New East Palestine derailment lawsuit targets EPA, DeWine over water, air concerns

Benjamin Duer, The Repository
·3 min read
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EPA administrator Michael Regan toasts a glass of tap water with Gov. Mike DeWine and U.S. Rep. Bill Johnson as he visits the home of East Palestine resident Carolyn Brown, 79. First Lady Fran DeWine also made the visit. Work continues to clean up the vinyl chloride chemical spill from the Norfolk Southern train derailment on Feb. 3.
EPA administrator Michael Regan toasts a glass of tap water with Gov. Mike DeWine and U.S. Rep. Bill Johnson as he visits the home of East Palestine resident Carolyn Brown, 79. First Lady Fran DeWine also made the visit. Work continues to clean up the vinyl chloride chemical spill from the Norfolk Southern train derailment on Feb. 3.
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A new federal lawsuit claims federal and state officials gave East Palestine residents false assurances over air and water quality after a train derailed in the Columbiana County town on Feb. 3.

The suit, filed Monday in the U.S. District Court's Northern District of Ohio, targets the U.S. Environmental Protection Agency and its administrator Michael Regan, Ohio EPA Director Anne M. Vogel and Ohio Gov. Mike DeWine.

Attorneys Cameron Atkinson and Eric McDaniel, representing We The Patriots USA Inc. and East Palestine resident Courtney Fish, claim the EPA and DeWine have downplayed air and water quality concerns and violated the 14th Amendment that Atkinson said gives "people a substantive process right to life, liberty, and property."

We The Patriots USA is a nonprofit public interest group based in Caldwell, Idaho, that fights cases they believe violate constitutional and individual freedoms. Fish, who also goes by the name Courtney Miller, lives 100 yards from where the trail derailed.

ODNR:East Palestine train derailment killed roughly 40,000 fish

Gov. Mike DeWine stops to talk to East Palestine resident Rachel Jackson, who expressed concern for the safety of her kids and pets.
Gov. Mike DeWine stops to talk to East Palestine resident Rachel Jackson, who expressed concern for the safety of her kids and pets.

Five of the derailed train cars contained vinyl chloride, a colorless gas, used to make hard plastic resin and has been associated with higher risks for liver cancer and other cancers. A controlled chemical release was done on Feb. 6, forcing evacuations.

The U.S. EPA has identified four other substances that leaked into the air, water and soil during the derailment: butyl acrylate, ethylhexyl acrylate, ethylene glycol monobutyl ether and isobutylene.

The lawsuit claims the EPA tests were "seriously flawed" before residents returned home from evacuations. It also claims Regan and DeWine "made a mockery of Ohio citizens by ceremoniously toasting a homeowner with water from her tap."

At least 16 lawsuits have been filed since the crash.

Another lawsuit:Norfolk Southern released 1.1 million pounds of vinyl chloride into air

How the We The Patriots USA lawsuit is different

What makes this lawsuit different from the others is it targets government agencies and officials, not Norfolk Southern.

Atkinson, in an email, wrote that they chose to file against the government because there were already numerous lawsuits against the rail company.

"Bottom line: The people of Ohio and Pennsylvania deserve better, and we’re here to do our best to make sure that they’re not being used as pawns on a political chessboard," he said.

DeWine's office rejected the claims.

"While we generally do not comment on pending litigation, our office strongly disagrees with the narrative in this lawsuit," DeWine's press secretary Dan Tierney said in an email response.

Ohio EPA officials declined comment. U.S. EPA could not be reached for comment.

Atkinson said the EPA, as well as the Occupational Safety and Health Administration, have strict guidelines on how to measure human exposure to carcinogenic materials, such as vinyl chloride, and any byproducts in an industrial environment. Those guidelines weren't followed, he said.

"Instead of applying the same testing and protocols here as they should have, they used generalized air and water testing, which are functionally useless when it comes to assessing this properly," Atkinson wrote in an email. "They then told Ohio residents that it was safe to go home."

As cleanup continues on Saturday, Feb. 25, 2023, a train rolls past the site of the East Palestine, Ohio Norfolk Southern train derailment that released hazardous chemicals into the town's ground and water. Norfolk Southern said that 15,000 pounds of contaminated soil and 1.1 million gallons of contaminated water excavated from the derailment site will be transported to landfills and disposal facilities designed "to accept it safely in accordance with state and federal regulations."

Read the entire lawsuit here:

Reach Benjamin Duer at 330-580-8567 or ben.duer@cantonrep.com.

Follow on Twitter @bduerREP

This article originally appeared on The Repository: EPA, Gov. DeWine sued over East Palestine train derailment