EPA Letter to Norfolk Southern Admits It Allowed Railroad to Conduct Illegal Burn of Toxic Chemicals Over East Palestine

“We aren’t currently in the position to provide a legal conclusion," EPA previously answered on whether it allowed the railroad to do an open burn—which an ex-EPA official told SC is “very dangerous."

Four days after the catastrophic chemical detonation of five Norfolk Southern rail tankers—filled with 1.1 million pounds of toxic vinyl chloride—over East Palestine, Ohio, an EPA official wrote to Norfolk Southern drastically contradicting the claims Norfolk Southern and the EPA have made for over two years about the safety—and legality—of the chemical detonation.

In a February 10th, 2023 letter, authored by Jason El-Zein, an EPA manager in the Emergency Response Branch, El-Zein notified the railroad giant of its liability for what the EPA official labeled “the open burn off of vinyl chloride.

El-Zein’s acknowledgment that the detonation over East Palestine—the toxic plume of which traveled through Pennsylvania and other states—contradicts what the agency claimed to the public at the time, and since, that Norfolk Southern conducting a “controlled burn” of five vinyl chloride tankers.

It is also at odds with both EPA and state of Ohio’s regulations.

“Straight up against regulations and [was done] with the Ohio EPA on scene,” Sil Caggiano, a hazardous waste specialist who spent 39 years in the Youngstown Ohio fire department, told Status Coup.

Dating back four decades, EPA regulations prohibited the open burning and detonation of hazardous waste due to risks it posed to the environment and nearby people. The agency carved out one exception: where other safe modes of treatment are not possible. To arrive at that determination, however, agencies or companies overseeing an emergency response must evaluate, and then re-evaluate, whether “safe alternative technologies are available to treat their waste explosives.”

There is no evidence Norfolk Southern took these steps.

Exposure to vinyl chloride is linked to increased risks of a rare form of liver cancer along with primary liver cancer, brain and lung cancers, lymphoma, and leukemia, according to the National Cancer Institute. Since the derailment and chemical detonation in February 2023, a large swath of East Palestine, and nearby western Pennsylvania residents, have grown sicker with serious illnesses including cancer (a long list of their ailments is at the bottom of the story).

Despite the EPA’s claims that its testing, largely conducted by Norfolk Southern, detected no chemical contamination above federal regulations, independent testing has found elevated levels of vinyl chloride, dioxins, and other cancer-causing chemicals.

A day after Norfolk Southern’s toxic detonation, James Justice, the EPA’s on-scene coordinator during the initial emergency phase after the derailment and detonation, echoed Norfolk Southern’s claim that the chemical detonation was done as a “controlled burn.” (bold emphasis by me)

”Yes, we have been air monitoring throughout the incident after the operation that took place last night with the controlled burn, we’ve been able to safely move our crews largely within…we’ve been focusing on the air quality within that one-mile evacuation zone.”

Yet, three days later, El-Zein wrote to Norfolk Southern’s deputy general counsel Matt Gernand, acknowledging that Norfolk Southern had in fact conducted a prohibited open burn (bold emphasis by me).

“Areas of contaminated soil and free liquids were observed and potentially covered and/or filled during reconstruction of the rail line including portions of the trench/burn pit that was used for the open burn off of vinyl chloride.”

Besides the legal implications, the distinction between a controlled, versus open burn, makes all the difference in terms of the potential threat to public health, Caggiano explained. As opposed to a controlled burn, an open burn creates a larger, more hazardous, plume of chemicals distributed further out into the atmosphere. He added that Norfolk Southern—with the EPA standing by allowing it—chose to endanger the public in order to save money.

“To do it [extract the vinyl chloride] right would have been extremely expensive,” Caggiano told Status Coup. “They don’t count on the blow back. They didn’t count on people like me.”

Caggiano has previously condemned Norfolk Southern, and the EPA’s, decision to blow up the vinyl chloride tankers, stating Norfolk Southern “nuked a town with chemicals to get a railroad open.”

As Status Coup reported in June 2023, based on exclusive audio we obtained, the EPA’s East Palestine on-scene coordinator at the time, Mark Durno, admitted to concerned residents that Norfolk Southern’s detonation was against the agency’s own regulations.

“What I said was, yes, you could consider that an open burn,” Durno said to residents. “In an emergency situation it is what it is” (clip below).

In a perplexing explanation, Durno added that if the EPA was in charge of the response, they would be exempt from their own regulations against open burn detonations—but Norfolk Southern was not.

“All the open burn regulations would apply but in an emergency situation, we’re [EPA] actually exempt,” Durno said (clip below). “If we were doing the work, we’re actually exempt from those types of regulations because it’s an emergency. Now the company’s not necessarily [exempt] so there could be significant fines and penalties levied based on their actions.”

A former EPA official, who requested anonymity since their current job engages with the agency, told Status Coup that Durno’s admission is important because the agency has been “misleading and lying to the public” about the nature of what they allowed Norfolk Southern to do over East Palestine.

“These different descriptors of the burn have very important legal distinctions,” the ex-EPA official said, stressing that the open burning of chemicals is a “very dangerous practice.”

As East Palestine resident Jami Wallace recently told Status Coup that the inaction from the Biden administration to provide relocation funding, and medical care, for East Palestine residents has extended into the second Trump administration.

The EPA did not respond to Status Coup’s request for comment regarding its February 2023 letter to Norfolk Southern acknowledging the railroad conducted a prohibited open burn. Norfolk Southern also did not respond to request for comment.

In May of 2023, the EPA cited legal reasons for not answering Status Coup on whether the East Palestine detonation was, contrary to the agency’s “controlled burn” claims, in fact an open burn.

“We aren’t currently in the position to provide a legal conclusion responsive to your inquiry,” a spokesperson responded. At the time, a source familiar with the agency’s evasive answer told Status Coup “everybody is lawyering up.”

Both the Pennsylvania Attorney General and Ohio Attorney General’s office have previously failed to respond to Status Coup’s request for comment on whether either office was conducting a criminal investigations into Norfolk Southern’s detonation of five vinyl chloride tankers over East Palestine and western Pennsylvania (in 2023, PA Governor Josh Shapiro sent a criminal referral to the state AG’s office to investigate). Since then, the office has issued no charges nor updated the public on the nature of its investigation.

As Status Coup has reported, East Palestine residents have experienced a disturbing amount of physical and cognitive health issues since the derailment and detonation:

• 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

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