of the East Palestine derailment. But nobody can say how much or what could have happened to those dioxins within the wake of the burn because there was no testing done for dioxins for 4 weeks after the accident. Finally, on Friday March third, EPA ordered Norfolk Southern to check for dioxins, regardless that the community had asked for this from the start. In explaining the shortage of testing, EPA Region 5 administrator Debra Shor told Senator Capito ultimately Thursday’s Senate hearing that because EPA found very low levels of phosgene and hydrogen chloride of their initial testing, there was a really low probability that dioxins could be present. But that’s hardly a reason not to check for the chemicals that individuals are most concerned about. If immediate testing for dioxins had been performed and demonstrated that this was not something to fret about, that will have been an enormous relief for the community. The indisputable fact that it took a month to order the testing demonstrates an enormous misunderstanding of the entire point of monitoring and testing as a part of any comprehensive response to such an event. Simply put, monitoring and testing are usually not just technical exercises, but are highly charged parts of any response to any release of toxics which can be absolutely essential for people to feel secure.
Extensive air, water, and soil sampling do now appear to be in place. Data are being made available in near real time. All agencies have committed to a long-term monitoring program for the region. Initial reports on dioxin sampling of among the dirt faraway from the positioning for transport to hazardous facilities in other states haven’t reported concentrations at levels of concern. Results from broader dioxin sampling of the encompassing area haven’t yet been released.
No matter what those tests show, nevertheless, residents will likely proceed to wonder if anything was missed within the month-long delay. They may proceed to query whether the headaches, coughs, rashes, and other symptoms they’ve experienced are only temporary or harbingers of more chronic illnesses in the long run.
Jumping the tracks: deregulation, normal accidents, and toxic ignorance
From a regulatory perspective, what happened in East Palestine will be seen as a convergence of two trends during the last forty plus years: (1) railroad deregulation and (2) the inadequacy of our existing laws regulating toxic substances, including emergency response.
On the primary, these is absolute confidence that railroad deregulation has encouraged Norfolk Southern and other large rail corporations to deal with cutting costs and increasing profits on the expense of much-needed investments in infrastructure and safety. To take one example, in recent times, the railroad industry has adopted so-called Precision Scheduled Railroading (PSR)—a scheme promoted by activist Wall Street investors to extend efficiency and on-time deliveries while reducing costs and juicing profits. In point of fact, this has meant longer trains, fewer engineers and other key staff, and more pressure to deliver. As well as, the Trump administration’s decision to calm down the principles for breaking systems on trains that carry hazardous materials – a roll back of an Obama regulation that the Biden administration has up to now didn’t reinstate – also made an accident like East Palestine that much harder to avoid. On top of all of this, there are fewer railroad inspectors on the beat to be certain that the railroads are following the principles that remain.
Like a lot of its peers, Norfolk Southern has taken full advantage of deregulation while having fun with the fruits of special privileges and bailouts from the federal government (see, e.g., the Biden administration’s decision in late 2022 to intervene within the railroad labor dispute, which Ohio Senator J.D. Vance characterised on the Senate hearing last Thursday as tantamount to a government bailout). Indeed, during the last six years, Norfolk Southern has reduced its workforce by some 38% because it implemented the PSR program. Meanwhile, profits have soared. The corporate made greater than $3 billion in profits last yr. And during the last five years, based on the Latest York Times, it has returned some $18 billion to shareholders through dividends and stock buybacks—double the quantity it has invested in its infrastructure and operations.
When put in that context, this looks like an accident waiting to occur. And the evidence is obvious that it is a problem that goes well beyond a single company. Since 2015, there have been a couple of hundred railroad accidents involving transport of hazardous substances – about 1 per 30 days—far lower than the thousand plus derailments experienced every yr, but a surprisingly large number when one thinks recognizes how dangerous a few of these hazardous materials are. While nobody can say that deregulation and the deal with profits caused this particular accident, it is obvious that it made such an accident that rather more likely.
Second, the East Palestine derailment and its aftermath also illustrate the intense problems which have plagued the federal regulatory approach to toxic substances for a long time. Vinyl chloride, as noted, was grandfathered in under TSCA and thus has never been subject to serious regulatory attention under that statute. By way of the cleanup, EPA also seems to have deferred an excessive amount of to Norfolk Southern and it’s contractors, particularly on testing, which has further undermined trust. The Guardian reported over the weekend on a joint investigation with ProPublica finding that much of the indoor testing that has been performed within the wake of the disaster has been done by Norfolk Southern’s long-time contractor, the Center for Toxicology and Environmental Health (CTEH). Questions have been raised in regards to the adequacy of the testing and what conclusions one can draw. Based on the report, CTEH has been testing for VOCs only. And yet, each CTEH and Norfolk Southern proceed to say on the premise of those tests that residents’ homes are “secure.” In fact, all they’ll really say is that the tests they performed didn’t find any contaminants at levels which can be thought to cause harm. Their tests don’t tell us anything in regards to the presence of other contaminants. Nor do they recognize that exposures below the degrees they detected may very well be causing harm, especially to sensitive groups. One thing we now have learned during the last half century of environmental law is that nearly all supposedly secure exposure limits for hazardous substances have been reduced as recent evidence has documented that harm occurs at lower exposures than previously believed.
The reality is that the regulators don’t really know – and may not know – what’s secure and what will not be on this context. And in the event that they don’t test widely and arrange a system for long run monitoring, they (and we) won’t ever know and never have the chance to learn. That is an abdication of the fundamental commitment to guard public health that’s presupposed to be on the core of our environmental laws.
Learning from East Palestine
Stepping back from the East Palestine disaster, there isn’t any query that railway safety and regulation should be back on the agenda in Congress, nevertheless it is difficult to see how far the present bipartisan effort can get in today’s polarized environment. At the identical time, the Biden administration must revisit the Trump roll backs on rail safety and do whatever it could possibly via regulation. As for EPA, if it could possibly’t muster a powerful response to those kinds of toxic accidents, how can we possibly expect it to do its job in the case of the long run challenge of protecting public health from the myriad types of pollution and toxic substances which can be all too common parts of on a regular basis life for a lot of tens of millions of Americans. In a rustic that has already lost an excellent deal of trust in government and after 4 years of relentless efforts by the Trump administration to gut EPA and other agencies, a more coherent and effective response by the federal government may need reminded people (even and particularly in a red state like Ohio) that the federal government has a significant role to play in protecting public health and safety.
None of which is to say that that is in some way EPA’s fault. Make no mistake that the responsibility for this accident lies squarely with Norfolk Southern and the deregulation of railroads that began within the early Eighties. All of which illustrates yet again how necessary these network industries are to on a regular basis life and the way problematic it’s to adopt a system of “light-handed regulation” that relies on competition and markets to deliver essential services. Network industries that involve moving massive volumes of hazardous substances through communities like East Palestine should be regulated for what they’re: critical infrastructure.
As for the cleanup, Norfolk Southern can pay for it – that much is obvious. CERCLA provides ample authority for EPA to force the corporate to wash up the positioning. Removal and remediation will take time and there’ll inevitably be problems along the best way. EPA, for instance, has already been criticized for moving too slowly in directing the removal of contaminated soil from the positioning. And neither EPA nor Norfolk Southern CEO Alan Shaw was capable of say where the contaminated materials were going and the way quickly they’d all be removed. But it will get sorted.
With respect to the long run, CEO Alan Shaw has stated repeatedly that the corporate will stay so long as it takes to “make it right” for the people of East Palestine. But he was evasive at the Senate hearing last Thursday about whether that meant paying for long-term health monitoring and health take care of families and providing compensation for losses in property value. One can only suspect that he will need to have been coached by company lawyers to remain on script (Norfolk Southern is committed to “making it right” was a relentless refrain) somewhat than commit to paying for anything beyond what’s required. Years of litigation will likely determine how that plays out.
When the dust finally settles, when the cleanup is finished, when the politicians have moved on to the following crisis, what then will occur to the community of East Palestine—to the people whose homes and lives have been turned the wrong way up? Like so many others living in industrial sacrifice zones across the country and world wide, they deserve to not be forgotten. But greater than that, they should know that the federal government and the businesses involved have actually learned from this disaster and are working to adopt the crucial reforms to be certain it doesn’t occur again.
