A $600 million settlement gets the thumbs-up while derailment nightmares continue

By 10 a.m. Wednesday, every seat in the third-floor federal courtroom in Youngstown, Ohio, was occupied by someone in a suit, so the cluster of people haunted by thoughts that their bodies are contaminated with toxic chemicals crowded into an overflow room down the hall to watch the proceedings on a video feed.

Carly Tunno was there, sitting in a row of chairs near the back of the room. She wore a black head covering because her hair has been falling out. She’s also tired all the time. Unusual for her. She thinks about that black cloud of toxic particles that rose over the sky after a train disaster in East Palestine 18 months ago. She lives 7 miles from the town. Her scalp began shedding hair a month later.

Tom Young sat in the front row. He wore a T-shirt emblazoned with a drawing of an emaciated rodent with its eyes askew. Purple goo drips from its nose. Clearly this is a sick cartoon animal. “Darlington PA Lab Rat,” the T-shirt reads, a nod to the derailment and the Pennsylvania town in which he lives. “Courtesy Norfolk Southern, EPA & Government.” Tom sat with his arms crossed and stared at the TV screen. He looked perturbed. He rolled his eyes when attorneys said things such as, “The community wants this settlement.”

Tom didn’t want the settlement, nor did Carly.  Nor did the 18 or so other Ohio and Pennsylvania derailment-impacted residents who packed into the room. They still had so many questions. What about the brain fog, the bloody noses, the rashes, the headaches and fatigue, the unexplained fevers? It goes on and on: diarrhea, bloody stools. What about the issue people refer to as “female problems” — periods that never stop or are delayed? Before Norfolk Southern and the lawyers and the media go their merry way and declare East Palestine’s problems a thing of the past, the people sitting in the overflow room wanted answers.

The only opinion that mattered, however, was that of federal Judge Benita Pearson, who sat behind an impressive judge’s bench made of dark wood and flanked by American flags. At least it looked impressive on the TV screen. The fate of a $600 million class action settlement in the Norfolk Southern derailment rested in her hands.

How would she rule? Less than 30 minutes into the hearing, Tunno had it figured out. She listened as attorney Dan Abraham, representing 35 residents opposed to the settlement, argued it was too soon for approval. A report by a certified industrial hygienist and chemical engineer named Stephen Petty could shed new light on dangers posed by chemicals released during the derailment, Abraham said. That report, produced for the plaintiffs — meaning affected residents who’d signed up for the class action lawsuit — was being kept under wraps.

Pearson wasn’t buying it. She told Abraham to wrap it up.

Tunno leaned forward, her face in her hands. “She’s already made up her mind,” Tunno said. The mood in the room grew as gloomy as the dark gray sky outside. Today would reveal no answers.

Soon it was time for the plaintiffs’ attorneys to speak. They had discovered one word they truly adored. And it was extraordinary. The $600 million was an extraordinary result, they said. Participation by community members was extraordinary. They gave a number: 92.94% had opted to take part in the settlement. “That’s extraordinary by any measure,” one said.

The settlement had “overwhelming support of the community,” the attorney added.

Those in the overflow room replied, almost in unison, “No it doesn’t.”

At 1:04 p.m., Pearson declared the settlement “fair, reasonable and adequate” and gave it a thumbs-up. “My work here is done,” she said. Like that, it was over.

Jami Wallace, one resident who’d actually made it into the courtroom, yelled out, “Those attorneys lied to people.”

Pearson snapped at court officers: “One more word from her, put her on the pavement.”

***

Half an hour later, Wallace was unapologetic. “Well, yeah, I had to yell out because they wouldn’t listen to any of us,” she said.

That’s a problem for the group of people who continue to speak out about the derailment and its aftermath. Nobody listens. Not the attorneys, not the EPA, certainly not Norfolk Southern. Nobody listens when they talk about their symptoms: Tunny’s hair loss, for example, and her fatigue, as well as Young’s recurring bloody noses (he has hundreds of pictures on his cellphone; not for the squeamish) and his wife’s loss of vision in her right eye. Her doctors can’t figure it out.

After the hearing, several people who’d sat in the overflow room gathered on the sidewalk in front of the courthouse and told a gathering of reporters why they were concerned. Ashley McCollum, who’s now living in a camper in Salem, Ohio, because visits to her East Palestine home make her sick, said she checked with local funeral homes and found 50 people had died in and around East Palestine in the six-month period after the derailment. That’s higher than usual. During a similar time period in the COVID-19 years, there were 13 to 15 deaths, she said.

We’re reporting McCollum’s statement, at the risk of offending a plaintiff attorney, who accused the press of “fear mongering.” The attorneys will collect about $162 million for their efforts of less than 18 months.

Which brings us to this point: Residents claim the settlement was more about fat paychecks for lawyers and less about helping residents of a working-class community receive fair compensation for a human-made disaster with human damage that’s still in dispute.

“They wanted to get this over with; they wanted to shut us up,” Wallace said. “As far as I’m concerned, those plaintiffs’ attorneys did not work for the people, they worked for their own pockets. They couldn’t take the time to talk to us as part of the objections. Did you hear from any of the residents?”

How much will people who “opted in” to the class action collect? Zsuzsa Gyenes isn’t certain. She’s not been told an amount. She’s knows it won’t be enough. She lost her home, her job. Gyenes lived a mile from the crash site and moved to a Cranberry hotel room after the disaster, and the cost of well over a year of hotel charges will be deducted from her amount, she said. Gyenes never went back to her East Palestine home. The place made her ill, even when she returned for short visits to get mail. Plus, she was concerned about her then 9-year-old son, who began vomiting the night the crash. Now the family lives in Hopewell, Pennsylvania.

A reporter asked her, “Why did you decide to take part in the settlement if you know it’s not enough?”

Yes, she said. “What were my options?” she said. “I was homeless, I was sick, my son was sick, I lost my job.”

Scott Smith stood several feet away and expressed no surprise at the outcome. Smith is an independent testing expert. He started looking for contaminants in East Palestine a few weeks after the derailment and found elevated levels of dioxins.

The EPA says he’s not a scientist. He’s not, but Smith has been testing at chemical disaster sites for years, and he sends his samples to a lab the EPA says is reputable. Petty, the industrial hygienist and chemical engineer, vouched for Smith in a declaration, noting that Smith’s quality control and methodology met professional standards. In fact, Petty states his support for Smith’s findings that show significant environmental contamination.

Smith’s continued testing and trips to the town (27, by his count) have endeared him to a number of residents suspicious of tests conducted by Norfolk Southern. To them, Smith is an ally.

“This illustrates why, beyond East Palestine, every single American citizen needs to realize this: The system is not fair,” Smith said. “The EPA is a captured agency. Captured by Norfolk Southern.”

What he’s claiming is that the EPA is more concerned about the economic interests of Norfolk Southern than the interests of residents. It’s a big problem, he said.

“It’s the system; it’s not the judges and whoever appointed them and their political party. The system favors the privileged elite getting the money at the expense of damaged citizens. This is why every single community that sees this needs to realize, this could be your community next.”

Smith then turned the press’s attention to toxicologist George Thompson, who’d traveled from his New Jersey home to attend the hearing. Thompson’s been researching the derailment and has some alarming findings that we wrote about last week. He’s staying in the East Palestine area for a few days so he can present his findings in detail to residents on Saturday. He gave a brief synopsis to reporters on Wednesday.

“None of this information was considered prior to this lawsuit,” he said. “It was all ignored. I offered to give this information free of charge to the attorneys managing the class action lawsuit. They did not take me up on the offer.”

He voiced one concern in particular: What happens to farmland and farm animals when a stew of toxic chemicals descends upon the land?

“Now, the animals eat the grass,” he said. “It gets into the animals, and we eat the animals. And then it gets in our bodies and stays there seven to 15 years. None of that was taken into consideration during the hearing. I’ve heard no comments where anybody is concerned about the food chain.”

Young, the Darlington man with the lab rat T-shirt, stood nearby, holding a bag containing three apples he’d harvested from trees on his 22 acres earlier in the day. He held them aloft, offering to share one with the judge or anyone else in earshot. No one took him up on the offer.

“I wouldn’t eat it unless you test it,” Thompson said.

***

Let’s go back a few days, to Monday. Christina Siceloff is standing ankle deep in the depleted waters of Sulfur Run while a train rumbles past several feet away. The train’s shrieking horn doesn’t bother her, but a loud metallic banging noise, perhaps caused by something shifting as the cars pass, causes her to flinch.

“I don’t like that noise,” she says.

Nightmares of derailments invade her sleep. She avoids standing on the front porch of her home in South Beaver, Pennsylvania, 6 miles from the derailment, because she can still picture fire in the night sky.

She has been diagnosed with PTSD and prescribed pills for depression, anxiety and nightmares. All the while, there’s the overriding concern of the chemicals that spilled and then were burned off during and after the derailment. Are they lingering now, deep in her body, cultivating illnesses that she’ll learn about in five years, or 20? And what about her 5-year-old son?

She yearns for closure. Will she ever find it? She suspected Wednesday’s hearing on the $600 million settlement would be a pivotal event. It had been on her mind all weekend.

“A lot of us here already feel forgotten,” she said. “And so for a lot of people, the settlement is the end, it’s the closure people want.” But for those who’ve been pushing back against claims by Norfolk Southern and the EPA that the danger has passed? 

“It’s not the end for us,” she said. “It’s something we’re always going to be worried about.”

She poked a small shovel into the creek bottom. She is part of a small team of people who for months have been monitoring East Palestine’s creeks for pollutants. She’s posted dozens of TikTok videos showing chemical rainbow sheens floating on the water surface. She sent her pictures and videos to an attorney involved in the class action settlement, but nothing came of it.

“I asked them several times if they wanted more information, and they wouldn’t take it,” she said. “So how can you make a decision about what is the best thing for everyone if you don’t know the whole story?”

Gathering her visual report has come at a price. After spending time in the creeks, her legs trembled and tingled, her lips and tongue went numb, she experienced “brain fog.”

“Was it all worth it?” she now asks. “A lot of people in town have bullied us over this. That makes it hard. Most people don’t get why we did what we did. You don’t want to expose yourself to toxic chemicals. I’ve wondered, ‘Why did I do it?’ I did it for the people, for my kid and for the environment. But some people think we only did it for exposure, for the media attention.”

Gratitude does come her way. It happened several months after the derailment, when a friend invited her and other members of the creek monitoring team to a church service. At one point, several members of the congregation gathered around Siceloff and her colleagues and prayed for them. “It was very moving,” she said. “You could feel the emotion. People cared.”

“They were looking to us for answers, looking for help. But we’re all in the same boat. We have no answers. We just want to help as much as we can, and we appreciated the prayers. We felt very grateful for these people who cared. We’ve seen the worst of humanity, and we’ve seen the best.”

She learned of the judge’s decision on Wednesday afternoon. News travels fast in a small community.

“It doesn’t surprise me,” she said as she sat in her car and waited to pick up her son from school. “Now the railroad and the lawyers can go away like they always wanted to. For us, though, for a lot of us, we have to live with this. It’s just a continuance of the nightmare. We’re going to live with it forever.”