Who would be responsible in Spain for an accident involving toxic products such as the one that occurred in the United States?
The derailment on the East Palestine border between Ohio and Pennsylvania (USA) of a train containing numerous toxic chemicals has resulted in an environmental disaster whose effects may take months to fully determine. The compounds included vinyl chloride, a carcinogen, as well as ethylhexyl acrylate, butyl acrylate and ethylene glycol monobutyl ether, a solvent.
Norfolk Southern, the company in charge of the derailed train, reported that it was necessary to drain the material from the most compromised cars to prevent an explosion.
The operation resulted in a fire and a gigantic black cloud that could be seen from great distances.
In Spain, the Law on the railway sector, in the regulation on the international transport of dangerous goods by rail (RID 2021) and in Royal Decree 412/2001 of 20 April, establishes the obligations of carriers of dangerous goods.
Table A of the RID 2021 includes vinyl chloride as dangerous goods, as well as the provisions for its transport.
If these are not complied with in Spanish national territory, the person responsible would be liable for an administrative infringement that could lead to a fine, as well as compensation for the damage caused to infrastructure or means of transport, says Joaquín Lozano, an environmental law lawyer at Cuatrecasas.
“It is presumed, unless proven otherwise, that the activity of transporting dangerous goods by rail has caused the damage or the imminent threat of such damage occurring when, due to its intrinsic nature or the way in which it has been developed, it is appropriate to cause it”, he explains.
The incident, caused by a mechanical problem with the axle of a rail car according to federal investigators, caused the evacuation during the first weekend of February of more than 1,500 local residents in an emergency operation, as announced by Ohio Mayor Trent Conaway at a press conference, to avoid mass poisoning.
The governors of Ohio and Pennsylvania decided to end the evacuation on 8 February after air quality samples in the area found contamination levels to be “below levels of concern”, although Norfolk Southern and independent researchers are still assessing the long-term effects of chemicals in the soil, water and air.
Lozano points out that, “for their part, the competent authorities must apply the measures foreseen in the special civil protection plans for the risk of accidents in the transport of dangerous goods by road and rail in their state and regional plans”, in accordance with the Basic Directive for Civil Protection Planning approved by Royal Decree 387/1996, of 1 March.
These special plans define the dangerous goods that justify them, the flow maps of the transports affected by the special plans, the actions necessary to protect people, goods and the environment in an emergency, such as traffic regulation, warning systems, clean-up tasks, among others, and the management of the emergency, as listed by the lawyer.
The plans also specify the information to be collected on these accidents, the coordination mechanisms between the state plan and the regional plans and the measures to provide adequate assistance to people with disabilities and other vulnerable groups.
DAMAGE TO THE ENVIRONMENT AND THE ROLE OF SPECIALISED LAWYERS
Operators in dangerous goods transport activities are also subject to the Environmental Liability Act, which provides for prevention, avoidance and remediation of environmental damage, as well as liability for costs.
Such cases could include more than 3,000 dead fish in the Ohio River, according to the state Department of Natural Resources, as well as the illness and death of several farm animals reported by residents of towns further and further away from the accident.
In this regard, “environmental lawyers can help identify and comply with regulatory requirements and thus reduce the risk of regulatory non-compliance,” says Lozano.
“Environmental law is characterised by the fact that it is constantly being developed and updated and, increasingly, by having a cross-cutting nature that affects all areas of business, from regulatory compliance, to corporate governance, to taxation and access to finance,” he explains. “All of this requires highly specialised knowledge through constant study and understanding of EU, national and regional regulations.”
The technical level of the subject matter leads to regular collaboration with specialised advisors. “To maximise these synergies it is important that both parties can ‘speak the same language’, which requires the lawyer to be able to understand and apply eminently technical criteria,” says Lozano.
He also notes that he has observed an increased demand for transparent, homogeneous and comparable information related to the environmental performance of companies, which points to the growing importance of integrating sustainability into the development of economic activity.
“Optimising compliance with environmental law in Spain means going beyond mere compliance with regulatory requirements and incorporating a true sustainability strategy, providing the company with modern and functional environmental policies and regulatory compliance systems throughout its value chain, he says, referring to the Environmental Taxonomy Regulation approved by the European Union”.
“This would allow the company to mitigate the risk of future regulatory changes, enhance its reputation and access markets based on sustainable finance,” he says.