Railroads are a very safe mode of transportation with an excellent track record, but on occasion derailments do occur. Some of these derailments result in spills and releases of molecules which bring them into the environmental regulatory arena. The environmental regulatory setting for the derailment depends on what was released, how much, and where it went. While both federal and state environmental agencies may have jurisdiction to require emergency response and cleanup, environmental statutes also provide for citizen suits and third party liability.
Is Your Molecule Regulated?
Regulatory involvement by the United States Environmental Protection Agency (EPA) is determined by the type of molecules released. Federal environmental statutes define what is a “hazardous substance” or “pollutant” warranting regulatory involvement. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is the government’s primary environmental statute governing the response to releases of “Hazardous Substances,” “Hazardous Chemicals,” “Extremely Hazardous Substances,” and “Toxic Chemicals.” CERCLA’s umbrella definition of “Hazardous Substance” also incorporates other environmental statutory definitions by reference. These are:
- The Clean Water Act (CWA) as amended by the Oil Pollution Act (OPA), which governs releases of petroleum and other “pollutants”
- The Resource Conservation and Recovery Act (RCRA), which regulates hazardous waste
- The Clean Air Act, which governs airborne pollutants
- The Toxic Substances Control Act, which regulates specialty chemicals
There are additional environmental statutes under which EPA or the state environmental agency can regulate other substances. The other obligations imposed by these environmental statutes are not superseded by CERCLA and should not be overlooked in a derailment setting.
Bear in mind that the Department of Transportation has a slightly different definition for “Hazardous Materials.,” It incorporates CERCLA’s “Hazardous Substance” definition but already including the “Reportable Quantity” at which a spill or release must be reported.
Reporting Obligations: Got 15 Minutes?
Under both CERCLA and CWA, the “person in charge” of a facility or vessel must report to the National Response Center (NRC) (800-424-8802) a “release” of a “hazardous substance” from a facility “into the environment” or oil, including non-petroleum oil, into navigable or otherwise jurisdictional waters in an amount equal to or greater than a specified “Reportable Quantity” (RQ). EPA has listed the RQ for each Hazardous Substances in tables found in the Code of Federal Regulations. If EPA has not listed a specific RQ, the statutory RQ applies. For releases of oil under the CWA jurisdiction, a sheen is reportable.
The person in charge must report immediately the release to the NRC as soon as he or she has constructive or actual knowledge of a CERCLA reportable release. Be aware that “immediate” reporting is “within 15 minutes” per EPA policies. The telephonic notification would report that a release of a hazardous substance in an amount equal to or greater than a RQ has occurred. NRC will ask about specific location, time of release, material released, and quantity in order to coordinate federal, state, and local emergency response resources. The full details of the release may not always be known at the time of the telephonic notice, nor should the person in charge wait for complete information. Details can be telephoned as developments are known. This is especially important because a follow-up written report to the NRC is not required. The administrative record of the report may become important if there is subsequent investigation or enforcement.
You’re Not Done Yet: Differences in CERCLA and EPCRA Reporting
In addition to CERCLA reporting obligations, the “person in charge” must consider the reporting requirements of the Emergency Planning and Community Right-to-Know Act (EPCRA). EPCRA requires immediate notification of releases of RQ of “Hazardous Chemicals,” “Extremely Hazardous Substances,” and “Toxic Chemicals” to Local Emergency Planning Committees (LEPC) and State Emergency Response Commission (SERC). If there is no LEPC, local emergency personnel should be notified.
EPCRA requires follow-up written report as soon as is practicable. According to EPA’s EPCRA/CERCLA Penalty Policy, written notice should be issued within seven days of the release. This notice to the LEPC and SERC should include:
- Actions taken to respond to and contain the release
- Any known or anticipated acute or chronic health risks associated with the release, and
- Where appropriate, advice regarding medical attention necessary for exposed individuals.
Calculating the Volume
It is important to calculate the volume of the hazardous substances or petroleum as accurately as possible. This is in order to determine whether a RQ has been released. EPA also uses the volume to compute penalties for the unpermitted discharge or late report. Finally, EPA or the state environmental agency overseeing the response or remediation will refer to the volume reported to be released to determine whether the response or remediation is complete.
When certain bulk equipment is ruptured in a derailment and releases the entire contents of the cargo, the calculation of volume may be a simple matter. Refer to train consists and manifests for the content and volume. Measuring the contents transloaded can also inform the volume released.
For a locomotive fuel tank rupture, railroads often report the maximum capacity of the fuel tank. However, thought should be given to refining the maximum volume released. This can be done by measuring the remaining contents, if any. In addition, calculations of fuel usage since the last fueling can further refine the amount actually released. These calculations can be made subsequent to the initial telephonic notice to NRC in a follow-up call to the NRC or in a report to the environmental agency with jurisdiction over the response or remediation.
For any release to the ground, documentation should be made of the content, concentrations, and volumes of excavated soils and ballast. This informs how much was released as well as how much was recovered. Characterization will also inform the regulatory status for disposal purposes. Some chemical commodities call for special handling and disposal when spilled.
Additional Clean Water Act Concerns
Discharges of pollutants into navigable waters are prohibited except with a CWA National Pollutant Discharge Elimination System permit. Unless the railroad can demonstrate a defense, EPA may bring an enforcement action to assess a penalty or order additional work for an unpermitted discharge.
Site specific data collection is especially important if there is a fish kill or other direct impact on flora or fauna. Documenting areas that are not impacted may become as important as data collected from areas directly impacted by the derailment. The environmental agencies may order remediation work to address the release. They may also pursue a claim for natural resource damages.
CWA prohibits dredging and filling jurisdictional wetlands and waterways without a § 404 permit. If the derailment occurred near or in a river or other waterway, the response activities may require a § 404 permit. Emergency permits are available from the US Corps. EPA, which shares jurisdiction, construes the emergency activity narrowly. Penalties and restoration obligations can also attach to activities exceeding the emergency permit. Take care that reconstruction of track or other railroad structures do not exceed the scope of the emergency permit. If additional improvements or betterments are contemplated in the context of repairing the track or other structures, this may require a regular § 404 permit.
Additional Clean Air Act Concerns
Releases of hazardous substances into the air is both a regulatory and tort concern. Poisonous or toxic inhalants are specialty chemicals cargo, which may also be regulated under other environmental statutes. These statutes may have additional reporting or other requirements.
It is especially important to collect contemporaneous data on wind and weather. Real time data informs evacuation and other immediate concerns. In addition, actual data may help inform or rebut air dispersion modeling sometimes done by third party plaintiffs or regulatory agencies to determine the extent of off-site geographic impact.
Penalties
Both federal and state environmental agencies may seek penalties in an enforcement proceeding. Pursuant to federal environmental statutes, civil penalties can be levied up to $37,500 per day per violation. The amount depends on good faith efforts to comply, economic impact of penalty on violator, and other factors. Criminal penalties are also a risk. Specific intent to commit a crime is not always required. Negligent violations of certain CWA provisions include a general prohibition against discharges. Penalty for failure to provide notice is up to 5 years in prison. Potential prison time for negligent violations is up to one year.
EPA enforcement policies guide assessment of penalties. For unpermitted discharges, factors include the harm to persons and environment. For untimely reporting, penalties are calculated on volume released and time it took to report. For exceeding the scope of an emergency dredge and fill permit under CWA, EPA can order restoration, mitigation, and other expensive actions in addition to penalties. Penalties can sometimes be mitigated with supplemental environmental projects.
There are three affirmative defenses under CERCLA and CWA. They include (1) an act of an unrelated third party, (2) an act of war, and (3) an act of God. For a derailment involving a grade crossing accident, the third party defense could be available if it is not the railroad’s fault. Otherwise, these defenses are very difficult to prove. Whether terrorist acts meet the criteria of an act of war defense is an open question being litigated in the September 11 Litigation. While a significant storm event may precipitate a flood or rock slide, these do not typically qualify for the act of God defense.
Site Access
The emergency response agencies appoint an Incident Command for the derailment. Incident Command can restrict access and prevent the railroad from entering into the exclusion zone. It is important for the Incident Command to have confidence in the railroad’s emergency response capabilities and approach.
Access for environmental agencies is authorized by statute. This applies only to the agency and its designated contractors for certain activities related to the release. If the release has migrated on to adjacent property, access to adjacent land must be negotiated with the landowner. While environmental agencies can facilitate communication and the need for railroad contractors to access adjacent property for response activities, agencies can only order access for themselves and their contractors. Some states may have a process whereby access can be obtained for emergency response. For example, in Illinois the court can be petitioned for immediate access if the adjacent landowner denies or conditions it with unreasonable demands.
Agency Information Requests
Even if the EPA is not present at the derailment scene, you may receive a Request for Information under CERCLA or CWA weeks, months, or even years afterwards. These Information Requests are similar to an administrative subpoena. Penalties can be assessed for late, incomplete, or false responses. The Information Request could ask about causation, the history of spills, or releases at the location or geographic area, and other facts. Recently, EPA has been asking that the response be certified as to accuracy and completeness by an individual familiar with the response, although there is no statutory requirement for this. These Information Requests may be coupled with a demand for reimbursement of EPA response costs.
Citizen Suits and Third Party Liability
If a release migrates from railroad property to adjacent property, the railroad could be subject to claims not only under tort theories, but also citizen suit or other provisions of environmental statutes. CERCLA provides for recovery of response costs consistent with the National Contingency Plan. RCRA and CWA provide for private enforcement actions brought by citizens where the government is not bringing an enforcement action. Cooperation and oversight of the response actions by an environmental agency does not necessarily immunize the railroad from other claims.
Compliance in Chaos
There are measures that you can take to ensure compliance with environmental requirements before, during, and after a derailment incident.
Review and update your emergency response plan.
Meet with the state and local emergency response agencies before there is a derailment so that they know your capabilities. This may help Incident Command return access and control of the derailment site back to you.
Collect accurate data during the initial emergency response. For example, in both penalty and remediation settings, the environmental agencies will refer to the quantity of hazardous materials or oil released. When excavating, take an adequate number of samples to inform a calculation of Hazardous Substances removed.
Although it may be more expensive at the time, there are circumstances where it may be advisable to over-excavate impacted soils while track is pulled up or otherwise out of service. Keep track of volumes excavated and concentrations of hazardous substances in the soils. This can assist in long term remediation issues if an environmental agency insists on removal of every molecule.
Review calculations of volumes initially reported and correct the administrative record with a telephonic update to NCR and a follow-up written report to the appropriate agency.
Remember that even the worst derailment is an exception to the safety record that railroads hold in providing the most environmental friendly mode of freight transportation.
For further information about environmental issues in a derailment, contact Pamela Nehring at pnehring@daleymohan.com.
This article was originally published in the American Short Line and Regional Railroad Association’s publication Legal Tracks on November 21, 2012.