EPA Backtracks on East Palestine Claims, Refuses to Answer Whether Norfolk Southern Performed Prohibited 'Open Burn' of Toxic Vinyl Chloride Train Cars

"Everybody is lawyering up," source familiar with EPA's reaction tells SC. The agency echoed NS' "controlled burn" narrative for months—but now says it can't currently "provide a legal conclusion."

Three and a half months after Norfolk Southern’s train derailment in East Palestine Ohio sickened residents and left the small-village of 4,700 reeling, there’s growing indication that the EPA misled residents about the nature, and dangers of, the post-derailment detonation of five Norfolk Southern train cars carrying highly toxic and carcinogenic vinyl chloride over East Palestine. The toxic gas is linked to higher rates of liver and lung cancer along with liver disease, miscarriage, and neurological problems.

On February 6, three days after 38 of 150 train cars derailed, Norfolk Southern warned that five cars of vinyl chloride were at risk of an imminent, uncontrolled explosion that could endanger the lives of nearby residents. After consulting with federal and Ohio EPA officials, Ohio Governor Mike DeWine, Pennsylvania Governor Josh Shapiro, and East Palestine fire chief Keith Drabick, Norfolk Southern claimed the fire chief decided to drain the vinyl chloride cars into a ditch and then set it on fire (EPA officials casted doubt on the fire chief deciding). Norfolk Southern presented this as a “controlled burn.”

The day after the so-called “controlled burn,” an EPA official echoed the railroad company’s narrative.

“We have been air monitoring throughout the incident and after the operation that took place by Norfolk Southern last night—with the controlled burn—we’ve been able to safely move our crews largely within, as Peggy indicates, we’ve been focusing largely on the air quality within that one-mile evacuation zone,” James Justice, the EPA’s on-scene coordinator, said at a press conference on February 7th after Norfolk Southern’s Scott Deutsch provided an update (clip below).

In the ensuing weeks and months, the EPA continued to mimic Norfolk Southern’s “controlled burn” narrative. The lockstep messaging is important considering that the alternative — an open burning or open detonation—was prohibited by the federal agency four decades ago due to the serious risks it posed to human health and the environment. But nearly four months later, the EPA is now declining to stand by the claim.

“We aren’t currently in the position to provide a legal conclusion responsive to your inquiry,” an EPA spokesperson told Status Coup when asked if the detonation performed on February 6th meets its definition of an “open burn” as defined by its own regulations against open burning/open detonation.

"Everybody is lawyering up,” a source familiar with the EPA’s response to the East Palestine disaster told Status Coup about the agency declining to answer whether the railroad company’s process was, in fact, an open burn detonation on the five vinyl chloride cars.

“It was an open burn— with no pollution controls,” Judith Enck, former EPA administrator for Region 2, told Status Coup, insisting that the EPA and Norfolk Southern’s descriptions of the detonation aren’t credible. “We have film of what happened. This was unprecedented.”

Stephen Lester, a toxicologist whose insistence that the EPA test for dioxins following the derailment helped force the agency’s hand to do so, said the detonation was the opposite of controlled.

“It was an intentional open burn whether EPA is willing to call it that or not,” Lester, the science director of the Center for Health, Environment & Justice, told Status Coup. “It was never ‘controlled’ no matter what anyone says.”

Lester challenged the EPA’s original “controlled burn” messaging by invoking a pioneer of the modern environmental movement. “Barry Commoner referred to this as ‘linguistic detoxification,’” he said, noting the phrase the renowned cellular biologist coined in reference to government agencies declaring toxic messes cleaned up—rather than actually cleaning them up.

He also warned of the public health threat that an open burn detonation posed to the residents of East Palestine and nearby parts of Ohio and Pennsylvania. “The intentional open burn never should have happened. The health and well-being of the people of East Palestine was sacrificed for the convenience and profits of Norfolk Southern.”

Erin Brockovich, who has spoken to residents and helped connect them with lawyers in her two trips to East Palestine, told Status Coup it’s a “no brainer” that the detonation was a prohibited open burn.

“Careless, thoughtless, and it screams what are you hiding? Did I mention stupid?” she said.

Since the derailment and so-called controlled burn, residents Status Coup has interviewed and spoken to have been experiencing an array of concerning physical, cognitive, and mental health issues:

• Dizziness

• Nausea

• Bloody noses

• Headaches

• Sore throat

• Chest pains

• Burning eyes

• Nose burning

• Numb lips and tongue

• Diarrhea

• Fatigue

• Rashes

• Sinus infections

• Numbness in back of neck

• Chloracne

• Chemical taste in mouth

• Irregular menstrual cycles in women

• Forgetfulness

• Confusion

• Increased anxiety

Beyond this, a half dozen residents have shared with Status Coup results of their urine tests indicating elevated levels of exposure to vinyl chloride, indicating ongoing exposure to the carcinogen well beyond the initial February derailment.

As previously reported, seven CDC officials got sick investigating the derailment days after it happen. Status Coup has also spoken with first responder firefighters, who requested anonymity for fear of reprisal, that shared they and fellow first responders have suffered from health ailments due to the chemicals they were exposed to fighting the initial fire.

Another former EPA official, who requested anonymity due to the nature of their current employer’s relationship with the EPA, told Status Coup the agency is trying to dodge potential incrimination.

“The definition was written by the EPA and is very straight forward. The EPA has probably cited its definition of ‘open burn’ hundreds of times when taking enforcement actions against polluters for the past 40+ years. By refusing to answer a simple question about a dangerous environmental practice that EPA has banned since 1980, EPA is essentially ‘pleading the 5th Amendment’ and refusing to incriminate itself.  What this means is that the EPA most likely realizes that the vent and burn conducted on February 6, 2023 clearly meets their longstanding definition of an "open burn" as defined in their own regulations.” They must have thought we (the public/concerned parties) were too stupid to recognize that the so-called ‘controlled release’ clearly met the definition of an ‘open burn’ under EPA regulations.  I would not have a problem if they came out and stated that an open burn/open detonation was conducted because there were no safe alternatives available given the time constraints.  During an emergency action, the emergency responders should get the benefit of the doubt.  However, if EPA publicly stated that they were conducting an allowable open burn, they would have been bound by additional requirements such as monitoring for combustion byproducts such as dioxins.  Apparently, this was not done.

The official also went on to address Ohio EPA’s regulations on open burning.

Ohio law/regulations recognize the dangers of open burning.  They warn people that even the open burning of nonhazardous waste, such as household trash, can create very toxic compounds including dioxins, particulate matter, sulfur dioxide, lead, and mercury.  The Ohio EPA also warns that exposure to these products of open burning can also result in serious health problems including: asthma, respiratory illnesses, nervous system damage, kidney and liver damage, and reproductive or developmental disorders.  

The EPA recently distanced itself from the so-called “control burn” decision, despite its own officials having had referred to it as such, stating the agency wasn’t consulted (more on that to come in an upcoming part two of this report).

When Status Coup repeatedly asked the EPA about the contradiction of it referring to the process as a “controlled burn” it wasn’t consulted on— but now refusing to answer whether it was in fact an open burn—the agency didn’t answer.

Under the EPA’s regulations, open burning detonation is prohibited unless there is no safer alternative. As part of the regulation, a rigorous process must be undertaken to evaluate safer alternatives, and then re-evaluate, before determining no safe alternative exists. There is no indication this occurred in the two-and-a-half days between the Norfolk Southern derailment on the evening of February 3 and the initiation of the detonation in the afternoon on Monday, February 6.

In 2019, the EPA and the National Academies of Sciences, Engineering, and Medicine (NASEM) published separate reports that list a variety of safe alternatives to open burning of many waste explosives.

As outlined in a June 7th, 2022 EPA memo on the subject of “Open Burning and Open Detonation (OB/OD) of Waste Explosives Under the Resource Conservation and Recovery Act (RCRA),” in 1980, the EPA banned the open burning of toxic waste because the practice is inherently dangerous to human health and the environment. Seven years later, in 1987, EPA reviewed the science behind its initial ban and further strengthened the regulation against the open burning of nonexplosive waste because it couldn’t be carried out in a manner that protected “human health and the environment.”

Norfolk Southern did not respond to Status Coup’s multiple request for comment on the EPA’s refusal to answer whether the the railroad had carried out a prohibited open burn detonation that jeopardized the health of East Palestine and other nearby residents.

Last week, residents belonging to the “Unity Council for the East Palestine derailment Community Oversight subcommittee” held a meeting and issued demands for more aggressive relief.

Some of those demands included that Governor DeWine declare East Palestine a major disaster site in order to trigger more federal resources. Residents are also demanding federally-organized relocation, temporary or permanent, for any residents who want to leave East Palestine (funded by Norfolk Southern). Other demands include independent testing on air, water, and soil for at least 30 years as well as independent testing of residents’ homes.

Residents also demanded 30-year testing of their blood and urine.

“People want to believe that everything is fine...this was the biggest catastrophic disaster in the history of the United States and there's people in town who act like there's a magic fairy who cleaned it all up," East Palestine resident Stella Gamble told Status Coup’s Louis DeAngelis.

Status Coup will continue investigating and uncovering what the national media COVERS UP. We would like to do MORE ON-THE-GROUND coverage in East Palestine. We don’t rely on corporate money or high-dollar ad placements, we rely on viewer support. You can gain access to exclusive content and help us fund this reporting today by BECOMING A MEMBER for as low as $5 a month.