EPAs, DeWine sued over claims of safety after East Palestine derailment
A conservative non-profit organization that has taken on issues such as vaccine mandates in the past is now suing the federal and state Environmental Protection Agencies, and Ohio Governor Mike DeWine, claiming they failed to take adequate measures to protect the public from the toxic chemical spill in east Palestine.
A complaint was filed Monday in federal court by We the Patriots USA, Inc. of Caldwell, Idaho and East Palestine resident Courtney Fish, whose home is 100 yards from the site of the February 3 derailment, fire, and chemical spill.
Named as defendants are the U.S. EPA, its director Michael Regan, the Ohio EPA and director Anne Vogel, and Ohio Governor Mike DeWine.
Describing itself as dedicated to promoting constitutional rights, and environmental safety, We the Patriots alleges in the lawsuit that the EPA has committed acts that have placed people in danger of violating their 14th amendment rights to life, liberty, or property.
Unlike the more than dozen previously filed class-action lawsuits seeking damages from Norfolk Southern Railroad, this suit names the EPAs as defendants and asks the court to find the agencies engaged in a state-created danger to the community, and order that the agencies begin conducting what Patriots USA says is “industry standard occupational contaminant testing”.
The complaint also seeks an injunction that would bar the EPA from “providing the residents of East Palestine, Ohio and the surrounding areas with false assurances that the air and water quality in their communities is safe until such time as it is shown to be safe”.
The lawsuit alleges that some residents around the derailment were given as little as five minutes notice that emergency crews would be blowing up several rail cars and conducting controlled burns of their chemicals.
The complaint alleges that pollution from the controlled burn encompassed an area at least 30 miles around the derailment site and affected both Ohio and Pennsylvania residents.
The derailment and explosion released approximately 1,000,000 pounds of vinyl chloride in the atmosphere, according to the suit, which also claims that chemicals made their way into bodies of water and local water sources.
Four days after the derailment both EPAs informed the public that they might smell chemical odors, but that it was no cause for concern because the released contaminants had low odor thresholds. In other words, a person could smell them before they posed a serious health risk, according to the suit.
“This statement was blatantly inaccurate and was designed to do nothing more than to deal with burgeoning public and political pressure,” writes Cuyahoga Falls, Ohio Attorney Eric McDaniel in the complaint which sites a New York Times report that air monitoring teams “quickly turned tail and ran” when they smelled chemicals during a Valentine’s Day inspection.
Residents returning to their homes began to report rashes, sore throats, nausea, and headaches within 30 minutes of returning home on February 10, says the lawsuit.
Claiming that the EPA brushed off those reports, Patriots USA says the government’s air testing was inadequate.
Both EPAs discontinued phosgene and hydrogen chloride community air monitoring on February 14, but continued 24-hour community air monitoring for other chemicals, says the lawsuit.
“On February 16, 2023, Defendant Regan arrived in East Palestine, ostensibly to meet with local officials about the response to the derailment. The real purpose of his visit became clear though when he and Defendant DeWine made a mockery of Ohio citizens by ceremoniously toasting a homeowner with water from her tap,” the lawsuit alleges.
The lawsuit is critical of what it claims to be the EPA’s use of real time air monitoring and surface sampling through Photoionization Detectors (PID), which according to the complaint gives instantaneous readings that measure the exposure of many chemicals collectively rather than by specific contaminants.
Claiming that PIDs are inadequate in the face of an environmental event such as the East Palestine derailment, each specific contaminant carries what is known as a exposure limit or a level at which they become hazardous to humans.
We the Patriots USA says in their suit that in occupational and emergency settings where the spilled and burned off chemicals are present, such as the East Palestine derailment, the proper way to monitor air quality for specific contaminants is to conduct personal air sampling over an 8-hour period known as a Time Weighted Average.
The suit also criticizes the EPAs for allegedly only testing water surfaces in spite of knowledge that the most accurate data and the most critical contaminants are found in sediment because residual hydrocarbons settle there.
Claiming that the EPAs rushed to “minimize the political fallout of the derailment and deflect public pressure,” the agencies downplayed the effects of the controlled burn, alleging that it may have produced carcinogenic dioxins which Patriots USA says can linger in the environment.
“The EPAs’ testing is a delicately staged farce or a stunning display of incompetence,” writes attorney McDaniel. “Sadly, if the Court does not intervene now, those reports may be for far more serious afflictions such as cancer in future years – all caused by the Defendants placing politics over public safety”
The EPAs, their directors, or Governor DeWine have yet to file a response to the lawsuit.