Frenemies U.S. EPA and Ohio EPA team up on rail cleanup

By Kevin Bogardus | 03/07/2023 01:29 PM EST

All eyes are on the Ohio EPA and its federal counterpart’s collaboration on the train wreck remediation effort, subjecting this critical partnership to national scrutiny as they work together in East Palestine, Ohio.

A plume rises from a Norfolk Southern freight train that derailed.

A plume rises from a Norfolk Southern freight train that derailed in East Palestine, Ohio, on Feb. 3. Gene J. Puskar/AP Photo

U.S. EPA’s efforts leading the cleanup of last month’s small-town Ohio train wreck hinges on working side by side with a state agency it has at times had tense relations with and that has been fertile ground for Republican administrations’ environmental nominees.

The agencies have clashed over Ohio’s handling of air pollution and its resistance to federal climate regulation. Now Ohio EPA is working side-by-side with U.S. EPA in the remediation effort, subjecting this critical partnership to national scrutiny.

Ohio EPA is part of a multiagency push to clean up East Palestine, population approximately 4,700, near the Ohio-Pennsylvania border after the Norfolk Southern Corp. train derailment spewed toxic chemicals into the community. The Feb. 3 accident put the state regulator on the national stage — its director, Anne Vogel, is set to testify on Capitol Hill later this week — as questions swirl over long-lasting environmental degradation for the town and the surrounding region.


The state agency has a mammoth challenge that will strain its already tight resources and limited authority as it coordinates with local, state and federal authorities to bring East Palestine back.

“The train derailment was unprecedented in terms of a release of chemicals in Ohio based on my nearly 30 years of experience,” said Joe Koncelik, who served at the Ohio EPA for eight years, including two as director.

In fiscal 2022, the state agency responded to 580 incidents in the field, according to its annual report that Koncelik shared. That included dealing with more than 108,000 gallons of spilled fuel and close to 18,000 gallons of hazardous materials.

The disaster that happened in East Palestine, however, is on a much grander scale.

Up to 1.1 million pounds of vinyl chloride, a carcinogen used to make a variety of plastics, was aboard the wrecked train, Reuters has calculated. The chemical was burned intentionally to stop an explosion, which created a giant black plume above the town as derailed cars burned for days.

“The train derailment was several orders of magnitude larger than what Ohio EPA typically responds to with regard to spills,” said Koncelik, now chair of the environmental and renewable energy group at Tucker Ellis LLP.

Ohio EPA spokesperson James Lee said the state agency’s staff responded in the early hours following the derailment. Roughly 10 Ohio EPA employees have been in town for the past several weeks, including personnel from emergency response and water divisions as well as the director’s office rotating in and out during the response.

“It is important to emphasize Ohio EPA and U.S. EPA have a good working relationship,” Lee said. “Specifically related to the East Palestine response, the teams from Ohio EPA and U.S. EPA continue to work alongside each other and in partnership with several other local, state and federal agencies.”

‘They work within the framework they’re given’

The Ohio EPA Emergency Response Section's Ron Fodo looks for signs of fish and agitates the water Feb. 20 in Leslie Run creek to check for chemicals that have settled at the bottom following the East Palestine, Ohio, train derailment.
The Ohio EPA Emergency Response Section’s Ron Fodo looks for signs of fish and agitates the water Feb. 20 in Leslie Run creek to check for chemicals that have settled at the bottom following the East Palestine train derailment. | Michael Swensen/Getty Images

The Ohio EPA has the personnel and equipment to respond to disasters, said an EPA employee who was granted anonymity to speak candidly about the response to the train wreck.

“I think they have an excellent emergency response program, especially compared to other Region 5 states,” the EPA employee said. “If there is an emergency, they have the ability to respond.”

The Ohio EPA has about 1,000 employees and a more than $202 million budget in 2022. That is an increase over the nearly $195 million from the prior year, according to budget documents.

Major catastrophes dot the agency’s history.

Mary Gade, then an EPA Region 5 official, remembers working with the Ohio EPA on the Miamisburg, Ohio, train derailment in 1986. Then, the train’s cargo of white phosphorus caught fire, sending up a toxic cloud and forcing the evacuation of thousands of residents.

Gade, who later became Illinois EPA director and EPA Region 5 administrator, said the Ohio agency was “a very solid and capable organization with an experienced staff” dedicated to their mission.

Environmentalists in the state, however, have long fought with the Ohio EPA. As the Rust Belt state has become a fracking hub, green groups have pushed the environmental regulator to get tough with industries that can pollute the air and water.

“I think they see what on is on the ground, but they are not able to pursue what they see,” said Lea Harper, managing director of the Freshwater Accountability Project, based in Grand Rapids, Ohio. “I don’t think they have the political support to do so.”

“They work within the framework they’re given,” said Bev Reed, a community organizer with Concerned Ohio River Residents. “And that framework is not enough.”

Battles over air, climate

A crew working alongside a stream as cleanup efforts continued on Feb. 16 in East Palestine, Ohio.
A crew working alongside a stream as cleanup efforts continued Feb. 16 in East Palestine. | Michael Swensen/Getty Images

Created in 1972, the Ohio EPA consolidated environmental programs spread across state government. The governor appoints its director who serves as a member of their cabinet.

Vogel has not been on the job for long. Last December, Ohio Gov. Mike DeWine (R) announced her nomination to replace departing Director Laurie Stevenson.

She was DeWine’s policy director during his first term. Before that, Vogel had worked 10 years for the Columbus-based utility giant, American Electric Power Co., including on federal energy policy in Washington, D.C., according to her LinkedIn profile.

On Thursday, Vogel will testify before the Senate Environment and Public Works Committee, with other witnesses including Norfolk Southern CEO Alan Shaw and EPA Region 5 Administrator Debra Shore.

Republican lawmakers on the House Energy and Commerce Committee also sent Vogel a letter with questions about the train wreck.

Koncelik said the Ohio EPA gets most of its authority under federal law with EPA playing “an oversight role” for the state agency. The two have “a good working relationship,” he said.

“In my experience, there has always been some historical tension between the federal and state agencies when U.S. EPA exercises its oversight function,” Koncelik said. “That tension is typical between federal and state agencies.”

Relations between the two agencies have been uneasy at times.

In 2001, EPA released a stinging report that found fault with the Ohio EPA’s air quality programs over a five-year period. That report helped sink the nomination of Donald Schregardus to be EPA’s top enforcement official, who previously led the Ohio EPA from 1991 to 1999 (E&E Daily, Sept. 18, 2001).

A later Ohio EPA director, Scott Nally, wanted to rename the state agency to distance it from its federal cousin. He also helped stand up the Association of Air Pollution Control Agencies to rival a longtime environmental regulators’ group, the National Association of Clean Air Agencies (Greenwire, Nov. 5, 2012).

The state agency remains a member of AAPCA today.

Craig Butler, another head of the Ohio EPA, deplored the Clean Power Plan, EPA’s Obama-era rule designed to curb power plants’ carbon emissions.

“This U.S. EPA Clean Power Plan is a seriously flawed proposal and should not be used to set unprecedented national policy,” Butler said in written congressional testimony in 2015.

The Supreme Court stayed the climate rule before it could go into effect.

Nally and Butler were also considered contenders for EPA administrator by Republican presidential candidates Mitt Romney and Donald Trump, respectively. While Romney failed to win the White House, Trump chose Oklahoma Attorney General Scott Pruitt for the job instead.

Ohio EPA leaders have been among U.S. EPA’s critics, but a former director is in its ranks.

Chris Korleski is director of EPA’s Great Lakes National Program Office. He led the Ohio EPA under then-Gov. Ted Strickland, a Democrat.

“There is a long history of high-quality professionals that have led that agency,” said Gade, now president of Gade Environmental Group LLC.

‘Coordinating closely’

A cleanup worker stands on a derailed tank car of a Norfolk Southern freight train in East Palestine, Ohio.
A cleanup worker stands on a derailed tank car of a Norfolk Southern freight train in East Palestine on Feb. 15. | Gene J. Puskar/AP Photo

Last month, EPA issued an order to Norfolk Southern to pay for cleaning up the train wreck. In addition, it set up a “unified command structure” for the remediation effort, which includes the Ohio EPA and other agencies.

“This approach helps ensure the continued daily coordination of EPA and Ohio EPA, as well as our other partners,” said Jeff Kelley, public affairs director for EPA Region 5.

Kelley also said the two agencies have “a long-established, close working relationship as co-regulators implementing environmental laws in Ohio.”

“Within hours of the derailment, the agencies began working side by side, operating out of the same command post and coordinating closely,” Kelley said.

Koncelik said the Ohio EPA has a dedicated, experienced staff but often relies on U.S. EPA to handle emergency cleanups. The federal agency has the Superfund law — or the Comprehensive Environmental Response, Compensation, and Liability Act — to require companies to clean up their messes.

“The Ohio EPA does not have equivalent legal and/or financial resources as U.S. EPA,” Koncelik said, noting it does not have “a state legal equivalent to CERCLA.”

Green groups have been critical of the response to the train wreck. Melanie Houston, managing director of water policy for the Ohio Environmental Council, said in a statement environmental agencies were slow to use their full powers while more monitoring is needed as air and water testing data is “woefully incomplete.”

East Palestine’s residents pressed for testing for dioxins, which can be created when vinyl chloride is burned. EPA announced last week it would require monitoring for the toxic chemicals.

“The Ohio EPA can only do what the Ohio General Assembly and governor give it the authority and resources to accomplish,” Houston said. “While we firmly believe the agency should be more responsive and transparent to the community, the state government has eroded the Ohio EPA’s authority and resources over the past few decades.”

Harper has a similar assessment. She said the Ohio EPA doesn’t have the regulatory authority to better protect the environment.

“You have a job to do, but you are not able to do it,” Harper said. “How many East Palestines will it take to get something done?”

Reporter Ellie Borst contributed.