EAST PALESTINE — Despite gathering over 100 public comments that criticized the multi-million dollar settlement between the Department of Justice and Norfolk Southern to remedy the impacts of last year’s train derailment and chemical release, the DOJ filed a motion last week asking the court to make the settlement final.

The DOJ filed suit against the railroad on behalf of the U.S. Environmental Protection Agency (EPA) and in May both the EPA and the DOJ announced a settlement valued at over $310 million had been brokered with Norfolk Southern.

The settlement requires Norfolk Southern to pay a $15 million civil penalty to resolve the alleged violations of the Clean Water Act, $25 million for a 20-year community health program that includes medical monitoring for qualified individuals and mental health services for individuals residing in affected counties as well as first responders who worked at the site, $15 million to implement long-term monitoring of groundwater and surface water for a period of 10 years and an additional $15 million to fund a drinking water monitoring fund (both municipal and private wells) for 10 years goes a long way in some areas, it is lacking in others. The medical monitoring includes at least 10 free annual medical monitoring exams — routine physical exams, comprehensive metabolic blood panels, pulmonary function tests, x-rays, and assessment of results — over a 15-year period.

Among the private citizens who spoke out during the public comment portion which was open through August, the Village of East Palestine, East Liverpool City Hospital, Ohio Attorney Dave Yost and Columbiana County Health District also penned comments describing the deal’s deficiencies.

East Liverpool City Hospital (ELCH) noted that screenings identified in the consent degree do not include urinalysis and complete blood count lab work — tests recommended by toxicologists and have been conducted on train derailment victims in the past. ELCH also stated that while the settlement “provides access for medical screening and mental health, there is no current funding structure for long-term health conditions, including the diagnosis and treatment of said health conditions” and that “without designated funding, patients would have to access their personal health insurance, workers compensation, or self-pay.” Another area of concern expressed by ELCH is the absence of a “train derailment registry” that would record data and a list of patients experiencing health effects of the train derailment.

The village’s letter raised the same concerns and said that “the $25 million allocated for the Community Health Program is insufficient to cover the necessary medical monitoring and mental health services over the 15-year period.” The village asked for a “significant increase in funding” for those services as well as a more concise and comprehensive understanding of what actions would be required should integrity of groundwater be compromised, urging ” for clearer accountability measures that ensure Norfolk Southern is fully responsible in the event that any future contamination is discovered.”

The health district’s comment letter argued that “the private drinking water well monitoring program as described in the settlement is underfunded at $15 million and lacks the length of time necessary to adequately monitor groundwater to the satisfaction of the impacted community.”

Health Commissioner Weslsey Vins wrote that amount should be doubled to “$30 million for a minimum of 20 years” and that “residents located in the priority zones need to be specifically identified in the settlement as remaining eligible for private drinking water well sampling.”

Vins’ letter also stated that “the Community Health Program is underfunded and limited in scope” and that urinalysis and a complete blood count medical monitoring is necessary as is a “long-term disease registry, including professional management component.”

Yost, who has been speaking out against the federal settlement since it was first announced, held a town hall meeting with East Palestine residents to discuss his reservations in depth, alluded to that town hall in his formal comment.

“I met with the East Palestine community at their high school auditorium on June 15, 2024. The residents shared their concerns about the water they drink, the garden vegetables they eat and the air they breathe,” Yost wrote. “These concerns are in East Palestine homes and backyards — places where residents should find security and peace, not alarm and dread. Instead, residents live with the fear that medical treatment will not be available to address potential diseases that may take years to develop.”

The demographics of the residents who penned letters and submitted emails ranged from an 83-year-old Navy veteran, who wrote about suffering medical symptoms and described the settlement as unfair, to a 15-year-old suffering from PTSD.

“The derailment not only caused significant environmental damage but also disrupted the lives of many families in East Palestine,” one comment read. “We the residents of East Palestine are dealing with the long-term consequences of exposure to hazardous materials, which include health risks and the potential for lasting environmental contamination. The psychological and economic toll on the community cannot be understated.”

That resident asked that the settlement include among other things comprehensive health monitoring and medical support, more environmental remediation, economic support and transparency and accountability from Norfolk Southern.

The federal government acknowledged that it received “123 comments from individuals, organizations, businesses, and governmental entities” including comments “from far away as Oregon and Canada” in its response that accompanied the motion filed on Oct. 10 in the U.S. District Northern Court but also wrote that no one concern was prioritized among the comments.

The response empathized with those who expressed health concerns and with those who requested the settlement include a condition of free lifetime healthcare but stated that the Clean Water Act nor CERCLA explicitly provide for individualized, personal injury-type remedies.

“The Clean Water Act and CERCLA are primarily focused on remedying environmental harms,” the response stated. “While the Clean Water Act and CERCLA provide broad latitude for identifying and imposing appropriate injunctive relief, it by no means assured that a court would award the healthcare requested by the commenters, and that such an award would be upheld on appeal.”

The response did address nearly every concern raised during the public comment portion but did not add any enhancements. It did suggest that a patient registry, while not required by the settlement, would be established by Norfolk Southern (after conversations with the railroad) by incorporating the concept of public health data tracking into its draft Community Health Program Plan.

Aside from funding environmental and health monitoring programs, the settlement also requires Norfolk Southern to change how it operates to improve rail safety and reduce the chance of future derailments. Many of these improvements were recently recommended by the National Transportation Safety Board (NTSB) in its investigation of the derailment. Improvements include more emergency response training, better monitoring of overheated wheel bearings and safer tank cars.

The settlement awaits final approval from District Judge John R. Adams.

selverd@mojonews.com