Government Accountability Project Sues FEMA, Files EPA Complaint Over East Palestine Chemical Disaster

The Government Accountability Project (GAP) has filed a lawsuit against FEMA to demand the fulfillment of a Freedom of Information Act (FOIA) request about President Joe Biden’s executive order in September 2023 regarding the train derailment and chemical exposure in East Palestine, OH. The FOIA request was originally filed on January 31 and refiled on April 12 with revisions. FEMA has not followed through on the request, which has prompted the lawsuit.

The GAP’s Senior Environmental Officer, Lesley Pacey, said, “President Biden’s Executive Order gave residents hope that the disaster declaration they desperately needed would materialize. Many who want to move can’t afford to and they can’t sell their homes. Residents’ requests went unanswered. Now, nearly two years after the derailment, residents of East Palestine and Pennsylvania still have no answers from FEMA. They are still suffering from seizures, tremors, hair loss, dental caries, headaches, and other symptoms that intensify whenever remediation work is underway.”

The GAP, in its January 31 press release, wrote that a FEMA report regarding East Palestine was supposed to be released weeks before. The GAP is asking for transparency as local residents continue to struggle with health issues nearly two years after the toxic plume engulfed the small town with vinyl chloride and harmful dioxins.

Pacey said community members need relocation and Medicare assistance, which could have been provided if the Unmet Needs report was completed. That report was supposed to be completed and sent to President Biden a year ago, but there still hasn’t been any action or update.

“Residents were not super hopeful that the report would be helpful as FEMA’s James McPherson, who was tasked with writing the report, apparently only spoke with local and state authorities and did not return emails or phone calls to residents who were suffering health impacts, mental distress, and financial ruin,” Pacey told The HighWire. “Many, as you know, lost their jobs and health insurance and have been unable to move out of East Palestine because they can’t afford to leave and cannot sell their homes. Others are living in campers and have lost everything, including their health.”

Pacey said she doesn’t know why the report was never completed, but it seems like a “show attempt to make it look like something close to a disaster declaration might occur, providing residents with the aforementioned kinds of relief.”

Pacey added, “The Biden EPA has been lying to the public and covering up the extent of the contamination from the beginning, much to the detriment of East Palestine and Pennsylvania communities still dealing with all kinds of nightmarish symptoms. Whatever the reason, it is unconscionable for the U.S. government to leave families in East Palestine to suffer. They deserve to know the truth and the details for the report’s delay and ultimate disappearance.”

The HighWire reported last month about comments made by EPA official Mark Durno, who admitted significant mistakes were made by the agency and Norfolk Southern in response to the toxic chemical exposure. The GAP has also written a complaint letter to the EPA’s Inspector General Sean O’Donnell alleging a corporate cover-up with help from the EPA.

In the letter, Pacey said Durno’s comments show that even if data is accurate, it can be “contextualized and portrayed” to “significantly mislead the public and dilute corporate liability.” Pacey referred to the recording of Durno and said, “The recording is smoking gun evidence of abuse of authority and gross mismanagement that have sustained despite a substantial and specific danger to public health.”

The HighWire reported the alleged collusion between the EPA and Norfolk Southern in June while speaking with independent evaluator Scott Smith. Smith recently earned the Whistleblowing Prize from the Blueprint for Free Speech. Smith has repeated several phrases that sum up his opinion on the response to the disaster in East Palestine. He told The HighWire in June, “Basically the EPA is a captured and corrupted agency that is functioning as the public relations arm of Norfolk Southern.”

Smith also talked about cherry-picking testing locations to tell a false narrative of the potential chemicals the residents are still exposed to today. Smith frequently says, “You can’t find what you don’t look for.”

Chemical disasters happen frequently in the United States. The HighWire reported last month that toxic chemical disasters occur every 1.2 days in the U.S. There is a toxic loophole that exempts certain facilities from additional safety precautionary measures because the individual chemicals are generally considered safe. However, the reactive toxicity when these chemicals are combined makes the exposure harmful to nearby residents. This loophole exempted BioLab from additional safety protocols and could have prevented the major chemical disaster in Conyers, GA.

Pacey and the GAP call out the EPA for allowing corporate contractors to conduct safety testing after a chemical disaster impacts a local community. In the recording with an East Palestine resident, Durno states that Norfolk Southern contractors collected data that is technically sound, but the public analysis and presentation of the data is crafted to “reduce their contribution to the liability.”

GAP’s letter states that Durno called the corporate contractors competent in their data collection skills, but they misrepresented the data’s significance to “soften the language and make it more friendly to the client.” Despite Durno’s admission and acknowledgment that the presentation of the data is inaccurate, this is the data that the EPA relied upon when stating there are very low levels or no detections of harmful chemicals.

Durno said the EPA has been sitting on safety testing data in East Palestine that hasn’t been released because the reports need to be fixed and presented unbiasedly. He said the EPA’s science team disagrees with the reports from Norfolk Southern contractors.

The GAP letter states, “Under CERCLA, (Comprehensive Environmental Response, Compensation, and Liability Act), corporate contractors provide the bulk of data about chemical threats. Typically, about 75 percent of environmental sampling data is collected by responsible party contractors, while approximately 25 percent is collected by EPA or EPA contractors for verification/validation purposes. EPA provides verification/validation by taking split or duplicate samples, performing independent sampling, and through data validation procedures.”

The letter also refers to GAP client Scott Smith’s declaration that the EPA reported “non-detect” for “forever chemicals,” despite the EPA contractor data that contained readings 100 times higher than the lab report values.

In the letter, Pacey wrote, “The new evidence reveals that EPA used a two-part strategy to hide public health threats including raising the level used to measure chemical contamination so EPA and manipulating sampling data and/or use elevated reporting limits (RL’s) to declare a Non-Detect – or nonexistent for dangerous chemicals.”

Dioxin levels were found to be 20 times higher by Arcadis, the Norfolk Southern contractor, but were never publicly reported. Smith saw this data hidden on the EPA website a year after the derailment.

The EPA and Arcadis failed to provide the location of the testing samples and other important testing data that would allow independent scientific advisors to evaluate the testing protocols and data.

Pacey told The HighWire, “The system needs to change and I hope this new evidence will result in not only an investigation but also changes to CERCLA regarding the use of corporate contractors in chemically impacted communities.”

The GAP letter concludes by calling the EPA testing protocols unacceptable. As Durno described, the GAP views corporate contractors as having a clear conflict of interest. Furthermore, hiring these contractors requires extra time for the EPA to remove bias from the reports before publicly disclosing the latest environmental safety data. The letter says that residents near the derailment site are still at risk as remediation efforts have caused a “resurgence of symptoms as dramatic as the initial disaster.”

The HighWire reported in September about the $600 million settlement for residents of East Palestine and the controversy surrounding the lawyers who have refused to release the safety data they collected with independent evaluator Stephen Petty. The settlement is currently being appealed.