$600M East Palestine Settlement Approved Amid Whistleblower Revelations of EPA and Norfolk Southern Cover-Up

An expert witness retained by the plaintiffs in the East Palestine class-action lawsuit has signed a declaration to say independent testing evaluator Scott Smith’s testing results are valid and credible. Stephen Petty was retained by the attorneys that represent the citizens of East Palestine to conduct testing and serve as an expert witness in the case. The attorneys have not released the testing data, which has caused speculation that they are not working on behalf of the residents who are still experiencing significant health effects from the aftermath of the chemical burn in February 2023.

This information came out just before the judge approved the $600 million class-action settlement, which many consider far too low for the residents dealing with ongoing medical issues. Judge Benita Y. Pearson called the settlement “fair, reasonable, and adequate,” and approved $162 million for the attorneys on the case.

Petty has been unable to discuss his own testing results because he signed a non-disclosure agreement. He has now officially signed a declaration to Lesley Pacey of the Government Accountability Project to say that Smith’s testing data is accurate and reliable. Petty’s statement said “I declare under penalty and perjury that the following is true and correct.”

Petty’s statement continued, “I am speaking out today to make a record of my support for independent testing expert and Government Accountability Project whistleblower Scott Smith’s work, who found elevated levels of dioxins, semi volatile organic compounds, and PAHs during multiple rounds of testing in and around East Palestine, Ohio following the train derailment, subsequent burns and open detonation of five trian cars containing vinyl chloride. Following my initial review of Smith’s environmental data and testing methodologies, I have no reasons to question the validity of his environmental testing and sampling work he completed in and around East Palestine, Ohio.”

The HighWire spoke with Smith in June and again in August following the town hall video where Dr. Arch Chip Carson stated that there would be no long term health impacts. Dr. Carson was identified as a “completely independent third party.” He also has a resume that includes Dow Chemical, Exxon Mobil, Chevron, and Enbridge. Speculation ensued regarding Dr. Carson’s involvement when the plaintiffs’ lawyers specifically hired Stephen Petty to conduct independent testing. The statements made by Dr. Carson minimize health impacts from the chemical exposure and are more supportive of the defendant, which is Norfolk Southern.

Petty’s declaration stated, “I also was motivated to speak out at this time because toxicologist Dr. Arch Chip Carson, who was hired by platiniffs’ attorneys, told class members in a video shown at a town hall on August 1, 2024 that they can expect no long term health impacts due to the derailment, subsequent fires, and release of multiple chemicals in East Palestine. He was basically saying that there was really nothing to see there. My opinion, based on my long-time knowledge as an exposure expert on hundreds of cases, and a review of publically available data and the lack of supporting analyses he provided, is that his opinions were in general, at best speculation, and at worst simply incorrect.”

The Government Accountability Project submitted a supplemental Administration Procedures Act petition calling upon the EPA to warn residents of the potential harms in the community. The petition includes evidence and statements from four whistleblowers; Scott Smith, Stephen Petty, George Thompson, and an anonymous whistleblower. The HighWire report from August discussed the resident town hall held by independent YouTube channel Status Coup with toxicologist George Thompson and his rebuke of the statements made by Dr. Carson.

The petition includes a new statement from Smith about the EPA intentionally misleading the public about the safety of the environment in East Palestine. Smith said, “I recently, on August 19, 2024, August 26, 2024, and September 11, 2024, uncovered new evidence that the EPA removed and/or altered and/or underreported and/or withheld data on Sulphur Run Creek contamination and other soil and/or sediment data immediately following the derailment on or about February 15, 2023, through March 1, 2023, in East Palestine, Ohio, ultimately providing fraudulent environmental sampling data and misleading the public and the courts about the true extent of contamination in East Palestine, Ohio. This new evidence is in the possession of the EPA but not publicly disclosed on the EPA East Palestine website and, to the best of my knowledge, has never been discussed with or revealed to the affected residents of East Palestine and the public.”

The petition continues, “The EPA withheld its own data exposing sharp levels in contamination concurrent with its high-pressure sprays to remediate creeks and streams, which critics have said was counterproductive. EPA knew that it was. Its records indicate that during the April-July 2023 remediation, contamination levels increased up to 20 times or 1,925 percent higher during the remediation. The concealed findings were consistent with Mr. Smith’s own, from samples taken at approximately the same locations. (Id., time period of April-May 2023 to July-August of 2023).”

The GAP petition says that the EPA told the community that garden crops were safe to eat without doing any testing. The letter refers to high dioxin levels in garlic that was tested by Smith in February of 2024, which was reported by The HighWire in June. The petition states, “Specifically, dioxin Toxic Equivalents (TEQs) as high as 440 parts per trillion (ppt) have been found in garlic samples from residential gardens. This TEQ is more than 12 times higher than the State of Ohio soil cleanup remediation level of 35.8 ppt.”

The GAP refers to the EPA’s “duty to warn” and said the agency has failed to protect the citizens of East Palestine. In addition to the garden crops, the agency quelled any concerns regarding consuming wild game and fish harvested locally. On the EPA website dedicated to the East Palestine train derailment, the agency states, “There is no evidence to indicate there are any human health risks resulting from the train derailment that would limit eating wild game.” The GAP said, “This flagrant disregard for public health and safety is unacceptable.”

The GAP claims that the EPA has violated the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA) by not independently testing garden produce and animals. The petition condemns the EPA for failing to respond to a petition sent in June.

The petition also claims that the testing conducted by Arcadis, a contractor hired by Norolk Southern, is unscientific according to dioxin experts. The petition asks the EPA to properly warn residents of potential harms associated with consuming garden produce, wild game, and wild fish. The GAP also requests that the EPA “conduct comprehensive, ongoing independent testing of soil and garden produce” and “implement remediation measures to mitigate health risks.”

Scott Smith said he has been smeared and defamed by people representing the EPA and Norfolk Southern. He said the plaintiffs’ attorneys have also joined in since the settlement was announced in April. Some of these individuals have said Smith does not have the scientific credentials to conduct testing properly. Stephen Petty, in his declaration, defended Smith’s credentials and testing protocols.

“I do not see any particular difference between what he did and what others do based on my 40+ years of experience in this area,” Petty said. “With respect to the criticism that he is not a scientist, I think that is rich coming from people who are lawyers who are, to my knowledge, not scientists themselves. The fact of the matter is that Mr. Smith has 25 patents. The process of developing patent claims requires one to use the scientific method and requires one to have quite a bit of a science background in order have a patent with commercially viable claims issue.”