‘An unmitigated disaster:’ Federal officials at train derailment vow to hold Norfolk Southern accountable

CINCINNATI (WXIX) - Officials gathered in East Palestine on Thursday to ease widespread fears about the safety of the area surrounding the Norfolk Southern train derailment as well as the safety of the downstream watershed that provides drinking water for millions of people, including 80 percent of Greater Cincinnati.

“We’re testing for everything that was on that train,” said U.S. EPA Administrator Michael Regan. “We feel comfortable that we are casting a net wide enough to present a picture that will protect the community.”

That community, comprising around 4,000 residents of East Palestine in northeast Ohio, are reeling two weeks after the Feb. 3 derailment. Ten of the 50 cars were carrying hazardous materials. Two carcinogens used in making plastics were among a host of chemicals spilled: vinyl chloride and butyl acrylate. The vinyl chloride was intentionally burned to avoid an explosion, releasing toxic gases phosgene and hydrogen chloride into the air. Some amount of butyl acrylate, a water-soluble compound, slipped beyond the booms and dams set up to contain it and formed into a plume heading toward the Ohio River.

A federal lawsuit against Norfolk Southern alleges 1.1 million lbs. of vinyl chloride were released into the environment. Chemical runoff resulted in the death of more than 3,500 fish in streams near East Palestine, according to the Ohio Department of Natural Resources.

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“What an unmitigated disaster,” U.S. Rep. Bill Johnson (R-Ohio) said. “No community should have to go through something like this.”

Many East Palestine residents are displaced in hotels. The air is still acrid and faintly sweet. Reports of illness have surfaced. Some people have returned to their homes, and more undoubtedly want to but remain afraid. Regan implored that those residents have faith in the science.

“I’m asking that they trust the government, and that is hard. We know that there is a lack of trust, which is why the state and federal government has pledged to be very transparent. As soon as we get information, we are posting that information. The State of Ohio and the EPA are working hand-in-hand, and if we say that the water is safe and the air is safe, we believe it, because we have tested it, and the data show it.”

Multi-layered response and current conditions

The Ohio EPA is leading the emergency response phase with multiple federal agencies assisting in various capacities, including the U.S. EPA, the Centers for Disease Control, the Federal Rail Administration, the Department of Health and Human Services and the National Transportation Safety Board.

U.S. Sen. Sherrod Brown (D-Ohio) described the coordination between Gov. Mike DeWine, President Joe Biden and various lawmakers as “seamless.”

[DeWine seeks federal help for East Palestine]

The U.S. EPA is conducting “robust” and continuous air quality measurements using an airplane, a mobile van and stationary air monitors, according to Regan. Officials said last week testing data showed the air quality was safe enough for residents to return.

Voluntary air screenings of more than 480 homes in the area have shown no traces of vinyl chloride or HCL, Regan said. He did not say whether butyl acrylate was detected but said the tests showed no evidence that residents should be concerned about returning.

The Ohio EPA working with local health agencies to test ground and surface waters. The test results show municipal water wells in the are safe, according to Ohio EPA Director Ann Vogel.

Residents that use private wells can submit for testing set up by the Ohio EPA. Those residents are advised to drink bottled water only until those tests are performed.

Norfolk Southern is paying for all testing, either directly through their contractors, or indirectly through Ohio EPA’s and U.S. EPA’s cost recovery authority.

No agency is testing whether surfaces in the area have gathered vinyl chloride or HCL residue. Someone who touches such residue and then touches their face or another sensitive area could suffer burns. “We haven’t found significant residue,” Vogel said. “The nature of the controlled release was such that those materials combusted and dissipated into the air.”

Testing by the Ohio EPA shows no traces of vinyl chloride in the Ohio River, according to Gov. Mike DeWine.

The plume of butyl acrylate will arrive heavily diluted in Greater Cincinnati by Sunday. The plume is near Gallipolis as of this writing. Testing results there show the concentration of vinyl chloride at below three parts per billion, according DeWine. The Centers for Disease Control considers vinyl chloride hazardous at 560 parts per billion.

Some residents are reporting health problems including rashes, coughing up blood and breathing problems, according to the Washington Post, Newsweek and AP. Officials advised them to seek medical help and to notify local health agencies.

“We want that information,” said Regan. “We want to help people.”

A DeWine spokesperson said the illnesses are likely unrelated to the spill, noting it’s the height of cold/flu season and that other environmental factors could be at play. He also said reports of illness are not widespread but added if they become so, the response will evolve accordingly.

The Ohio EPA is in the process of developing a long-term testing plan to monitor any delayed carcinogenic affects.

“This is the emergency phase,” said Vogel speaking to East Palestine residents. “We’re getting the contaminated soil and water off the ground and away from you. We are not going anywhere. The remediation phase is next, and it will take as long as it takes.”

Norfolk Southern’s role

The U.S. EPA last week sent a letter to Norfolk Southern outlining actions it needed to take at the site and detailing how the EPA will hold the company accountable for cleanup costs under statutory authority, Regan said. “We are absolutely going to hold Norfolk Southern accountable. I promise you that.”

Norfolk Southern, the same company working to buy Cincinnati’s municipally owned railway for $1.6 billion, was not in attendance for a Wednesday town hall after backing out at the last minute. The rail giant issued a statement hours before the town hall Wednesday evening citing “the growing physical threat” to its employees and community members stemming from “the increased likelihood of the participation of outside parties.”

Norfolk Southern has faced criticism over delayed disclosure of the crash from Pennsylvania Gov. Josh Shapiro. East Palestine residents gained class-action status for several suits against the company on Wednesday.

The same day, Ohio Attorney General Dave Yost advised Norfolk Southern his office is considering legal action. “The pollution, which continues to contaminate the area around East Palestine, created a nuisance, damage to natural resources and caused environmental harm,” Yost said in a letter to the company.

Sen. Brown wrote a letter to the EPA cosigned by fellow senators J.D. Vance, Robert Casey, Jr. and John Fetterman asking that Norfolk Southern carry out the long-term remediation. Brown said Thursday holding the company accountable means ensuring it follows through on cleanup, testing and more.

He added Norfolk Southern paid out more in stock buybacks and dividends to shareholders last year than it spent investing in its own rail infrastructure. “They need to pay more attention to upkeep,” he said.

An NTSB report about what caused the crash is expected to be released in the coming weeks.

Where’s FEMA?

A FEMA disaster declaration under the Stafford Act provides emergency protective relief and opens up funding for individuals to be made whole after suffering losses, usually property damage in the case of floods and tornados. Governors request the declarations of presidents in a formal statutory process that begins with a FEMA team’s assessment of the impacted area. Presidents can declare disasters unilaterally as well. Disasters can be declared for a list of reasons including public health. The assistance typically doesn’t exceed $5 million and is provided on a 75/25 federal/non-federal cost-sharing basis.

DeWine has been in continuous communication with the White House and FEMA officials, according to his spokesperson. But a FEMA emergency declaration is not forthcoming.

The governor issued a confused statement Thursday morning saying Ohio needs federal support but that FEMA continues to tell him that Ohio “is not eligible for assistance at this time.”

Sen. Brown noted Thursday afternoon Ohio is assuredly eligible. But asked whether the state needs anything from the federal government it can’t get otherwise, Brown replied, “I don’t think there is. Everything the state government has asked for, they are eligible to receive, and I will fight on behalf of Governor DeWine and the state to make sure they get those services.”

DeWine’s spokesperson later clarified the governor has not formally requested a disaster declaration because FEMA officials have told him not to bother, i.e., the derailment does not meet statutory criteria that cannot be waived or adjusted.

A disaster can’t be declared if an alternative means of loss-recovery exists that pays out at least 40 percent of total losses incurred, according to the spokesperson. Norfolk Southern is currently putting those displaced up in hotels and funding their living expenses, and according to FEMA, that clears the bar. FOX19 has reached out to FEMA about that calculation and has yet to hear back.

DeWine’s spokesperson also referenced money, reportedly $1,000 to $2,000, Norfolk Southern is giving out to residents. It remains unclear whether a resident who accepts that money thereby waives their ability to sue Norfolk Southern in a class action, though Brown said Thursday he believed the company was offering the money without a legal waiver.

DeWine’s office is continuing to monitor the incident and will formally request a FEMA designation if significant illness or property loss materializes, according to the spokesperson.

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