Among those receiving denial letters for personal injury damages — compensation for people who lived or worked within 10 miles of the derailment for “assumed chemical exposure” — were first responders called to extinguish the burning wreckage. 

Jen Payne, a member of the Berlin Township Volunteer Fire Department, was one of about 400 first responders from 50 different departments who rushed to the fiery scene, unaware that spilled chemicals were fueling the flames. The fire proved so toxic that, according to Payne, the gear her department used that night “had to be put out of service because its integrity had immediately deteriorated” and the tires on her crew’s fire truck had to be replaced. Berlin Township wasn’t the exception. Many responding departments and municipalities reported ruined or damaged equipment. Both of New Waterford’s ambulances required major work to remedy corrosion damage sustained during the East Palestine response and the village reported that another $220,000 worth of fire equipment — hoses, drop tanks and all the turnout gear — was contaminated the night of the derailment and left behind as part of hazmat protocol. 

By Norfolk Southern’s own accounts, the railroad spent $3 million to reimburse the East Palestine Fire Department alone for damaged or contaminated equipment and pledged $5 million to do the same for  departments in Western Pennsylvania.

Yet, by Kroll’s reasoning, Payne –who was wearing the gear that had to be discarded –is not eligible for compensation, despite being exposed to the same noxious gases that left emergency vehicles corroded. 

Images of the 2023 train derailment were captured by Berlin Township Volunteer Firefighter Jen Payne upon her arrival to the scene. Payne is among class members who were recently denied claims for personal injury damages from the $600 million settlement with Norfolk Southern on the basis they were not within 10 miles of the site of the derailment between Feb. 3, 2023  and April 26, 2024. (Photos courtesy of Jen Payne) 

“My husband and I, both firefighters on Berlin Township Fire Department, along with two other members of the department, were on the tracks that night helping to put out the fire while toxic chemicals burned around us,” Payne said. “We were in the thick of it, within feet of the tracks putting out the rail cars.” 

By denying Payne, Kroll also seemingly dismissed the results of the Centers of Disease Control and Prevention (CDC) Assessment of Chemical Exposure (ACE) surveys. The surveys, conducted by the center’s Agency for Toxic Substances and Disease Registry (ATSDR), determine the public’s exposure to harmful substances following events like the East Palestine derailment. The CDC said that 318 first responders along with 708 residents completed early ACE surveys (from Feb. 21 to March 31, 2023) reporting both exposure and symptoms.  The ACE surveys found that 94% participants reported symptoms of the ears, nose or throat, nervous system, lungs, eyes, skin or heart.

Not only did residents and first responders experience immediate symptoms, but the CDC staff conducting the surveys did too. The CDC disclosed its team in East Palestine became ill with the same symptoms — headaches, sore throats, nausea and persistent coughing — that ACE participants did, so sick that staff left the village. 

Payne, like all first responders who worked the derailment, was encouraged to file a claim for personal injury. Payne said she did so at the claims center set by Kroll in East Palestine at the former Rebecca Place. Payne said she had to “make multiple visits” to fill out what Kroll employees on-site said was incomplete or missing  paperwork.

All four of the Berlin Township first responders filed claims. So far, three of the four have been denied.

According to the denial letter, Payne was “not eligible for Personal Injury Payments under the terms of the settlement” because she was “not present within 10 miles of the derailment site between Feb. 3, 2023 and April 26, 2024.” 

“We did everything they asked including filing claims and driving to appointments and now we’re being denied because we were not within 10 miles of the incident?,” Payne said. “That’s not just frustrating, it’s a slap in the face.”

Payne was just one of several class members who received a denial letter this week. Most of the denials were sent to those who filed a claim for having worked in or around East Palestine without residing there, but village residents were denied too, including one who has lived at the same address for over 30 years. They too were determined to not have been “within 10 miles of the derailment”, despite having provided supporting documents such as utility bills, leases and deeds. Others were denied on the basis that they did not respond to letters notifying residents of deficiencies in their claims — letters residents say they never received.

Residents who received denial determinations this week were told they could appeal the decision or request reconsideration by filling out the form on the back of the denial letter and providing supporting evidence to prove eligibility. Those forms were to be sent to Kroll, postmarked no later than June 24. 

But Kroll was booted off the case on order of federal Judge Benita Pearson last week for, among other things, miscalculating and overpaying some claims, and it’s unclear what steps those who want to dispute the denial are to take now that Epiq has replaced Kroll as settlement administrator. 

Pearson has Kroll ordered to turn over all case documents and materials to Epiq and settlement questions are now to be directed to Epiq at 855-369-5685, but those facing the June 24 deadline are left with no straight answers on how to proceed. 

Meanwhile, the denial letter also states  that “documentation or evidence that could have been submitted during the original claim process will not be considered by the settlement administrator or special  master on reconsideration or appeal” — confounding an already confusing predicament for class members who were promised up to $25,000 within 30 days of final approval which granted nearly nine months ago. 

Payne said she already provided documentation of being at the scene the night of the derailment and that the entire claims process has turned out to be a proverbial trainwreck as big as the one she and other first responders ran into Feb. 3, 2023. 

“We showed up to help. We were exposed. And now we’re being told we don’t count,” she said. “That’s not just unfair, it’s disrespectful.”