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Shandell, Blitz, Blitz & Bookson, LLPBert A. Blitz150 Broadway, 14th FloorNew York, NY 10038-4498(212) 513-1300
Berger & Montague, P.C.Sherrie R. SavettJeanne A. MarkeyMichael T. Fantini1622 Locust StreetPhiladelphia, PA 19103(215) 875-3000
New York Environmental Law & Justice ProjectJoel R. Kupferman, Executive Director351 Broadway, 4th FloorNew York, NY 10013-3902(212) 334-5551
Counsel for Plaintiffs
THE UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK
Gail Benzman, Diane Lapson, Jim and Anamae : Civ. No: Gilroy, JoAlison Polett, Robert Gulack, Janice :Fried, John Calder, Jenna Orkin, Kelly Colangelo, :George Dinos, and Brian Edwards, on their behalf :and on behalf of all other persons similarly situated, :
: JURY TRIAL DEMANDEDPlaintiffs, :
v. :Christine Todd Whitman, Marianne L. :Horinko, Michael Leavitt, and the United States :Environmental Protection Agency, :
:Defendants. :
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TABLE OF CONTENTS
CLASS ACTION INTRODUCTION.................................................................................................1
NATURE OF ACTION .....................................................................................................................4
THE PARTIES ................................................................................................................................12
JURISDICTION AND VENUE.......................................................................................................25
CLASS ACTION ALLEGATIONS................................................................................................ 26
STATEMENT OF FACTS...............................................................................................................28
The Declaration Of A Natural Disaster................................................................................28
Lower Manhattan And The Surrounding CommunitiesWere Blanketed With Known Hazardous Substances.........................................................30
The EPA Never Utilized Methodology Specifically Applicable To Testing For Asbestos Fibers In Residential Interiors WhichIt Had Scientifically Developed In Early 2001 And SubsequentlyRelied Upon In Libby Montana .........................................................................................42
The Cleanup Of These Hazardous Substances Is Heavily Regulated..................................44
Federal Regulation Of Asbestos...........................................................................................44
NESHAP Work Practice Standards Under The Clean Air Act Pertaining To Renovation And Demolition Of Buildings................................46
OSHA Asbestos Standards Protecting Construction Workers From Asbestos Exposure..........................................................................48
OSHA Asbestos Standards Protecting All Occupational
Exposure To Asbestos.............................................................................................50
OSHA’s Asbestos Standards For Construction Workers, The EPA’sIdentical Standards And OSHA’s Asbestos Standards For OtherOccupations Specifically Apply To Emergency Response Operations...................52
OSHA’s Hazardous Waste Regulation Specifies Additional Safety Precautions To Protect Employees From Exposure To Hazardous Substances Such As Asbestos..........................................................52
Additional Relevant Federal Regulations Governing Asbestos Removal...............53
AHERA Regulations................................................................................................54
Emergency Planning And Community Right-To-Know Act (“EPCRA”)...............55
CERCLA Regulations..............................................................................................55
Federal Regulation Of Lead.....................................................................................56
THE EPA MADE MISLEADING PUBLIC STATEMENTS THAT IGNORED THE AVAILABLE INFORMATION ONTHE ENVIRONMENTAL HAZARDS ARISING FROM WTCDUST AND PUT THE OCCUPANTS OF BUILDINGSIMPACTED BY WTC DUST AT SERIOUS HEALTH RISK...................................................... 58
The EPA Reassured The Public That It Would ProtectNew Yorkers And “Spare No Expense” To MakeTheir Schools, Workplaces And Residences Safe...............................................................58
The EPA Repeatedly Made Reassuring Public Statements Which
Were Inconsistent With The Known Hazards Of The Toxic WTC Debris.........................59
EPA’s Own Inspector General Criticized The Agency For Its Misstatements On The Air Quality In Lower Manhattan................................................62
The EPA Misleadingly Treated The 1% Asbestos Standard Which TriggersThe Need For Professional Asbestos Removal Under OSHA and EPARegulations As A Health Standard Applicable To The Pulverized WTC Asbestos........... 65
The EPA Failed To Publicly Disclose That The WTC Dust Must BePresumed To Be Asbestos Containing And Therefore, Under ApplicableFederal Guidelines, Must Be Professionally Abated...........................................................66
The EPA Materially Downplayed And Sought To Minimize Its OwnActions With Respect To Cleanup At Its Headquarters At 290 Broadway.........................68
THE EPA FAILED TO ASSUME LEAD RESPONSIBILITY FOR THECLEANUP OF BUILDING INTERIORS DESPITE THE FACT THAT ITHAD THE RIGHT AND THE LEGAL OBLIGATION TO DO SO UNDERFEDERAL LAW, INCLUDING PRESIDENTIAL DECISION DIRECTIVE 62..........................69
Presidential Decision Directive 62 (“PDD 62") Mandates That TheEPA Take Lead Responsibility For Cleanup Of Building InteriorsIn The Case Of A Terrorist Attack...................................................................................... 69
Under The National Contingency Plan, PDD 62 Must Be Followed...................................72
Even In The Absence Of PDD 62, Under The NCP It Was Unlawful For The EPATo Delegate Lead Authority For The Interior Cleanup To New York City........................74
The EPA Cannot Delegate Away Complete Responsibility Under The NCP.................... 74
The EPA Had The Authority To Address Indoor Contamination........................................75
Even If The EPA Could Have Delegated Authority To New York City Under40 C.F.R. §35.6205, Such Authority Should Have Been Quickly RevokedSince The City Was Incapable Of Handling The Situation.................................................76
Even In The Absence Of The NCP, The EPA Could Not LawfullyDelegate Away Responsibility For Indoor Air................................................................... 76
The EPA Made Material Misstatements In Which It Disclaimed Authority And Responsibility For Cleanup Of Lower Manhattan Building Interiors.........................77
THE EPA FAILED TO COMPLY WITH ITS LEGALRESPONSIBILITY, AND ALLOWS THE CITY OF NEW YORK TO HANDLE INDOOR AIR QUALITY.................................................................78
The EPA Endorsed Do-It-Yourself Cleanup GuidelinesWhich Were Grossly Inadequate.........................................................................................80
As A Result of EPA Misdeeds, There Has Been Inadequate Indoor HazardousMaterials Remediation and a Threat to Public Health.........................................................84
There Has Been No Enforcement To Ensure Cleanup........................................................89
EPA INITIATED A VOLUNTARY CLEANUP PROGRAM ONEYEAR LATER THAT FAILS TO MEET THE APPROPRIATESTANDARDS AND REGULATIONS............................................................................................90
Indoor Cleanup Level Does Not Meet EPA LevelsUsed For Other EPA Cleanups Conducted Under the NCP................................................93
The EPA Failed To Treat Impacted Buildings as a System.................................................94
Non-aggressive Sampling Does Not Provide Assurance That ResidentsWill Not Be Exposed to Potentially Harmful Levels of Asbestos.......................................95
The Cleanup Program’s Geographical BoundaryWas Not Scientifically Developed.......................................................................................95
RESIDENTS, OFFICE WORKERS,, AND SCHOOL CHILDRENFACE LONG TERM HEALTH RISKS..........................................................................................97
EPA Now Admits to the Long-Term Impact of Exposure
to Hazardous and Toxic Substances....................................................................................98
COUNT I VIOLATION OF THE FIFTH AMENDMENT TO THE CONSTITUTION(Against Defendants Whitman and Horinko).................................................................................100
COUNT IIVIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §701, ET SEQ.(Against Defendants EPA and Leavitt)..........................................................................................104
COUNT IIIMANDAMUS TO COMPEL DEFENDANTS TO PERFORM THEIR LEGAL DUTIES(Against Defendants EPA and Leavitt)..........................................................................................107
List of Abbreviations Used in Complaint
ACM/RACM - Asbestos Containing MaterialAEGL - Acute Exposure Guideline LevelsAHERA - Asbestos Hazard Emergency Response ActAPA - Administrative Procedures ActCAA - Clean Air ActCEQ - Council on Environmental QualityCERCLA - Comprehensive Environmental Response, Compensation
and Liability ActCFR - Code of Federal RegulationsCONPLAN - United States Government Interagency Domestic TerrorismConcept
Of Operations PlanEPA - Environmental Protection AgencyEPCRA - Emergency Planning and Community Right to Know ActESF - Emergency Support Functionf/cc - Fibers per Cubic CentimeterFEMA - Federal Emergency Management AgencyFRP - Federal Response PlanHEPA - High Efficiency Particulate Air HVAC - Heating, Ventilation and Air ConditioningNCP - National Oil and Hazardous Substance Pollution ContingencyPlanNESHAP - National Emissions Standards for Hazardous Air PollutantsNIOSH - National Institute for Occupational Safety and HealthNYCDDC - New York City Department of Design and ConstructionNYCDEP - New York City Department of Environmental ProtectionNYCDOH - New York City Department of HealthNYELJP - New York Environmental Law and Justice ProjectOIG - Office of Inspector General OMB - Office of Management and BudgetOSC - On Site Coordinator OSHA - Occupational Safety and Health AdministrationPACM - Presumed Asbestos Containing MaterialPAHs - Polycyclic Aromatic Hydrocarbons
PCBs - Polychlorinated BiphenylsPCM - Phase Contrast MicroscopyPDD - Presidential Decision DirectivePLM - Polarized Light Microscopy PM - Particulate MatterRQ’s - Reportable Quantitiess/mm^2 - Structures per Millimeter squaredTRIS - Toxic Release Inventory SystemVOC - Volatile Organic CompoundsWTC - World Trade Center
CLASS ACTION COMPLAINT
Plaintiffs, through their attorneys, allege the following upon information and belief, except
as to the allegations which pertain to the Plaintiffs, which are alleged upon personal knowledge.
Plaintiffs’ information and belief are based upon, inter alia, the investigation made by and through
their attorneys. Among the materials Plaintiffs’ attorneys reviewed in preparing this Complaint
are the following: EPA Office of Inspector General, Report on EPA Response to World Trade
Center Collapse: Challenges, Successes, Areas for Improvement, August 21, 2003; Chatfield and
Kominsky; Summary Report: Characterization of Particulates Found in Apartments After
Destruction of the World Trade Center; EPA Region Two, Interim Final WTC Residential
Confirmation Cleaning Study, New York, 2003; Gavett, Coates, McGee, Highfill, Ledbetter and
Coasta on behalf of EPA Office of National Health and Environmental Effects; Toxicological
Effects of Fine Particulate Matter Derived from the Destruction of the World Trade Center, EPA
Triangle Park 2002; N.Y.C. Department of Health and Hygiene and US Department of Health and
Human Services as part of WTC Environmental Assessment Working Group; Final Technical
Report of the Public Health Investigation to Assess Potential Exposures to Airborne and Settled
Surface Dust in Residential Areas of Lower Manhattan, Martin, Robert J. National Ombudsman
World Trade Center Hazardous Waste Case: Findings and Recommendations to Date; March,
2002; Environmental Protection Agency, Lessons Learned in the Aftermath of September 11, 2001
Final Report, February 1, 2002; numerous press releases issued by the EPA and other
governmental authorities; numerous hearings and other transcripts including; Transcripts of
Hearings of the National Commission on Terrorist Attacks upon the United States; Subject
affected Constituencies, Chaired By Thomas H. Kean, attended by Senator Charles Schumer (D-
NY), Senator Hillary Clinton (D-NY), Senator John Corzine (D-NJ), Senator Frank Lautenberg
(D-NJ), Representative Jerrold Nadler (D–NY), Representative Christopher Shays (R-CT) and
Representative Chris Smith (R-NJ), held on May 22, 2003. Marianne, Horinko L.
Deposition Testimony January 6, 2003; Nadler, Jerrold, Statement Regarding EPA
Ombudsman Transfer, Hearing before Senate Environmental and Public Works
Committee., June 25, 2002; Transcripts of public hearing: Air Quality Issues in
Lower Manhattan in the Aftermath of September 11; Assembly Hearing Room,
April 12, 2002;Christodoulou, Marilena, Testimony, Hearings before the Senate
Committee on Environment and Public Works, Subcommittee on Clean Air,
Wetlands, and Climate Changes, February 11, 2002; Dr. Levin, Stephen,
Testimony, Hearings before the Senate Committee on Environment and Public
Works, Subcommittee on Clean Air, Wetlands, and Climate Changes, February 11,
2002; Frieden and Miele, New York City Department of Environmental Protection
Testimony, Hearings before the Senate Committee on Environment and Public
Works, Subcommittee on Clean Air, Wetlands, and Climate Changes, February 11,
2002;Kenny, Jane M., EPA Statement, Hearings before the Senate Committee on
Environment and Public Works, Subcommittee on Clean Air, Wetlands, and
Climate Changes, February 11, 2002; Jackson, Marianne, FEMA Statement,
Hearings before the Senate Committee on Environment and Public Works,
Subcommittee on Clean Air, Wetlands, and Climate Changes, February 11, 2002;
Dr. Kelly, Kerry, Testimony, Hearings before the Senate Committee on
Environment and Public Works, Subcommittee on Clean Air, Wetlands, and
Climate Changes, February 11, 2002; Berger, Elizabeth H., Testimony, Hearings
before the Senate Committee on Environment and Public Works, Subcommittee
on Clean Air, Wetlands, and Climate Changes, February 11, 2002; Congressman
Jerrold Nadler, Testimony Hearings before the Senate Committee on Environment
and Public Works, Subcommittee on Clean Air, Wetlands, and Climate Changes,
February 11, 2002; Senator George Voinovich, Hearings before the Senate
Committee on Environment and Public Works, Subcommittee on Clean Air,
Wetlands, and Climate Changes, February 11, 2002; Written Statement of
Governor Christine Todd Whitman, Administrator, U.S. Environmental Protection
Agency; before the Subcommittee on Commerce, Justice, State and Judiciary of
the Committee on Appropriations, May 9, 2001; Senator Jim Jeffords Statement
to the Senate Environment and Public Works Committee Hearing on the Federal
Emergency Management Agency; October 16, 2001; “Report on the Oversight
Investigation of the EPA’s Response to the World Trade Center Collapse”
Conducted by the Staff of Chairman Inhofe of the US Senate Committee on
Environmental and Public Works, September 23, 2003; numerous media reports
including: Schneider, Andrew, “Public Was Never Told That Dust from Ruins was
Caustic; Scientists Found Residue as Corrosive as Drain Cleaner”, St. Louis Post
Dispatch, February 10, 2002; Carlton, Jim, “Buck-Passing Delayed EPA in 9/11
Cleanup”, Wall Street Journal, May 9, 2002; Cardwell, Diane, “ New Task Force to
Deal with Questions on Air Quality”, New York Times, March 9, 2002; Schneider,
Andrew, “ NYC Under an Asbestos Cloud”, The Saint Louis Post Dispatch, January
9, 2002; Gonzalez, Juan. “Feds Ignore Asbestos Cleanup Rules”, Daily News,
November 20, 2001; and various third party assessments including; Federal
Emergency Management Agency Office of Inspector General, FEMA’s Delivery of
Individual Assistance Programs: New York- September 11, 2001, December
2002; Jenkins, Cate, NYC Department of Health Misrepresentations. February,
2002; Jenkins, Cate, Preliminary Assessment of Asbestos in Manhattan; Why
Cleanup of WTC Contamination Is Ineffective To Date; Advantages of Cleanup
Under Superfund Statute; Summary Risk Assessment for WTC Fallout, January,
2002; General Accounting Office, September 11: Overview of Federal Assistance
to the New York City Area, October, 2003; Jenkins, Cate, Comments on the EPA
Office of Inspector General’s 1/27/03 interim report titled: “EPA’s Response to
the World Trade Center Collapse”; A Documentary Basis for Litigation.
Washington DC, 2003; Jenkins, Cate. World Trade Center Asbestos Gonzales,
Juan, Fallout, The New Press, c. 2003.
NATURE OF ACTION
1. Plaintiffs bring this class action suit on behalf of a Class consisting of: a) residents
of Lower Manhattan (including Chinatown and the Lower East Side)(hereafter, “Lower
Manhattan”) and Brooklyn; b) students attending a Lower Manhattan or Brooklyn school; and c)
workers whose place of employment was in Lower Manhattan or Brooklyn; who have been
exposed to hazardous substances in the interior of their residences, schools, or work places as a
result of an immense cloud of dust and debris which was released from the collapse of the World
Trade Center (“WTC”) towers and several surrounding buildings (the “WTC Collapse”) on
September 11, 2001 (“9/11"), shortly after a terrorist attack. This suit is brought against: Christine
Todd Whitman, the Administrator of the United States Environmental Protection Agency (“EPA”)
as of September 11, 2001 and until June 24, 2003; Marianne L. Horinko, the Assistant
Administrator designee of the EPA as of September 11, 2001, who was sworn in as the Assistant
Administrator in the first week of October 2001 and became the acting Administrator of the EPA
on June 24, 2003; Michael Leavitt, Administrator of the EPA since November 6, 2003; and the
EPA itself (collectively, “Defendants”), who violated the law with respect to the cleanup of the
dust and debris deposited throughout building interiors in Lower Manhattan and Brooklyn after
the WTC Collapse.
2. The airborne dust from the WTC Collapse covered Lower Manhattan like a heavy
blizzard. It settled in building interiors north of Canal Street in Manhattan and in Brooklyn, as
well. The dust included, among other substances, asbestos, lead, glass fibers, mercury and
concrete dust. It made its way through open and sometimes even closed windows depositing
everything from a very light coating of dust to inches of dust covering every interior surface and
into the HVAC systems and ductwork. The disbursement of hazardous substances, contaminants,
and pollutants continued through 2001. Despite the fact that one day after the WTC Collapse a top
federal scientist warned against the quick reoccupation of buildings in the area of the WTC
Collapse because of possible dangers from asbestos and other toxic materials, and despite the fact
that the EPA’s own tests conducted days after the collapse revealed that WTC dust contained
asbestos at levels higher than the danger thresholds the EPA had itself established, on September
17, 2001, federal and New York City officials allowed thousands of people to return to their
homes and work places in Lower Manhattan and Brooklyn, with no proper cleanup having
occurred. Thus, Plaintiffs and all Class members have been exposed to hazardous substances
since the early stages of this catastrophic event.
3. This case stems from a series of actions which defendants EPA, Whitman and
Horinko took after the WTC Collapse over the course of many months which consistently
exemplify a concerted effort on the part of the EPA to avoid responsibility for the interior cleanup
of buildings contaminated by the WTC dust despite its legal obligations to do so and despite the
health risks such contaminants have posed to occupants. The actions are striking in both their
thematic consistency and the fact that they necessarily resulted in the EPA knowingly creating a
health risk for those individuals living and working in Lower Manhattan and Brooklyn who were
exposed to contaminated WTC dust in their homes, schools and work places. Among other
actions, the EPA:
• repeatedly, and over the course of months, made materiallymisleading and unduly reassuring statements as to, among otherthings, the air quality in Lower Manhattan, and failed to state that:1) under its own guidelines interior dust must be presumed to beasbestos containing and thus must be professionally cleaned , and 2)that every effort must be made to avoid inhalation, ingestion andhard contact with such dust;
• failed to follow federal authority mandating that it take the lead inseeing to it that interior WTC dust was adequately cleaned from allinterior spaces;
• failed to follow the National Contingency Plan (“NCP”) whichoutlines procedures that the EPA must follow in responding to therelease of hazardous substances, and holds it “imperative” to tell thepublic the truth about a release of hazardous substances;
• falsely denied having authority for and jurisdiction over interiorcleanups;
• violated the NCP in delegating to New York City responsibility forensuring interiors were cleaned while knowing that: a) New YorkCity was incapable of accomplishing the task and b) New York Citywas simply passing such responsibility onto the public, a publicwhich the EPA further knew was entirely incapable of undertakingsuch a massive, expensive and risk-laden cleanup;
• endorsed the unsafe cleaning procedures issued by New York Citywhich flatly violated the EPA’s own procedures which called forprofessional abatement;
• withheld from the Plaintiffs and the putative Class the material factthat interior spaces must be cleaned by personnel professionallytrained in asbestos abatement, despite the federal regulations, theconclusions of various environmental consulting firms and thetestimony of experts and citizens which uniformly called forprecisely such a cleanup;
• violated the NCP in endorsing New York’s cleanup procedures inthat such procedures were less stringent than those called for underfederal law; and
• chose to entirely ignore its own scientifically developedmethodology for testing for interior asbestos fibers in the breathingzone of people in their homes. The EPA developed and utilized thismethodology in early 2001 in connection with interior asbestos inLibby Montana. The results of such testing prompted the EPA toundertake interior cleanups in Libby.
• waited a year before finally implementing a cleanup program thateven then was woefully inadequate and arbitrarily excluded: a) thecontaminated work spaces, firehouses and schools and b) thecontaminated buildings located beyond a small geographical area.
4. Shortly after the WTC collapse, the EPA and Whitman issued a series of press
releases which falsely represented to Plaintiffs and the putative Class that the air in and around
Lower Manhattan was safe to breathe, and that there were no significant health risks associated
therewith. Whitman herself publicly reassured people that the air in New York was safe to
breathe. In actuality, at the time the EPA and Whitman made such statements, they did not have
sufficient data and analyses to substantiate their representations, and such data and analyses do not
exist to this day. Further, the EPA falsely gave its public imprimatur to inadequate and unsafe
cleaning procedures.
5. These false and misleading public statements with respect to air quality and
recommended cleaning procedures for WTC dust ran contrary to the mandate of the federal NCP,
which pertains to the removal of hazardous substances and which had been activated and was
applicable as of 9/11, to the effect that: “When an incident occurs, it is imperative to give the
public prompt, accurate information on the nature of the incident and the actions underway to
mitigate the damage.” 40 C.F.R. §300.155.
6. The EPA violated Presidential Decision Directive 62 (“PDD 62"), the Stafford Act,
the NCP and other federal law, which specifically mandate that the EPA take the lead
responsibility for the cleanup of building interiors which are contaminated as a result of a terrorist
attack. The EPA is the only government entity with the experience, expertise, infrastructure and
resources to ensure an adequate cleanup of the thousands of building interiors which were
contaminated with WTC dust. Nevertheless, the EPA did not assume responsibility for the
cleanup, but instead, left it to the City of New York to handle indoor air quality and to oversee the
cleanup of interior dust.
7. The EPA passed this responsibility onto the City even though the EPA knew that
the City had neither the ability nor the means to ensure an adequate cleanup. By its own
admission, the New York City Department of Environmental Protection was concerned primarily
with water and sewage. Indeed, to make matters worse, the EPA told the City at the time the City
took on the task that the federal government could not directly provide any funds to finance it
either. Not surprisingly, given its lack of expertise, manpower or money, the City passed off
responsibility for testing and remediation of indoor spaces to individual building owners and
tenants. Shockingly, the EPA gave its consent to this decision.
8. After assigning responsibility for the interior cleanup to New York City, the EPA
made no effort whatsoever to see to it that the City adhered to EPA cleaning standards for removal
of hazardous materials, such as asbestos, which were contained in the WTC dust, and instead
deferred to the City’s judgment on which cleaning procedures to endorse. As the EPA and
defendant Whitman have admitted, the EPA’s cleaning standards are materially stricter than those
the City endorsed because, at an absolute minimum, they mandate removal of the WTC dust by an
individual with asbestos abatement training wearing appropriate protective equipment. Thus, in
contravention of federal regulations which directly govern the removal and remediation of these
hazardous substances, the EPA called on private citizens to attempt to clean these substances from
their residences, despite having ample reason to know that these individuals would thereby be
exposing themselves to known toxic substances and the potential for serious illness.
9. Moreover, both the EPA and the City recommended to the public that they follow
some do-it-yourself guidelines for cleaning the hazardous substances, such as asbestos, from their
homes and work places. Such guidelines recommended that residents use wet rags to dust, and
regular vacuum cleaners to clean carpets. These guidelines were not only contrary to the panoply
of federal regulations strictly governing the removal and cleanup of these substances, they also
were grossly inadequate to properly clean the hazardous substances from indoor spaces, and to
protect individuals, such as residents performing the cleaning and their families, from serious
health risks. Even with regard to these seriously deficient guidelines, the EPA and City provided
virtually no enforcement to ensure that these minimal procedures were followed. And indeed,
subsequent investigation has shown that in the majority of instances, even these guidelines were
disregarded by residents, and that the guidelines were routinely disregarded by business owners as
well.
10. Acknowledging that the City had failed in its role as lead agency for interior
cleanups, the EPA belatedly assumed limited responsibility for indoor cleanup in May 2002, when
it jointly announced along with State and City authorities the implementation of a cleanup
program for a small segment of the impacted buildings. Actual cleaning did not begin until
September 2002 - - a full year after the WTC Collapse. Even then, the EPA’s actions were grossly
inadequate. The EPA established a cleanup program which was voluntary - - residents could
choose to have testing only, or cleaning and post-testing of their residences. The program was
severely flawed and clearly did not remediate the public health risk for additional reasons as well:
the program applied to residences only, and did not include office buildings; the EPA tested only
for asbestos, although many other pollutants are present; the geographic area for the program was
too limited and was set arbitrarily (e.g., it completely excluded Brooklyn, and the EPA did not test
in concentric circles around the WTC site to properly determine which geographic areas required
cleanup); and entire buildings were not systematically cleaned, thus leading to recontamination of
residences that were cleaned. Ultimately, the program resulted in testing and/or cleaning of
approximately 4,100 homes, whereas the vast majority of homes - - roughly 17,000, or 80%, were
neither cleaned nor tested by the EPA. Moreover, the program did nothing to counteract the
health risks residents, workers and students had already been subjected to for an entire year.
11. As alleged herein, Defendants’ actions evidence a deliberate, considered decision
to follow a pattern of conduct in which responsibility for the interior cleanup and the health of
those exposed to WTC dust in interior spaces was avoided, a course of conduct to which
Defendants have assiduously sought to adhere and which has created serious health risks for
Plaintiffs and the putative Class. This was despite the fact that Defendants’ actions constituted
clear violations of PDD 62 and other federal law which gave the EPA the right and obligation to
ensure an adequate interior cleanup. In addition, the unalterable reality, and one which PDD 62
tacitly recognizes, was that the EPA was the sole entity with the ability to oversee and ensure such
a cleanup. Over the course of months, the Defendants’ unlawful failure to oversee an adequate
cleaning of the building interiors and their public statements in which they misled Plaintiffs and
the putative Class as to air quality and how to clean interior spaces have left many thousands of
individuals, adults and children alike, unnecessarily exposed to potentially hazardous levels of
asbestos and possibly other carcinogens and toxic substances.
12. When viewed in totality, Defendant Whitman and Horinkos’ actions constituted a
deliberate indifference to human health, one in which they knowingly put Plaintiffs and the
putative Class at risk despite the fact that they, as the stewards of the EPA, were charged with
responsibility for protecting human health and following applicable federal law in so doing.
Defendants knew that the EPA was the only entity which could possibly ensure an adequate
cleanup of the interiors, and, under PDD 62, the Stafford Act, the NCP, and the CONPLAN (the
“United States Government Interagency Domestic Terrorism Concept Of Operations Plan”), as
well as relevant regulations governing asbestos removal, it was obligated to assume lead
responsibility over the cleanup and to make sure it was performed by professionally trained
personnel taking adequate safety precautions. Nevertheless, the EPA completely ignored the law
and its own regulations, and simply left it to Plaintiffs and the putative Class to cleanup for
themselves the contaminated dust which had covered their homes and work spaces. Even if
Defendants had been honest with the citizenry of Lower Manhattan and Brooklyn about the health
risks of indoor air and the manner in which interiors should be cleaned, the cleanup was a nearly
impossible task for individuals to successfully undertake. Private citizens do not have the training,
experience, equipment, and in many cases the financial resources to remove hazardous substances
such as asbestos. Defendants then unconscionably made matters worse by affirmatively deceiving
the public time and again as to how safe the air was to breathe and how they could safely clean
their homes and protect their families. In choosing to walk away from their legal responsibilities,
to make material misrepresentations, and to supply and endorse unsafe cleaning instructions,
Defendants knowingly created a health risk to the public that was foreseeable and that was
independent of, and in addition to, the risk created by the WTC Collapse itself.
13. As a result of Defendants’ wrongdoing, the Class has been exposed to hazardous
substances for over two years, is left with the expense of full and proper cleanup of their
residences and work places, and is faced with potentially serious long-term health effects.
Defendants’ course of action and failure to mitigate or remedy the health risks that they created
amounts to a shockingly deliberate indifference to human health by federal officers in violation of
the most basic substantive due process rights of the Plaintiff Class, which rights are guaranteed
under the Fifth Amendment to the United States Constitution. Further, under the Administrative
Procedures Act, the EPA’s failure to take lead responsibility or indeed any responsibility for the
interior cleanup, its endorsement of cleaning procedures contrary to its own regulations governing
asbestos, and its “cleanup” program as described herein, a) constituted unlawful or capricious and
arbitrary acts or, alternatively, an abuse of discretion; b) were contrary to Constitutional rights;
and c) were without observance of procedure required by law. Accordingly, this suit is brought to
compel the EPA to conduct a proper program of testing and cleanup under the Administrative
Procedures Act, and to compel the creation of a fund to provide for medical monitoring so that
the Class will be afforded an opportunity to have any illnesses arising from the contaminated dust
to which they were unnecessarily exposed, diagnosed and treated at its earliest stages.
THE PARTIES
14. Plaintiff Gail Benzman is an employee at the New York City Comptroller’s
Office, Municipal Building, 1 Centre Street, New York, NY. After the attacks on WTC, around
September 20, 2001, Plaintiff Benzman and other employees were allowed to reenter the building
in order to work. Layers of dust, which came from the WTC Collapse, were visible at that time.
Immediately upon her return to the building, Plaintiff Benzman began to suffer many various
physical ailments, including a persistent cough, chest pain, and difficulty breathing. She has been
diagnosed with Restrictive Airway Disease, and her daily activities have been curtailed. She had
no prior history of such symptoms.
15. Plaintiff Diane Lapson resides at 40 Harrison Street, New York, New York, 10013,
which is part of Independence Plaza. The building is located about three blocks from the WTC
site. After the WTC Collapse, WTC dust was visible in her building. When the tenants requested
that all hallway carpets, believed to contain asbestos, be removed, six to eight months later the
EPA simply wet the carpets and pulled them out, without taking any precautions to ensure the
asbestos did not contaminate the apartments. Plaintiff Lapson refused a cleaning of her own
apartment by the EPA because she did not believe that their cleaning methods were adequate. She
also believes that the EPA’s voluntary cleanup program, which does not systematically clean
entire buildings, leads to recontamination when some apartment owners have cleanups and others
do not. Plaintiff Lapson attempted to clean her own apartment using a HEPA vacuum and wet
rags - the cleanup techniques recommended by the EPA and the City of New York. Plaintiff
Lapson now suffers from physical ailments, including respiratory problems and eye infections.
16. Plaintiffs Jim Gilroy and his young daughter Anamae reside at 310 Greenwich
Street, New York, New York, a few blocks from the WTC site. After the WTC Collapse, Plaintiffs
went to stay with friends for about 3 weeks. After hearing Defendant Whitman’s public
statements that the air was safe to breathe, the Gilroy Plaintiffs returned to their home. They had
visible WTC dust in their apartment for months. Plaintiff Jim Gilroy attempted to clean his
apartment himself. Over one year after September 11th, the EPA cleaned the Gilroy Plaintiffs’
apartment, but no testing was done subsequent to the cleaning. Plaintiff Jim Gilroy suffers from
physical ailments, including tremendous headaches and inflamed sinuses. His daughter Anamae
suffers from chronic rashes on her body which developed only after they returned to their
apartment after September 11th.
17. Plaintiff JoAlison Polett lives at 105 Duane Street, New York, New York, which is
seven blocks north and a half block east of the former WTC site. She was in that 52-story building
on September 11, 2001 when the planes hit the WTC towers. She shut her windows before the
dust cloud hit her building, and she believes she was not exposed to the ensuing plume of debris.
The next morning, she left her home and stayed with friends in Brooklyn. About one week later,
after hearing the EPA’s proclamations that the air was safe, she returned to her home where she
detected a thin layer of glittery dust discernable by swiping near the window. She cleaned such
dust with a wet rag, and subsequently with a HEPA vacuum and additional wet wiping, without
using minimal protective gear. Though she felt fine initially, soon thereafter she began to show
symptoms of respiratory ailments. She had no prior history of such symptoms. Her voice
developed a gravelly undertone. She felt soreness when she inhaled. Other symptoms included a
dry cough and difficulty breathing. By the end of October 2001, these symptoms, which were at
first intermittent, became persistent and increased in severity. In early November, she developed
bronchitis, and would lose her voice periodically. On November 20, 2001, she was examined by a
physician specializing in occupational and environmental medicine, who told her to leave her
apartment. She had contacted the Federal Emergency Management Agency (“FEMA”) and was
visited the following morning by a FEMA agent, who told her that her apartment was
uninhabitable. He told her that because the ventilation system of her building was on when the
WTC towers collapsed, the dust was “...all over your walls, all over your ceiling, all over your
floors - you just can’t see it.” From November 21, 2001 to June of 2003, Plaintiff Polett lived in a
hotel on the Upper East Side of Manhattan. Her symptoms improved when she was out of the
area, but worsened when she was re-exposed to the dust. Hoping to return home, she began
working with other tenants in her building who were trying to secure a proper cleaning of the
ventilation system, which sampling conducted by an independent contractor had shown to be
contaminated with a high level of asbestos. When tenants requested assistance from the City
Department of Environmental Protection and the New York City Department of Health, these
agencies actively obstructed tenants’ efforts to get the landlord to have the system cleaned by
workers with proper training and certification. Her apartment was cleaned again on December 5,
2001 by a volunteer crew of Southern Baptists using HEPA vacuums. Although her landlord had
hired a company to clean the common areas of the building and conducted testing in response to
tenants’ complaints, the workers who cleaned were neither properly supervised nor trained, and
Plaintiff Polett believes that the testing methods employed were inadequate. In fact, not only did
testing of her apartment conducted by a Certified Industrial Hygienist in January of 2002 show
asbestos and fiberglass contamination, but EPA sampling of her apartment prior to cleaning in
May of 2003 showed heavy metal exceedences substantially in excess of EPA’s health-based
benchmarks developed for the Lower Manhattan Residential Cleaning and Testing Program.
Nevertheless, and despite medical advice, on February 13, 2002, Plaintiff Polett received a call
from FEMA telling her that FEMA would only reimburse her for her hotel bill through February
6, 2002, because the EPA said the air quality in Lower Manhattan was safe and everyone could
return home. It was only with the assistance of her Congressman that she was able to obtain
continued reimbursement. Plaintiff Polett believes her building was not cleaned adequately, and
she currently suffers from reactive airways and gastro-esophageal reflux.
18. Plaintiff Robert Gulack is a Senior Attorney with the U.S. Securities and Exchange
Commission (SEC), Northeast Regional Office, and a union representative of the National
Treasury Employees Union. On the morning of September 11, 2001, he was at his office in 7
World Trade Center when the planes hit the WTC towers. He evacuated towards Greenwich
Village and totally escaped the plume of dust that resulted from the two towers falling. His office
building was destroyed in the attack, and Plaintiff Gulack worked at home until mid-October
2001. At that time, the SEC office was relocated to floors 13-16 of the 57-story Woolworth
Building at 233 Broadway, with the SEC telling employees that the building had been cleaned and
the landlord making assurances that it was safe. Plaintiff Gulack further heard in newspapers, on
television, and on the radio the assurances of the EPA that the air in Lower Manhattan was safe to
breathe. Two days after resuming work in the Woolworth Building, Plaintiff Gulack developed
asthma. Bronchitis and pneumonia ensued, though he had no previous history of chronic
respiratory problems. He remains ill to this day. His co-workers similarly fell ill. In November
2001, a three percent level of asbestos was found on the outside of the building. The SEC
installed HEPA filters. In August 2002, the SEC, having leased floors 6 and 11, conducted testing
on those floors, and found high amounts of asbestos. Thirteen months later, in January 2003, as a
union representative, Plaintiff Gulack organized testing for the Woolworth Building, which
showed significant recontamination in the air intake room. The landlord began cleaning the
outside of the building in September 2003 (meaning that for two years the outside contamination
had every opportunity to seep back into the SEC offices). Asbestos also was found in the
stairways and elevators. Plaintiff Gulack was granted a two-year medical accommodation
whereby he worked at home three days a week, and two in the office. This accommodation was
withdrawn in August 2003. Plaintiff Gulack has since exhausted all available sick leave and
annual leave. A recent x-ray revealed calcification and permanent scarring on his lungs. Plaintiff
Gulack’s respiratory condition becomes exacerbated every time he spends more than a few days a
week at work. Though on December 8, 2003, the doctor assigned by the SEC to review Plaintiff
Gulack’s medical condition advised the SEC that he should not work in the Woolworth building
“on any regular basis”, SEC management decided on December 22, 2003 to order Plaintiff Gulack
to work full-time in the Woolworth building. On February 13, 2004, the U.S. Department of
Labor’s Office of Workers’ Compensation Program notified Plaintiff Gulack that his federal
workers’ compensation claim had been accepted for “upper respiratory inflammation due to fumes
and vapors” at the Woolworth building. Plaintiff Gulack is now at home applying for continued
compensation under the program.
19. Plaintiffs Janice Fried and John Calder are co-owners of Steamers Landing, a
restaurant located at 375 South End Avenue, New York, NY, 10280, just a few blocks from the
WTC site. On September 11, 2001, two large windows of the restaurant were broken as a result of
the WTC Collapse, and their restaurant was filled with WTC debris and dust. City officials
thereafter used their space as a command post. Plaintiffs Fried and Calder were given no guidance
or instruction from any agency on how to handle the contamination in their restaurant. Indeed, in
September/October 2001, Plaintiffs attended a meeting with EPA and various city officials, to
address the situation facing small businesses. Although authorities discussed how FEMA and
others were providing small businesses with assistance, Plaintiffs Fried and Calder never received
any form of assistance of any kind from any governmental agency. In December 2001, Plaintiffs
Fried and Calder hired a company to professionally clean the restaurant. This cost them
approximately $18,000. Subsequently, after learning from a NY Port Authority official that the
WTC towers were constructed with asbestos, Plaintiffs Fried and Calder realized that the prudent
course of action was to completely remove and replace the entire ventilation system, equipment,
refrigeration, and other fixtures in their restaurant. This work took place between February and
April 2002, at an out-of-pocket cost to them of approximately $200,000. Plaintiffs Fried and
Calder are now unable to obtain reimbursement from their insurance company for these costs,
because the insurance company is relying on EPA’s public statements that there is no health
hazard. Finally, Plaintiffs Fried and Calder were physically present in the restaurant for a
substantial amount of time since September 11. Plaintiff Fried has had a cough for months, and
tests have revealed high levels of mercury in her body.
20. Plaintiff Jenna Orkin resides at 96 Schermerhorn St., Apt. 7H, Brooklyn, New
York. The plume from the WTC Collapse hovered over Brooklyn and her home for several days
after September 11th. In October 2002, Plaintiff Orkin had an ultrasonication test done on her
carpet in her apartment, which revealed asbestos in her carpet. A lab, often used by EPA,
performed the tests. Accordingly, in December 2002, Plaintiff Orkin hired a company to perform
an abatement of her entire apartment, which included removing her carpet. She paid $5,500 out-
of-pocket for this professional abatement. After such abatement, an Asbestos Hazardous
Emergency Response Act (“AHERA”) test still found asbestos in her apartment, with one test
showing that she was exposed to a 1 in 1,000 cancer risk, which is one thousand times higher than
the EPA allows at most Superfund sites. To date, she has no discernable physical symptoms.
21. Plaintiff Kelly Colangelo resided at 17 John Street, New York, New York, 10038,
located 1½ blocks east of the WTC site. The windows in her apartment were open on September
11, 2001. As a result of the WTC Collapse, the apartment sustained smoke damage and was
covered with varying amounts of ash and debris. Plaintiff Colangelo contracted a rash on her
face, and began suffering from severe headaches, sinus problems, and a persistent cough after
being let into her apartment on September 12 to retrieve personal belongings. Her building
reopened on September 18, but the extensive damage to her apartment delayed her return until the
apartment could be cleaned. Plaintiff Colangelo hired an independent Fire & Flood Restoration
Contractor to clean the apartment. The cleaning was done by day laborers who were not
professionally trained in asbestos abatement. Plaintiff moved back into the apartment on
September 30th. Unable to open her windows until after the fires stopped burning at the WTC site
in December 2001, Plaintiff Colangelo’s respiratory problems persisted and then she started
suffering from chronic fatigue. She was forced to cover the three HVAC units in the apartment
with cheesecloth in an attempt to capture the gray ash that continued blowing out of the unit,
recontaminating her apartment. The cheesecloth was removed weekly after it turned from white to
dark gray. Plaintiff Colangelo found several small piles of ash and debris on her interior
windowsill after leaving two windows open in January 2002. She collected the bulk dust into
plastic bags and sent 5 samples to two independent material testing companies. The test results
revealed high levels of fibrous glass and quartz, as well as asbestos levels ranging from 1.4% to
2%. Plaintiff Colangelo believes the EPA put residents’ health at risk by not initiating an indoor
cleanup program immediately after September 11, which would have detected this unsafe level of
contamination and allowed for proper remediation and handling of waste. The level of
contamination found through her private testing would have required that the EPA’s “Scope B”
cleaning and testing procedures be followed according to their much-delayed, but documented,
residential cleanup protocols. She believes improper handling of the ash and debris put everyone
in her building at risk, particularly the day laborers. Plaintiff Colangelo currently resides at 41
River Terrace, New York, New York, 10282. She moved to this address in November 2002, and
had the apartment cleaned under the EPA’s voluntary cleanup program. She believes the cleanup
was unprofessional and the testing inadequate because all of the EPA’s documented cleaning and
testing procedures were not followed. She expressed her concerns in a letter to the EPA’s Region
II office in New York, but did not receive a satisfactory response from the EPA representative.
The EPA representative told Plaintiff Colangelo that her building did not participate in the
voluntary testing and cleanup program. With this information, and because her apartment
overlooked the former debris barge operation, to which WTC debris was taken from the WTC site,
she is still concerned about recontamination. After Plaintiff Colangelo was diagnosed with
several new allergies and symptoms of mild asthma, in September 2003, she asked the EPA to
remove her previously-contaminated furniture and carpets from her current residence. EPA
denied her request, and she will now pay out-of-pocket to dispose of the furniture and carpets to
minimize the chance of further impacting her health. She believes the EPA should have informed
residents that the process of steam-cleaning and vacuuming porous furnishings was inadequate for
removing asbestos, and that porous furnishings and belongings should have been removed.
Instead, representatives of the EPA and the New York Department of Health (NYDOH) told her
that she was responsible for deciding if she wanted to dispose of her contaminated furniture and
belongings. Plaintiff Colangelo is still suffering from a persistent cough and frequently
experiences shortness of breath.
22. Plaintiff George Dinos was a sophomore at Stuyvesant High School during the
school year 2001-2002. On September 11, 2001, after the WTC Collapse of Tower One, the 3,000
students and 200 staff members were evacuated from the Stuyvesant school, which is just 4 blocks
from the WTC site. The school was commandeered by the Mayor and emergency officials as a
command center, and rest and relief center for firemen, rescue workers, and law enforcement. On
October 9, 2001, Stuyvesant High School was reopened to the students. The Board of Education
told parents, students, and staff that the school had been cleaned in accordance with instructions
and directions of the EPA’s own site representatives and their agreement that the school was
environmentally safe. Fires emanating from the WTC site created a terrible smell, from the still-
burning toxic waste, which enveloped the school and surrounding vicinity. Moreover, hundreds
of trucks passed by the school on a daily basis carrying toxic hazardous debris taken from the
WTC site to the transfer barge located in the river right next to the school. The barge operation
was the main debris removal operation from the WTC site. Teachers were told not to open any
windows in the school. Nevertheless, clouds of WTC dust blew into the school from the diesel
trucks and barge station. The parents at Stuyvesant High School complained to the Board of
Education and to the EPA that the air was contaminated as a result of the toxic debris of the WTC
Collapse, the smell from the still-burning toxic debris, the use of the school as a rest and relief
station for rescue and recovery workers and then cleanup workers bringing all the toxic debris into
the school, and the trucks carrying the toxic debris to the transfer station next to the school. A
spokesperson from the EPA, Bonnie Bellows, came to a Stuyvesant Parents’ Association meeting
in early November 2001 to address the parents, where she represented that the environment inside
the school and the outside vicinity around the school were safe for the children. These
representations were not true. During the 2001-2002 school year, while students were attending
the school, carpets in the auditorium were tested, and showed the presence of asbestos. The
auditorium was not cleaned until the summer of 2002. As of May 2002, the ventilation system’s
ductwork and the 300 unit ventilators in classrooms had not been cleaned, and their filters had not
been adequately upgraded. Contaminants continuously entered the school through the ventilation
system. Results from environmental sampling conducted by the Board of Education at Stuyvesant
demonstrated that, on more than 50% of the days from October 9, 2001, when the children
returned to school, to February 1, 2002, measurements of respirable particulate matter (PM 2.5)
inside the school exceeded EPA guidelines for children. Levels of lead dust in excess of
regulatory limits were found inside Stuyvesant on several occasions in December 2001, and
January and February 2002. Moreover, the Parents’ Association’s environmental engineer
measured and compared airborne concentrations of particulate matter at the WTC site and on the
north side of the Stuyvesant building, and consistently found the particulate matter to be higher at
Stuyvesant. During the month of February 2002, on 80% of the days, particulates, PM2.5, at
Stuyvesant were higher than at the WTC site. On several occasions, the EPA notified the Parents’
Association that it had monitored high levels of certain contaminants in outdoor air at its
monitoring station, between the school and the barge, in excess of EPA regulatory limits. These
contaminants included asbestos, tetrachloroethane, and isocyanate. Unfortunately, the EPA had
not been monitoring the latter contaminants on a regular basis, nor had it been monitoring and
disclosing the full array of possible contaminants. Consequently, there was no way of knowing if
these or other contaminants were present inside the school. On February 27, 2002, the EPA
National Ombudsman issued a memorandum to EPA’s Region II Administrator in which he
charged that the school was being recontaminated with hazardous material, and that the children
are in “potential, imminent, and substantial hazard.” He called for immediate actions to assure
their safety, including removal of the barges. Shortly after returning to the school on October 9,
2001, Plaintiff Dinos developed physical symptoms, including severe sinus problems, congestion,
difficulty breathing, and nose bleeds. He had no prior history of such symptoms. Everyday after
school, Plaintiff Dinos had to flush his nose with a saline solution, to rinse away contaminants he
had inhaled, and gargle with an antiseptic solution. Plaintiff Dinos’ doctor told him that the
constant exposure to the contamination was keeping him sick. His symptoms would subside any
time he was away from the school for any extended periods - holiday breaks, summer, etc.
Similarly, since the return to school on October 9, 2001, a number of students and faculty at
Stuyvesant have reported and exhibited clinically diagnosable symptoms of illness. Many parents
reported that their children have experienced unusual rashes, nosebleeds, coughing attacks, and
chronic sinus and respiratory problems, including new onset asthma and chemical bronchitis.
Parents have reported several emergency room visits. After most of the fires at the WTC site were
extinguished around February 2002, and after the toxic waste barge station was removed from its
location next to the school around May 2002, the school was cleaned again in the summer of
2002. When Plaintiff Dinos returned to school for his junior year in September 2002, his
symptoms were not as severe as they were during the prior school year. Plaintiff Dinos has no
physical symptoms today, but he is more susceptible to colds and flu than was previously the case.
Plaintiff Dinos is now a senior at the school.
23. Plaintiff Brian Edwards was a sophomore at Stuyvesant High School during the
school year 2001-2002. After being shut down on September 11th, Stuyvesant was reopened to the
students on October 9, 2001. As discussed in detail in the prior paragraph, despite the students
and their parents being told that the school was environmentally safe, in fact, after being reopened,
the school still contained hazardous substances resulting from the toxic debris of the WTC
Collapse, the smell from the still-burning fires at the WTC site, and the hundreds of trucks
carrying toxic debris which passed the school each day to the transfer barge station located next to
the school. Plaintiff Edwards returned to Stuyvesant on October 9, 2001, and still attends the
school to this day. He will graduate in June 2004. To date, Plaintiff Edwards has no discernable
physical symptoms.
24. Defendant Christine Todd Whitman (“Whitman”) was an official, agent, and/or
representative of the United States Environmental Protection Agency. At all relevant times hereto,
Defendant Whitman served as the Administrator of EPA, which is the most senior position in this
Agency. She resigned this position on June 24, 2003.
25. Defendant Marianne L. Horinko (“Horinko”) was an official, agent, and/or
representative of the EPA. She was sworn in as the Assistant Administrator the first week of
October 2001 (at which time her liability commences) and became the acting Administrator of the
EPA on June 24, 2003. Defendant Horinko recently testified that she personally was responsible
for taking the lead on emergency responses, which includes cleaning up interiors of buildings. See
deposition testimony of January 6, 2003, in Kaufman v. United States Environmental Protection
Agency, Case No. 2002-CAA-00022 (U.S. Dept. Labor, Office of ALJ).
26. Defendant Michael Leavitt (“Leavitt”) is an official, agent, and/or representative of
the EPA. Defendant Leavitt became Administrator of EPA on November 6, 2003, and has served
in that position since such time.
27. Defendants Whitman, Horinko, and Leavitt, during the times at which they held
their respective official positions at EPA, had complete authority over, and responsibility for, the
actions complained of herein. In particular, as the Administrator of the EPA and the individual
designated to take responsibility for emergency responses, Defendants Whitman and Horinko
were responsible for and did direct the formulation, implementation and enforcement of the
EPA’s policies with respect to WTC dust, the cleanup of such dust in interior spaces, and the
EPA’s public statements which pertained thereto. For instance, Whitman and Horinko bear
responsibility for the EPA’s decision, made in the wake of the WTC Collapse, to refrain from
taking responsibility for cleaning up the building interiors. In that the EPA’s actions, in their
nature and consistency, evidence a conscious, deliberate decision made by the EPA to dodge
responsibility for cleaning up interior spaces, Whitman and Horinko are necessarily responsible
for all acts and omissions flowing from the formulation, implementation and/or enforcement of
such a policy.
28. Defendant Leavitt’s liability arises from his position as current head of the EPA
and, in particular, his authority over, and responsibility for, the continued failure of the EPA to
perform an adequate cleanup of the WTC Collapse in Lower Manhattan and Brooklyn. Any
references to the “Defendants” in this Complaint in connection with events taking place before
November 6, 2003 refer only to the EPA, Whitman, and Horinko.
29. Defendant United States Environmental Protection Agency is a federal
governmental agency, whose stated mission “is to protect human health and to safeguard the
natural environment – air, water, and land – upon which life depends.” EPA is the designated lead
agency for Emergency Support Function No. 10, “Hazardous Materials Annex,” pursuant to the
Federal Response Plan. The intent of this function is to provide support to state and local
governments in responding to an actual or potential discharge and/or release of hazardous
materials following a major disaster or emergency, including the release of airborne contaminants.
JURISDICTION AND VENUE
30. This Court has jurisdiction over these proceedings under 28 U.S.C. §1331, which
provides for original jurisdiction in the United States district courts of civil actions arising under
the Constitution or laws of the United States. This action arises directly under the Fifth
Amendment to the Constitution of the United States, the Stafford Act and under the Administrative
Procedures Act.
31. This Court has jurisdiction over the claims against Defendants Leavitt and the EPA
pursuant to 28 U.S.C. §1361, which provides that district courts shall have original jurisdiction of
any action in the nature of mandamus to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the Plaintiffs.
32. Venue is proper in this district under 28 U.S.C. §1391(b) and (e) because the
events giving rise to the claims herein, or a substantial part thereof, occurred in this judicial
district.
CLASS ACTION ALLEGATIONS
33. Plaintiffs bring this action as a class action pursuant to Federal Rule of Civil
Procedure 23(a) and (b)(3) on behalf of a Class consisting of: a) residents of Lower Manhattan
and Brooklyn; b) students attending a Lower Manhattan or Brooklyn school; and c) workers
whose place of employment was in Lower Manhattan or Brooklyn (this includes firefighters
working or residing in firehouses in Lower Manhattan and Brooklyn), who have been exposed to
hazardous substances in the interior of their residences, schools, or work places as a result of an
immense cloud of dust and debris which was released from the WTC Collapse and the collapse of
several surrounding buildings on September 11, 2001, shortly after a terrorist attack and through
the end of 2001. The members of the Class necessarily include all those satisfying the above
definition who were exposed to such dust in a building contained within the boundaries of the
EPA’s voluntary cleanup program discussed herein. Additionally, the Class members also include
those who satisfy the above definition and who were exposed to such interior WTC dust beyond
the confines of the voluntary cleanup boundaries as determined by representative tests to be
conducted (using concentric circles radiating from the WTC site) to identify the geographical
limits of interior contamination by WTC dust.
34. The members of the Class are so numerous that joinder of all members is
impracticable. While the exact number of Class members is unknown to Plaintiffs at this time and
can only be ascertained through appropriate discovery, Plaintiffs believe that there are thousands
of members of the Class who resided, worked or attended school in Lower Manhattan or Brooklyn
during the relevant time period. Members of the Class may be notified of the pendency of this
action by mail and publication, and other appropriate means, using forms of notice similar to those
customarily used in class actions.
35. Plaintiffs’ claims are typical of the claims of other members of the Class, as all
members of the Class were similarly affected by Defendants’ wrongful conduct that is complained
of herein.
36. Plaintiffs will fairly and adequately protect the interests of the members of the
Class, and have retained counsel who are competent and experienced in class action litigation.
37. Common questions of law and fact exist as to all members of the Class and
predominate over any questions solely affecting individual members of the Class. Among the
questions of law and fact common to the Class are:
(a) whether Defendants violated the law when they failed to take lead
responsibility over the cleanup of building interiors following the WTC Collapse;
b) whether Defendants violated the law when they delegated complete
responsibility for such cleanup to the City of New York and agreed that the City could pass
complete responsibility for such cleanup onto the building owners and tenants; when they issued
affirmatively misleading statements as to New York’s air quality; and when they disseminated and
endorsed cleanup guidelines which were insufficient to both ensure an adequate cleanup and
protect the health and safety of the individuals performing the cleanup, such as residents and their
families, while such cleaning took place; and
c) whether Plaintiffs and the Class were harmed by Defendants’ misconduct.
38. A class action is superior to all other available methods for the fair and efficient
adjudication of this controversy since joinder of all members is impracticable. Further, the
expense and burden of individual litigations make it impossible for members of the Class
individually to seek redress for the wrongs done to them. There will be no difficulty in the
management of this suit as a class action.
STATEMENT OF FACTS
THE DECLARATION OF A NATURAL DISASTER1
39. On the morning of Tuesday, September 11, 2001, terrorists flew two hijacked
commercial jets into the WTC towers. Both towers collapsed within hours of impact, killing
almost 2,800 people, including hundreds of firefighters and police officers. In addition to the
devastating loss of life, the dust and debris emanating from the collapse and the ensuing fires
created environmental concerns for the public that have persisted since the disaster.
40. Airborne dust from the collapse of the WTC towers blanketed Lower Manhattan,
and was blown or dispersed into many of the surrounding office buildings, schools, and
residences. This dust deposited a complex mixture of building debris and combustion by-
1 Many of the facts alleged herein were taken from the August 21, 2003 FinalEvaluation Report of the Office of Inspector General entitled “EPA’s Response to the WorldTrade Center Collapse: Challenges, Successes and Areas for Improvement”, (hereinafter, “theOIG Report.”).
products, including among other substances: asbestos, lead, glass fibers, and concrete dust.
41. In addition to the initial dispersion of dust and debris, fires at the site created
various emissions of harmful pollutants. These fires were not officially declared extinguished
until December 19, 2001, and debris continued to smolder and fires flared up for weeks after that.
Emissions resulting from these fires included particulate matter, various metals, polychlorinated
biphenyls (PCBs), volatile organic compounds (VOCs), polycyclic aromatic hydrocarbons
(PAHs) and dioxin.
42. On September 11, 2001, President Bush signed a major disaster declaration for the
five counties of New York City to provide assistance to New York State, thus activating the
Federal Response Plan. The FRP establishes the process and structure for the Federal
Government to provide assistance to local agencies when responding to the consequences of any
major disaster or emergency declared under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, as amended (42 U.S.C. §5121, et seq.).
43. The Federal Emergency Management Agency (“FEMA”) is responsible for
administering the FRP. This plan includes twelve Emergency Support Functions, which describe
the types of support provided to local authorities, and identify the Federal agencies responsible for
leading and assisting in providing that support.
44. The EPA is the designated lead agency for Emergency Support Function No. 10,
“Hazardous Materials Annex” (“ESF #10"). The intent of this function is to provide support to
State and local governments in responding to an actual or potential discharge and/or release of
hazardous materials following a major disaster or emergency, including the release of airborne
contaminants. FEMA’s mission assignment to the EPA, made immediately after the WTC
Collapse, included, among other responsibilities, assessing “all hazardous substance and oil
releases throughout the NY, NY Metropolitan Area resulting from the World Trade Center
attack.” Further, it included sampling, staging, securing and disposing of all hazardous materials
and oil releases.
45. ESF #10 is designed to coordinate the provision of support and the overall
management to the disaster response sites “to ensure actions are taken to mitigate, clean up, and
dispose of hazardous materials and minimize the impact of the incidents.” ESF #10, p.5.
46. To ensure the most efficient and effective use of resources in responding to an
actual or potential release of hazardous materials, ESF #10 also places the response mechanisms
of the National Oil and Hazardous Substance Pollution Contingency Plan (“NCP”) within the FRP
coordination structure.
47. The NCP provides guidelines and procedures for responding to releases and
threatened releases of hazardous substances, pollutants, or contaminants, including releases that
threaten air quality. Among other things, the NCP is the implementing regulation for the EPA’s
Superfund program. The EPA is the agency responsible under the NCP for discharges or releases
into or threatening an inland zone, as was the case with the WTC Collapse.
48. As the only government entity in a position to oversee an appropriate cleanup of
building interiors, EPA was the lead agency to handle these hazardous materials in this situation.
LOWER MANHATTAN AND THE SURROUNDING COMMUNITIESWERE BLANKETED WITH KNOWN HAZARDOUS SUBSTANCES
49. The collapse of the WTC towers and nearby buildings created a vast 16-acre
disaster zone. First, there was the plume created by the initial fire that sent up a mushroom cloud
of some 91,000 liters of exploding jet fuel containing benzene and other toxic chemicals as well as
billowing smoke. Then there was the downward implosion of the buildings, which toppled nearby
structures and spread pulverized cement, glass, and other dust for miles in a widely-dispersed
pattern. Finally, heated by an intense fire, which was propelled by 180,000 gallons of fuel, the
massive buildings became an incinerator that rendered building materials that would not be
considered immediately hazardous into flying toxins – volatilized combustion products. See
Lyman, Messages In the Dust, pp. 15-16 (September 2003) (citation omitted).
50. Although the exact composition of all the building materials at the WTC site is not
known, some of the major hazards were readily apparent, including 2000 tons of asbestos used in
its construction, and countless fiberglass and Freon refrigerants used in air conditioning systems.
There was an estimated 424,000 tons of concrete, sheet rock, gypsum, fiberglass, and glass; that
does not include everything inside the buildings – an estimated 50,000 personal computers each
containing some 4 pounds of lead (adding up to some 200,000 pounds of lead alone); glass; PCBs;
mercury from light bulbs and computer parts; and 130,000 gallons of transformer oil. Overall, the
collapse of the WTC deposited an estimated one million tons of dust on Lower Manhattan, and
beyond. The Natural Resources Defense Council, in its report on the environmental impacts of
the WTC disaster, called it “an unprecedented environmental assault for Lower Manhattan,”
involving thousands of toxic components released simultaneously that constituted a “pollution
event.” Id.
51. According to FEMA, “as many as seven contaminants of potential concern may
have spread into buildings as a result of the collapse of the WTC buildings.” FEMA December
2002 report of its Office of Inspector General, “FEMA’s Delivery of Individual Assistance
Program, New York, September 2001" (“FEMA Report”) page 25, December 18, 2002.
52. Even before the WTC Collapse, the EPA knew that the WTC towers contained
roughly 400 to 1,000 tons of asbestos (primarily used as fire insulation), based on the 1993
terrorist attack on the WTC. See Federal Emergency Management Agency, Office of Inspector
General, “FEMA’s Development of Individual Assistance Programs: New York - September 11,
2001"; Gonzales, Juan, fallout, The New Press, c.2003, p. 91.
53. The EPA itself began collecting bulk dust samples on September 11, 2001 to
determine how much asbestos was present in the dust from the collapsed buildings. Out of
approximately 170 bulk dust samples, 30% were found to contain more than 1% asbestos (“the 1%
Standard”), which is the standard the EPA employed to mark the point at which the asbestos in
WTC dust became a danger to human health. See Statement of Paul Gilman, Ph.D., Science
Advisor to the EPA, October 28, 2003. Notably, the 1% Standard is flatly inconsistent with the
EPA’s historical position (discussed herein) that all asbestos exposure is hazardous to human
health.
54. The day after the WTC Collapse, a top federal scientist warned in a strongly
worded memo against the quick reoccupation of buildings in Lower Manhattan because of
possible dangers from asbestos and other toxic materials. Dr. Ed Kilbourne, an associate
administrator at the Federal Agency for Toxic Substances and Disease Registry, in response to a
White House request for a health advisory, wrote: “We feel that the issues surrounding a decision
to enter or reenter previously occupied premises is enormously complex.” “A number of
environmental hazards, especially asbestos-contaminated dust, may be present in the area.”
Kilbourne further wrote: “We are concerned about even being asked to write a document for the
public about reentry at this point. Does this mean that unrestricted access to the WTC vicinity is
imminent?” With regard to test data, Kilbourne noted that one of the first five bulk dust samples
analyzed by the EPA from the WTC site contained 4% asbestos, which he labeled a “substantial
concentration.” He warned that it was “important to characterize how far significant levels of
asbestos extend before allowing unrestricted access by unprotected individuals.” “We are aware
of other potential toxic hazards in the WTC area about which you haven’t asked. Contaminant
groups of concern include acid gases, volatile organic compounds and heavy metals.” See New
York Daily News, October 28, 2003.
55. In addition to asbestos, a known carcinogen, “the larger problems are heavy metals
and organic compounds,” according to biologist Peter de Fur, who teaches at the Center For
Environmental Studies at Virginia Commonwealth University, and who reported to MSNBC on
September 26, two weeks after the catastrophic attacks. Mercury, lead, copper, nickel, cadmium,
chromium, dioxin and polychlorinated biphenyls (PCBs) could all be present in the air because of
the materials found in everyday office equipment, from copiers and printers to computers and
electrical equipment. Messages in the Dust, at 67-68.
56. Unsatisfied with government reports and an inability to get monitoring data from
government agencies, several organizations began doing their own independent tests. Joel
Kupferman, a lawyer with the nonprofit New York Environmental Law and Justice Project, took
samples of dust and debris and found not just asbestos at levels (3 percent) similar to those the
EPA found – 4.5 percent, or 4.5 times the EPA’s so-called “safe” level of 1% asbestos – but also
high levels (15 percent) of fiberglass, the substance used to replace it, and other types of mineral
fiber (65 percent), MSNBC reported. Although fiberglass is not as dangerous as asbestos,
pulmonologist Neil Schachter, medical director of respiratory care at Mount Sinai Hospital in
New York City, told MSNBC, “We do not as yet know what the health consequences of breathing
fiberglass fibers are.” It is known that direct contact with fiberglass fibers can irritate the skin,
nose and throat, however, and according to the American Lung Association, “There is a possibility
that these fibers cause permanent damage to the lungs or airways, or increase the likelihood of
developing lung cancer.” Messages in the Dust, at 68.
57. A study by independent researchers suggests that EPA tests could not detect the
finer-particle, more hazardous form of asbestos which was released. According to Hugh Granger,
an environmental toxicologist with Virginia-based HP Environmental Inc., the dust deposited into
office buildings and apartment complexes contains significant levels of asbestos and other
potential health hazards. At the request of a contracting firm overseeing Ground Zero cleanup,
Granger collected samples of residual dust from several local exterior sites and took samples from
outside and inside two nearby office buildings. Granger’s indoor air samples revealed
significantly higher asbestos content than reported by the EPA for ambient air. In addition,
Granger had his samples tested using a different method (TEM) than the EPA did. He said that
was done because asbestos fibers were found that were considerably smaller than usual. Almost
90 percent of the asbestos fibers were smaller than 5 microns in length, which is significant
because, according to Granger, the analytical methods used by the EPA and its contractors likely
could not detect such short fibers. When Granger’s indoor air samples were analyzed, asbestos
levels as high as five structures per cubic centimeter of air were found, much higher than the
generally accepted limit of .01s/cc for reoccupation of a building after asbestos abatement work.
See Environmental Laboratory Washington Report, January 31, 2002. The results of HP
Environmental Inc.’s testing were made public, and thus available to the EPA, as early as October
5, 2001. On information and belief, OSHA, which is investigating complaints of dust exposure
from workers in commercial establishments, also uses the same analytical methods as EPA, which
are inadequate to detect the highly pulverized asbestos fibers.
58. WTC dust is “pulverized concrete, fibrous glass, silicates, carbon particulate matter
and asbestos. This mixture of dust ranged from 1 to 50 microns in size, meaning that it was
respirable to the sinuses and large airways and once the upper airways were overwhelmed by this
burden, the dust was then respirable even to the small lower airways.... The dust had a very high
pH. In other words, it’s like swallowing or inhaling Drano.” See October 28, 2003 statement to a
Congressional Subcommittee, by the Chief Medical Officer of the Fire Department of New York,
testifying about the impact of WTC dust on rescue workers.
59. At a community forum held at New York University on October 18, 2001, Paul
Lioy, Ph.D., a respected environmental scientist and member of the EPA Science Advisory Board,
warned that levels of lead in the dust were moderately high and should not be ignored. He
recommended that homes be professionally cleaned, and that cleaned homes be sampled to ensure
that the cleanup was effective in removing contaminants. See New York Academy of Sciences,
Forum Report, October 18, 2001.
60. The EPA’s own documents, appearing as early as 1996, point to the dangers of
very fine particulates (0.25 to 0.09 microns) and the special health risks they pose because they go
deeper into lungs and can cause more deleterious health impact than larger particulates. Such
very fine particulates cannot be filtered by paper masks and require sophisticated respirators for
human health protection. EPA’s own scientists were well versed in those dangers in September
2001. EPA had access to the equipment to measure for very fine particulates and has routinely
used such equipment at its own Superfund sites as far back as 30 years ago.
61. Despite this bevy of institutional knowledge and capacity, EPA failed to measure
for very fine particulates in the aftermath of the WTC for at least four months. Instead, it
knowingly used techniques to measure the less deleterious larger particulates in the outdoor air,
and evidence indicates it had not taken any measurements, adequate or inadequate, of particulates
in the indoor air at least as late as February 2002.
62. Measurements of very fine particulates were taken independently by Dr. Thomas
Cahill and the “Delta Group” beginning weeks after the WTC, a mile north of Ground Zero. The
“Delta Group”, which Dr. Cahill heads, is a group of scientists convened by the U.S. Department
of Energy to monitor major air pollution incidents around the world. The EPA was informed that
these readings were being taken in January 2002 but did not request results from Dr. Cahill. He
began to provide results of his ongoing measurements to the EPA in February 2002. Dr. Cahill
found a level of very fine particulates in the outdoor air higher than those measured at the Kuwaiti
oil field fires set during the Gulf War. See Contra Costa Times, February 12, 2002.
63. The existence of such a dangerously high level of very fine particulates in the
outdoor air a mile away from the World Trade Center site indicates the likelihood that they existed
in the WTC dust that permeated the indoor air.
64. The EPA knowingly or with gross recklessness, ignored the dangers of very fine
particulates to the Plaintiffs and putative Class and instead, as discussed herein, made
pronouncements that scientific data did not indicate immediate health risks from the indoor air.
65. Juan Gonzalez reported a story on the wide array of toxic chemicals in the dust – in
an October 26, 2001, front-page column entitled “A Toxic Nightmare at a Disaster Site.” His
story detailed the EPA tests’ findings of notable quantities of hazardous benzene, as well as dioxin
levels discharged from a sewer pipe into the Hudson River that were more than five times higher
than any previously recorded in New York Harbor. Messages In The Dust, at 68.
66. “There are no specific papers detailing the creation, dispersion, and long and short-
term effects of a tragedy of this magnitude,” wrote the Coalition, “911 ASH” (Air Safety Hazards).
“Asbestos and fiberglass are clearly present, as is soot; fine particles known to increase the
incidence and symptoms such as asthma, heart disease, and other medical conditions. What are
rarely mentioned are the myriad toxins in the smoke itself. Since no one knows exactly what this
particular combination of plastics, PVC, office furniture, carpet, Freon, natural gas, jet fuel,
metals, asbestos, glass, fiberglass, and other components of the office buildings do when
incinerated, it is impossible to fully test for toxic exposures.” Id. at 69.
67. Another study summarized the results of a telephone survey conducted among
Manhattan residents 5-9 weeks following the attacks showing that among the 13% of adult
respondents with asthma, 27% reported experiencing more severe asthma symptoms after
September 11. Id.
68. A senior chemist in the EPA’s hazardous waste division, and whistleblower,
argued that asbestos levels in Lower Manhattan were high enough to declare the entire area a
Superfund site. The chemist maintained that the level of asbestos contamination up to seven
blocks away from Ground Zero was comparable to or higher than that found at the recently
designated Superfund site in Libby Montana. Id. at 72.
69. Dr. Marjorie Clarke, a Scientist-at-Large at Lehman College and adjunct professor
at Lehman and Hunter Colleges has publicly testified that the WTC Collapse generated thousands
of tons of asbestos, fiberglass, silica and very alkaline concrete which were pulverized into
various size fractions, much of which was extremely fine in size. The collapse was a tremendous
source of heavy metals, polychlorinated biphenyls (“PCBs”) and acids just from the buildings
contents. Further, the finer sizes of particulate matter laden with toxic and carcinogenic
substances produced in the WTC Collapse can evade the body's coughing mechanism, the cilia,
and go all the way down to the alveoli, the air sacs, where they can reside for the long-term.
70. Indeed, using samples obtained within the first two weeks after the WTC Collapse,
a U.S. Geological Survey team tested the particulate dust covering the immediate area of the
World Trade Center. They found that most of the dust was as alkaline as ammonia and some of
the dust was as caustic as liquid drain cleaner. The team had informed the various government
agencies, including the EPA, involved in the emergency response to the WTC Collapse by late
September 2001. Although the EPA acknowledged having discussed the information, the
U.S.G.S. test results were not publicly disclosed. See Schneider, Andrew, “Public Was Never
Told That Dust From Ruins Is Caustic; Scientists Found Residue As Corrosive As Drain Cleaner”,
St. Louis Post-Dispatch, February 10, 2002.
71. In a September 26th EPA test, three of 10 samples near Ground Zero showed
elevated readings for lead, although these results were not released until the end of October. See
Haughey, Christine, “In N.Y., Taking a Breath of Fear; Illnesses Bring New Doubts About Toxic
Exposure Near Ground Zero”, The Washington Post, January 8, 2002. Over a year after the WTC
Collapse, the EPA conducted limited wipe testing of 250 Lower Manhattan apartments. In April
of 2003, Mary Mears, a spokesperson for the EPA, publicly acknowledged that of the 140
apartments in which testing had been conducted, some had elevated levels of lead. On October
28, 2003, at a Congressional hearing held in New York City, the EPA disclosed that 13.5% of such
apartments showed elevated lead levels.
72. The New York City Department of Health and Mental Hygiene and U.S.
Department of Health and Human Services, Public Health Services, Agency for Toxic Substances
and Disease Registry performed one of the largest studies in terms of buildings analyzed.
Although the final report was issue in September 2002, the study’s asbestos results were available
by February 2002 and the study was discussed in a New York City Department of Health press
release that same month. The study collected dust and air samples in and around 30 residential
buildings during November 4 through December 11, 2001 (encompassing 59 apartment units) in
Lower Manhattan. According to the OIG Report, of the 59 apartments, 85 percent had apparently
been cleaned ,professionally or otherwise, prior to sampling. Nevertheless, the study concluded
that almost 20% still had interior dust with over 1% asbestos. It recommended that there be
additional monitoring of residential areas in Lower Manhattan and that residents request cleaning
and/or testing from the EPA.
73. Immediately following the destruction of the WTC, a “Ground Zero” Elected
Official Task Force was formed to respond to the concerns of residents of Lower Manhattan. On
September 15, 2001, the Task Force requested that an independent environmental assessment of
residences be conducted jointly by two experienced environmental consulting firms (the “Ground
Zero Consulting Firms”). On October 12, 2001, the Ground Zero Consulting Firms completed
their sampling of contaminants, and made several conclusions/recommendations in a report
provided by one of the firms to the EPA on or about October 12, 2001. The two firms jointly
concluded in the report: “[T]he concentrations of asbestos found in dust samples and in the air
inside the apartments were significantly elevated. Because these air samples were collected under
passive conditions, any disturbance of this material could increase airborne concentrations and
potentially increase exposure to asbestos.” In their recommendations, they conclude that, “Unless
proven otherwise through testing, all dust should be assumed to be asbestos-containing,”and that
all individuals participating in the cleanup should have, at a minimum, asbestos abatement
training and a respirator equipped with a high-efficiency particulate air (HEPA) filter.
Accordingly,
The dust cleanup should be conducted by an environmentalcontractor with expertise in asbestos contamination cleanup orremediation of hazardous materials. Contractors selected for thiswork should be licensed by the proper authorities . . . In lieu of thisrequirement, at a minimum, individuals should have AwarenessTraining in accordance with the OSHA Asbestos Standard, 29C.F.R. 1926.1101.
. . . Individuals performing the dust cleanup should be equippedwith proper personal protective equipment to reduce exposure toasbestos-containing and alkaline dust. This equipment shouldinclude the use of half-face air-purifying respirators that areequipped with high-efficiency particulate air (HEPA) filters.
. . . To reduce dust recirculation, all surfaces (including those insideof cabinets, etc.) should be cleaned using vacuum cleanersequipped with HEPA filters.
The heating, ventilation, and air-conditioning (HVAC) systemshould be inspected. If the system was in operation during or afterthe September 11th incident, it may contain asbestos-contaminateddust. An environmental consultant should be consulted to determinethe most efficient procedures to clean the system including the air-handling unit and ventilation ducts (supply and return).
. . . A suitable re-occupancy clearance criterion needs to beestablished. This criterion can be based on a thorough visualinspection and/or air testing.
See Summary Report: Characterization of Particulate Found In Apartments After Destruction of
the World Trade Center, October 12, 2001.
74. As described below, the EPA did not recommend these procedures to residents
when advising them on how to clean up these hazardous substances.
75. On November 1st and 8th 2001, the Committee on Environmental Protection held
public hearings in Manhattan to discuss the environmental impacts on Lower Manhattan of the
WTC Collapse. Kathleen Callahan, Deputy Regional EPA Director, provided testimony. At such
hearings, Dr. P. Landrigan of Mt. Sinai Hospital testified that a need exists to take aggressive steps
to minimize children’s exposure to WTC dust and to create a registry of children of all ages who
have potentially been exposed to dust. Further, those speakers addressing the subject were in
agreement that interior dust should be professionally abated. David Newman, Industrial Hygienist
on the staff of the New York Committee for Occupational Safety and Health (“NYCOSH”), stated
that the heaviest exposures to airborne asbestos take place in indoor settings when settled WTC
dust is disturbed and made airborne and that NYCOSH was concerned that residents who return to
their residences and engage in cleanup activities may be exposing themselves and their families to
hazardous levels of toxins.
76. On December 3, 2001, an independent industrial hygienist, retained by the New
York Environmental Law and Justice Project (“NYELJP”), sampled two surfaces of a residential
building in Tribeca using methods published by the American Society for Testing and Materials.
The sample taken from an air supply vent in the hallway found the presence of asbestos at 550
times the suggested acceptable level.
77. In April 2002, the NYELJP again had tests conducted for asbestos in WTC dust,
this time at 150 Franklin Street (a building which contained a day care center). When the results
again showed extremely high levels of asbestos in the interior dust, the EPA finally agreed to test
the dust there using the more sensitive TEM testing. The results showed pulverized asbestos
levels of from 2.2% to 5%. In contrast, the New York Department of Environmental Protection,
using the same dust samples but the less sensitive PLM method to test for asbestos, detected none.
One hundred fifty Franklin Street is approximately seven blocks beyond the area covered by the
voluntary clean up program described herein.
78. Reiterating the initial studies of the WTC dust, in January 2002, the Assistant
Secretary for Occupational Safety and Health (“OSHA”), John L. Henshaw, sent an interpretation
letter which set forth OSHA’s determination that the settled dust from the WTC collapse must be
“presumed to contain asbestos” (generally referred to as “PACM”), and therefore, that OSHA’s
federal regulations requiring professionally trained personnel to remove such PACM are
applicable.
[I]n that the materials containing asbestos were used in the construction of theTwin Towers, the settled dust from collapse must be presumed to containasbestos. Therefore, the use of Transmission Electron Microscopy (TEM) isnot necessary in order to establish that the applicable provisions of theConstruction Asbestos standard 29 CFR 1926.1101 apply during the demolitionor salvage of the affected structure.
In February 2002 this letter was supplied to the EPA during the EPA Ombudsman hearings
described herein.
THE EPA NEVER UTILIZED METHODOLOGY SPECIFICALLY APPLICABLE TO TESTING FOR ASBESTOS FIBERS IN RESIDENTIAL INTERIORS WHICHIT HAD SCIENTIFICALLY DEVELOPED IN EARLY 2001 AND SUBSEQUENTLYRELIED UPON IN LIBBY MONTANA
79. By way of background, Libby Montana is a community located near an open pit
vermiculite mine which began limited operations in the 1920's and was operated on a larger scale
by the W.R. Grace Company from approximately 1963 to 1990. Studies at the site revealed that
the vermiculite from the mine contains amphibole-type asbestos, and that workers at the mine had
an increased risk of developing asbestos-related lung disease. Although the mine has ceased
operations, there was concern that historic or continuing releases of asbestos from mine-related
materials could be serving as a source of ongoing asbestos exposure and risk to current and future
residents in the area.
80. The situation was being addressed by the EPA’s Region 8 office in Denver,
Colorado beginning in November 1999. The EPA was operating under removal authorities
provided in the Comprehensive Environmental Response Compensation and Liability Act Section
104 (CERCLA or Superfund). The EPA’s investigative team worked closely with local, state, and
other federal agencies to determine the nature and extent of mineral fiber contamination
throughout Libby, and to take appropriate action to protect the health of current residents and
workers.
81. Pursuant to a Phase 2 Sampling and Quality Assurance Plan (“Phase 2 Plan”), the
EPA set out to, and did, determine what type of air sampling method was needed to evaluate risks
to individuals engaged in both routine and special activities in their homes; to determine which of
the TEM and PCM methods of air sampling was most appropriate; and to utilize the resultant
testing methodology to assess the potential health risk to people in the community exposed to
interior asbestos.
82. Relying on the testing methodology arising from the Phase 2 Plan, the results of the
interior testing performed in Libby showed asbestos at levels comparable to those found in Lower
Manhattan. Further, the EPA declared Libby to be a Superfund site and embarked on a program
of asbestos abatement in the interior of homes.
83. The EPA did not approach Lower Manhattan in the same comprehensive and
scientific manner in which it ultimately addressed Libby Montana. This was even despite the fact
that many other hazardous substances were contained in the WTC dust in addition to asbestos.
More particularly, the expertise and scientific data the EPA developed in connection with Libby
was ignored. For instance, EPA’s experience at Libby made clear that TEM testing for asbestos
was superior, i.e., more accurate and more powerful, to PLM testing, a 20 year-old technology.
Indeed, the EPA recognized that TEM can identify thinner asbestos fibers than PCM, and is also
able to clearly distinguish asbestos from non-asbestos fibers. Nevertheless, the EPA chose to
utilize the PLM technology when testing for asbestos in connection with the WTC Collapse. In
fact, in the wake of the WTC Collapse the EPA Region 2 officials in New York City refused
Region 8's offer to provide TEM knowledge, equipment and manpower.
THE CLEANUP OF THESE HAZARDOUS SUBSTANCES IS HEAVILY REGULATED
84. The hazardous substances that blanketed Lower Manhattan and the surrounding
communities are heavily regulated substances because of their toxic effect on human health.
Federal Regulation Of Asbestos
85. Asbestos is a carcinogen with no commonly safe level of exposure. In fact, based
on human epidemiological data, EPA listed asbestos as a Group A (known) human carcinogen.
See e.g., Asbestos Worker Protection; Asbestos-Containing Materials in Schools; Proposed
Amendment, Part IV, 59 Fed. Reg. 54,746, 54,750 (1994). According to the EPA, “[t]he primary
route of human exposure is through the respiratory system, where asbestos fibers may cause
carcinoma of the lung, malignant mesothelioma of the pleura and peritoneum, asbestosis, and
other illnesses.” Asbestos Worker Protection; Final Rule, Part VI, 65 Fed. Reg. 69,210, 69,211
(2000). Asbestosis is a serious, progressive long-term disease of the lungs. It is caused by
inhaling asbestos fibers that irritate lung tissue and cause scarring. The symptoms of asbestosis
include shortness of breath and a dry, crackling sound in the lungs. There is no effective
treatment. Lung cancer is also a possible result from exposure to asbestos and generally involves
individuals who also have a history of smoking cigarettes. Mesothelioma is a rare, generally fatal
form of cancer in which cancer cells are found in the mesothelium, a protective sac that covers
most of the body’s internal organs. Exposure to asbestos is the major risk factor for
mesothelioma. Each of these illnesses generally does not present itself until many years after
exposure to asbestos. Persons who smoke who are exposed to asbestos, according to some
estimates, have 80 to 90 times the probability of suffering from asbestos-related diseases.
Contrary to the EPA’s assurance contained in its do-it-yourself cleanup guidelines issued to
residents (described below), that asbestos-related disease “results only from intense asbestos
exposure experienced over a period of many years, primarily as a consequence from occupational
exposures,” the EPA has in fact recognized that in addition to workers, “[b]uilding occupants,
including school children, may be exposed to asbestos fibers as a result of activity taking place in
their building.” 65 Fed. Reg. 69,210, 69,211. The EPA has specifically identified “custodial
activities” as posing a risk of asbestos exposure both to custodial workers and “building
occupants.” See id. Further, the “EPA has determined that children are physiologically more
vulnerable to asbestos exposures than adults.” Id.
86. Because of its deadly effects, the handling of asbestos is extensively and heavily
regulated and has been for many years. Under federal law, any material containing more than one
percent asbestos is considered to be a regulated “asbestos containing material” (“ACM” or
“RACM”). See 40 C.F.R.§61.141; 15 U.S.C. §2642(4); 29 C.F.R. §1926.1101. EPA and OSHA
have set permissible exposure levels for worker exposure and in public buildings, and have
mandated work standards and engineering controls which require the use of safety equipment such
as respirators and protective clothing where friable asbestos is present in buildings. See 40 C.F.R.
§§61.140-157; 40 C.F.R. §§763-790; 29 C.F.R. §1926.1101; 29 C.F.R. §1910.1001. Friable
asbestos poses more of a health risk than non-friable asbestos because it can be crumbled, thereby
releasing fibers. The dust at issue in this case poses even more of a threat than friable asbestos
because it has already been pulverized into tiny fibers that can easily become airborne and remain
so for many hours if disturbed.
NESHAP Work Practice Standards Under The Clean Air Act Pertaining To Renovation And Demolition Of Buildings
87. As an example of the extensive federal regulation of asbestos, asbestos is regulated
pursuant to section 112 of the Clean Air Act, which controls emissions of hazardous air pollutants
through the implementation of National Emission Standards of Hazardous Air Pollutants
(“NESHAP”). See 40 C.F.R. §§61.140 - 61.157. The asbestos NESHAP regulations prescribe
requirements for industries and operators of certain activities to reduce the emissions of asbestos,
including the demolition and renovation of buildings that contain asbestos. Generally known as
the asbestos NESHAP work practice standards, many of these are applicable to emergency
situations involving asbestos, as explained in EPA’s “Guidelines For Catastrophic Emergency
Situations Involving Asbestos” issued in February 1992. (This guidance was issued to assist EPA
regional offices and State and local agencies in managing potential asbestos hazards resulting
from a catastrophic accident or disaster after three emergencies involving asbestos occurred in
1989). For example, asbestos-containing buildings that are in danger of imminent collapse and
are ordered by the government to be demolished must be wetted down to reduce emissions. See
id.
88. In fact, the NESHAP work practice standards specifically apply to any “emergency
renovation operation,” which is broadly defined as “a renovation operation that was not planned
but results from a sudden, unexpected event that, if not immediately attended to, presents a safety
or public health hazard[.]” See 40 C.F.R. §61.141.
89. Under the NESHAP regulations, regulated ACM must be adequately wet during
removal or renovation. Alternatively, where wetting would result in equipment damage or a safety
hazard, alternative control methods may be used if written approval is obtained, including (a) the
use of local exhaust ventilation systems that capture the dust, and do not produce visible
emissions, or (b) methods that are designed and operated in accordance with the air-cleaning
requirements of the regulations. See 40 C.F.R. §61.152. The regulations provide detailed
requirements for acceptable air-cleaning methods, including the use of either fabric filter
collection devices or HEPA filters certified to be at least 99.97 percent effective for 0.3 micron
particles. See id.
90. The NESHAP regulations further provide that no RACM shall be stripped,
removed, or otherwise handled unless “at least one on-site representative, such as a foreman or
management-level person or other authorized representative, trained in the provisions of this
regulation and the means of complying with them, is present.” 40 C.F.R. §61.145(c)(8). The
required training “shall include as a minimum,” among other things, “control procedures for
removals including, at least, wetting, local exhaust ventilation, negative pressure enclosures,
glove-bag procedures, and High Efficiency Particulate Air (HEPA) filters; waste disposal work
practices; reporting and recordkeeping; and asbestos hazards and worker protection.” Id.
91. The NESHAP work practice standards also provide that asbestos-containing waste
must be adequately wetted at all times after demolition and kept wet during the handling and
loading for transport to a disposal site. See EPA’s Guidelines for Catastrophic Emergency
Situations Involving Asbestos, September 1991; see also 40 C.F.R. §61.150. All asbestos-
containing waste material must be sealed in leak-tight containers, and the containers must be
labeled with specific warning labels specified by OSHA. 40 C.F.R. §61.150(a). Asbestos-
containing waste material must then be processed into non-friable forms (for example, pellets or
other shapes), and deposited in an EPA-approved site that converts asbestos-containing waste
material into asbestos-free material. For all asbestos-containing waste material transported off the
facility site, detailed waste shipment records must be maintained and provided to the EPA. 40
C.F.R. §61.150(d).
OSHA Asbestos Standards Protecting Construction Workers From Asbestos Exposure
92. OSHA asbestos regulations protect most private sector workers and State and local
government employees from the health risks of exposure to asbestos. See 29 C.F.R. §1910.1001
and 29 C.F.R. §1926.1101; 40 C.F.R. §763.85(a) (protecting public employees not covered by
OSHA standards). OSHA rules specify a permissible exposure limit for asbestos, respiratory
protection, work practices, and engineering controls for worker protection. See 29 C.F.R.
§1926.1101. In 2000, the EPA specifically adopted OSHA’s Construction Workers Asbestos
Standards as its own and stated it intended to follow OSHA’s lead in interpreting them. See 40
C.F.R. §763.
93. In response to questions about the proper handling of WTC dust and debris from a
law firm representing Local 78, Asbestos, Lead and Hazardous Waste Laborers, OSHA issued an
“interpretive letter” in January 2002 stating that the WTC dust must be presumed to contain more
than 1% asbestos for ACM and PACM (Presumed Asbestos Containing Material), and confirming
that the WTC demolition and salvage was therefore subject to OSHA’s strict Construction
Asbestos Standard, 29 C.F.R. §1926.1101 (and thus the EPA’s identical standards adopted in
2000). See The OIG Report, pp. 33-34.
94. OSHA’s Construction Asbestos Standard establishes worker protection measures
for all construction and renovation-related work involving asbestos, including “[a]sbestos
spill/emergency cleanup” activities and “transportation, disposal, storage, containment of and
housekeeping activities involving asbestos or products containing asbestos[.]” See 29 C.F.R.
§1926.1101(a)(5)-(6). The regulations mandate work safety practices including: (1) use of HEPA
vacuums to collect all dust and debris containing ACM; (2) use of wet methods or wetting agents
to control employee exposure during asbestos handling, removal, and cleanup, except where
employers demonstrate that the use of wet methods is infeasible due to, for example, safety
hazards; (3) prompt cleanup and disposal of all wastes and debris contaminated with asbestos in
leak-tight containers; (4) local exhaust ventilation equipped with HEPA filter dust collection
systems; (5) enclosure or isolation of processes producing asbestos dust; (6) ventilation of the area
to move contaminated air away from the breathing zone of employees and toward a filtration or
collection device equipped with a HEPA filter; and (7) use of respirators where necessary to
reduce employee exposure to or below the permissible exposure limit. See id. at §1926.1101(g).
95. The OSHA regulations also require employers to provide and require the use of
protective clothing, such as coveralls or similar whole-body clothing, head coverings, gloves, and
foot coverings for any employee exposed to airborne concentrations of asbestos that exceed
certain specified limits. Id. at §1926.1101(i). Employers must also establish a decontamination
area – containing an equipment room, shower area, and changing room – that is connected to the
regulated area for the decontamination of employees. Id. Further, building owners and
employers of potentially exposed employees are required to post warning signs specifically
advising of the “cancer and lung disease hazard” posed by the asbestos-containing material. Id. at
§1926.1101(k).
96. OSHA regulations also require employers to institute a training program for all
employees who are likely to be exposed in excess of specified limits, including all employees
performing maintenance and custodial activities, and employees involved in cleaning up asbestos-
containing dust, waste and debris. Id. at §1926.1101(k)(9). These regulations specifically require
the use of HEPA filtered vacuuming equipment for “housekeeping” activities, and provide that
waste and debris accompanying dust in an area containing visibly deteriorated ACM shall not be
dusted or swept dry, or vacuumed without using a HEPA filter, and shall be promptly cleaned up
and disposed of in leak tight containers. Id. at §1926.1101(l).
97. In addition, the OSHA regulations require employers to institute a medical
surveillance program for all employees who are exposed at or above a permissible exposure limit,
including medical examinations and consultations at regular intervals. The specific content of the
medical examinations is specified, including a physical examination directed to the pulmonary
and gastrointestinal systems. Id. at §1926.1101(m).
98. OSHA Regulation §1926.1101 provides for four categories of construction
activities which correspond to how much asbestos one would typically be exposed to while
engaged in such activity. The protective measures one must take become more stringent as the
potential for asbestos exposure increases. Even the category corresponding to the least risky
exposure levels, janitorial services, mandates asbestos abatement training . See 29 C.F.R.
§1926.1101(g)(10). Moreover, in any case of an emergency - - and the WTC Collapse surely
qualifies as such - - use of an appropriate respirator is mandated. 29 C.F.R. §1926.1101(h)(viii).
OSHA Asbestos Standards Protecting All Occupational Exposure To Asbestos
99. In addition to asbestos construction standards, OSHA asbestos regulations cover
“all occupational exposures to asbestos in all industries covered by the Occupational Safety and
Health Act.” 29 C.F.R. §1910.1001(a). These broad-ranging regulations are similar to OSHA’s
Construction Asbestos Standard, and mandate specific safety and work practice standards
whenever airborne concentrations of asbestos and/or PACM (defined as material presumed to
contain greater than 1% asbestos) are in excess of 1.0 fiber per cubic centimeter of air as an eight
hour time-weighted average (“TWA”), as determined by methods specified in the regulation. Id.
at §1910.1001(c)-(d). Whenever such airborne concentrations are exceeded, employers must
establish regulated areas accessible only to authorized persons, and must provide respirators to all
persons entering a regulated area. Id. at §1910.1001(e). Respirators are specifically required in
the case of “emergencies.” Id. at §1910.1001(g)(iv). In addition, protective work clothing and
equipment is required any time an employee is exposed to asbestos above the TWA, or any time
“the possibility of eye irritation exists.” Id. at §1910.1001(h). Decontamination procedures are
required, including showers and change rooms. Id.
100. These OSHA regulations warn that “housekeeping employees, regardless of
industry designation [i.e. general industry, construction, or shipyard employment], should know
whether building components they maintain may expose them to asbestos.” Id. at §1910.1001(j).
Thus, employers are charged with informing employees performing housekeeping activities in
areas which contain ACM or PACM of the presence, location, and health risks of asbestos-
containing materials. Id. Further, employers must ensure that employees complete asbestos
training programs, including training with respect to appropriate work practices, emergency and
clean-up procedures, and protective equipment to be used. Id. Like the OSHA Asbestos
Construction Standards, section 1910.1001 requires safe cleaning methods, including the use of
HEPA vacuums to collect all dust and debris containing ACM. Id. at §1910.1101(k). Medical
surveillance is also required for all employees who are or will be exposed to airborne
concentrations of fibers of asbestos at or above the TWA limit. Id. at §1910.1101(l).
OSHA’s Asbestos Standards For Construction Workers, The EPA’s
Identical Standards And OSHA’s Asbestos Standards For Other
Occupations Specifically Apply To Emergency Response Operations
101. Significantly, all OSHA asbestos requirements set forth at 29 C.F.R. part 1910 (and
therefore the EPA’s identical regulation 40 C.F.R. part 763) and 29 C.F.R. part 1926 specifically
apply “pursuant to their terms to hazardous waste and emergency response operations.” 29 C.F.R.
§1926.65.
OSHA’s Hazardous Waste Regulation Specifies Additional Safety PrecautionsTo Protect Employees From Exposure To Hazardous Substances Such As Asbestos
102. In addition to the requirements of the OSHA asbestos regulations, 29 C.F.R.
§1926.65 (hereinafter the “OSHA Hazardous Waste Regulation”) specifies additional safety
precautions to protect employees from “exposure or the reasonable possibility for employee
exposure to safety or health hazards,” including in connection with “[e]mergency response
operations for releases of, or substantial threats of, hazardous substances without regard to the
location of the hazard.” Id. at §1926.65(a)(v). The OSHA Hazardous Waste Regulation also
applies to both voluntary clean-up operations and operations required by any governmental body
involving hazardous substances that are conducted at uncontrolled hazardous waste sites. Id. at
§1926.65(a). Also covered are corrective actions involving clean-up at sites covered by the
Resource Conservation and Recovery Act of 1976, and operations involving hazardous wastes that
are conducted at certain treatment, storage, and disposal facilities. Id.
103. “Health hazard,” as defined in the OSHA Hazardous Waste Regulation, includes,
inter alia, “chemicals which are carcinogens, toxic or highly toxic agents...and agents which
damage the lungs, skin, eyes, or mucous membranes.” Id. at §1926.65(2)(3). “Clean-up
operation” is defined as “an operation where hazardous substances are removed, contained,
incinerated, neutralized, stabilized, cleared-up, or in any other manner processed or handled with
the ultimate goal of making the site safer for people or the environment.” Id.
104. Among other requirements, the OSHA Hazardous Waste Regulation requires a
written safety and health program for employees involved in hazardous waste operations, which
must be designed to identify, evaluate, and control safety and health hazards, and provide for
emergency response for hazardous waste operations. Id. at §1926.65(b). The site safety and health
plan must include the requirements and procedures for employee protection, including personal
protective equipment to be used, decontamination procedures, and medical surveillance
requirements. Id. at §1926.65(b)(4). Employees exposed to hazardous substances, health hazards,
or safety hazards must receive extensive training before they are permitted to engage in such
activities. Id. at §1926.65(e). In most cases, medical surveillance programs are required. Id. at
§1926.65(f). In addition, engineering controls, work practices, and personal protective equipment
are required, as are decontamination procedures. Id. at §1926.65(g). Further, under this
regulation, employees engaged in emergency response and exposed to hazardous substances
“presenting an inhalation hazard or potential inhalation hazard shall wear positive pressure self-
contained breathing apparatus while engaged in emergency response.” Id. at §1926.65(q)(3)(iv).
Additional Relevant Federal Regulations Governing Asbestos Removal
105. In addition to the asbestos NESHAP and the OSHA Asbestos Standards, there are
numerous other federal statutes and regulations that provide planning information and/or cleanup
authority applicable to catastrophic emergencies involving asbestos. They include the Asbestos
Hazard Emergency Response Act (AHERA); the Emergency Planning and Community Right-to-
Know Act (EPCRA); and the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (CERCLA). See EPA’s Guidelines, referenced above.
AHERA Regulations
106. In amendments to the Toxic Substances Control Act, 15 U.S.C. §2608, known as
the AHERA, Congress mandated steps schools must take to protect students and school employees
from asbestos exposure. Regulations promulgated under the authority of AHERA require schools
to: (1) inspect for both friable and non-friable asbestos containing materials; (2) prepare
management plans to be submitted to the governor of the state in which the school is located; and
(3) determine and conduct appropriate actions to minimize the risk of exposure. See 40 C.F.R.
§763.93. Plans must be prepared by an accredited management planner and include: (1) the name
and address of each school building and whether it contains friable asbestos, and (2) a blueprint,
diagram or written description that identifies the location and approximate square or linear feet of
asbestos. Id. Thus, a database on asbestos in school buildings already exists in the administrative
offices of school systems in many communities. This database is potentially useful either for
emergency response planning or for identifying asbestos-containing structures following the
occurrence of a catastrophic emergency. Id.
107. AHERA regulations include a clearance test for asbestos, which is to be used by
schools to confirm that an action to “remove, encapsulate, or enclose” asbestos-containing
building material is complete. 40 C.F.R. §763.90(h)(iii)(3).
108. As with the NESHAP and OSHA regulations, the AHERA regulations specify
acceptable methods for cleaning areas where ACM is present or assumed to be present, including
the use of HEPA vacuums or steam cleaning of carpets, HEPA vacuuming or wet cleaning of all
other floors and horizontal surfaces, protective clothing, and mini-enclosures and glove bags
where necessary. See 40 C.F.R. §763.91(c), (d). Areas in which cleaning of ACM is taking place
must be restricted, with signs posted to prevent entry by unauthorized persons. Id. In addition, in
the event of a “major fiber release episode,” air-handling systems must be shut off or modified to
prevent the distribution of fibers to other areas of the building. Id. at §763.91(f)(2)(ii). The
response action for any major fiber release episode must be designed by “persons accredited to
design response actions and conducted by persons accredited to conduct response actions.” Id. at
§763.91(f)(2)(iii). In addition to these requirements, local education agencies must comply with
either the OSHA Asbestos Construction Standard at 29 C.F.R. §1926.1101, or the Asbestos
Worker Protection Rule at 40 C.F.R. §763.120, whichever is applicable. See 40 C.F.R. §763.91
(b).
Emergency Planning And Community Right-To-Know Act (“EPCRA”)
109. Emergency plans developed under EPCRA do not expressly address asbestos, but
the Act requires routine toxic chemical release reporting, and friable asbestos is a reportable
emission. See 40 C.F.R. 372.65. Information collected in this way is entered into a computer file
known as the Toxic Release Inventory System (TRIS) which can be accessed to identify asbestos
sources in SIC codes 20 through 39. TRIS would seem to be a useful database for either
emergency response planning or identifying facilities were friable asbestos might be expected
following an emergency. Id.
CERCLA Regulations
110. Hazardous air pollutants regulated under the Clean Air Act (“CAA”) are also
regulated as hazardous substances under CERCLA. CERCLA provides the authority and funds
for emergency government response to hazardous substance releases into the environment,
including the ambient air, and allows the federal government to recover the costs of responding to
and cleaning up hazardous substance releases. Emissions of reportable quantities (“RQ”s) of
listed substances must be reported to the National Response Center in Washington. The RQ for
asbestos is 1 lb. (0.454 kg) of pure asbestos (40 C.F.R. 302.4). Id.
111. In addition to regulations promulgated by the EPA and OSHA, asbestos is
regulated by the Mine Safety and Health Administration (“MSHA”), and the Department of
Transportation (“DOT”). For example, MSHA regulations specify asbestos exposure limits,
engineering controls, and respiratory protection measures for workers in surface and underground
mines. See 30 C.F.R. §§56.5001-5002, 56.5005 (surface mines); 30 C.F.R.§§57.5001-5002,
57.5005 (underground mines). DOT regulates the transportation of asbestos-containing waste
material, and requires, among other things, waste containment and shipping papers. See 49 C.F.R.
§§171-172.
Federal Regulation Of Lead
112. Lead is regulated as a pollutant under the Clean Air Act, 42 U.S.C. §7407 (1994).
See 40 C.F.R. §50.12 (1997) (establishing national primary and secondary ambient air quality
standards for lead). Lead is highly toxic and affects virtually every system of the body. See
Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in
Federally Owned Residential Property and Housing Receiving Federal Assistance, Part II, 64 Fed.
Reg. 50,140, 50,141 (1999). While lead is harmful to individuals of all ages, “the group most at
risk are fetuses, infants, and children under age 6.” Id. Lead exposure in young children is of
particular concern because children absorb lead more readily than adults and their nervous
systems are particularly vulnerable to the effects of lead. See Lead: Management and Disposal of
Lead-Based Paint Debris, Part II, 63 Fed. Reg. 70,190, 70,192 (1998). Even at low levels, the
neurotoxic effects of lead on children’s developing brains and nervous systems can cause mental
retardation, reading and learning disabilities, hyperactivity, and behavioral problems. See id.
113. According to the EPA, “[c]ommon sources of lead exposure to children include
contaminated dust and paint chips from deteriorating LBP (lead-based paint), in older homes and
renovation activities which disturb LBP.” Id. The federal government has responded to the
problem of exposure to lead-based paint by enacting extensive statutes and regulations governing
lead-based paint abatement, including cleanup procedures and work practice standards for
conducting lead-based paint activities. See, e.g., 15 U.S.C. §§2681-2688 (Residential Lead-Based
Paint Hazard Reduction Act); 24 C.F.R. §35.1350 (H.U.D. safe work practices for lead-paint
hazard evaluation and hazard reduction activities); 29 C.F.R. §1926.62 (OSHA lead standards for
construction).
114. OSHA’s standards for lead in the construction industry are very similar to OSHA’s
Asbestos Standards. Like the asbestos regulations, the OSHA lead regulations (“OSHA Lead
Standards”) apply to “lead contamination/emergency cleanup,” as well as all construction,
renovation, repair, and removal of materials containing lead. 29 C.F.R. §1926.62(a). The OSHA
Lead Standards establish a “permissible exposure limit” (“PEL”) of 50 micrograms per cubic
meter of air averaged over an 8-hour period. Id. at §1926.62(c). Where the employer has any
reason to believe that an employee performing certain tasks may be exposed to lead in excess of
the PEL, and in certain other circumstances, the employer must provide respirators and protective
clothing. See id. at §1926.62(c)-(g).
115. The OSHA Lead Standards also require, among other things, that cleanup of
materials containing lead must be accomplished primarily with vacuums containing HEPA filters.
Id. at §1926.62(h). In addition, employers must provide change areas, showers, and other hygiene
facilities and practices. Id. Medical surveillance must be made available to employees exposed to
lead at or above the PEL. §1926.62(j). Employee training is also required, including training with
respect to the proper use of respirators and work practices. §1926.62(l).
116. In short, given the deadly effects of these hazardous substances, their handling,
reporting, removal, cleanup, and/or remediation are heavily regulated by federal statutes and
regulations. These laws and regulations make clear that the do-it-yourself cleaning procedures
recommended by the EPA and NYCDOH (described below) were unconscionably inadequate and
all but guaranteed that the Class, children in particular, would be subjected to serious health risks.
Given the striking disparity between the extensive, strict requirements mandated by federal law,
and the deficient do-it-yourself guidelines approved by the EPA and New York, it is evident that
Defendants simply abandoned established federal safety requirements, thereby knowingly creating
a risk of serious bodily injury to the members of the Class.
THE EPA MADE MISLEADING PUBLIC STATEMENTS THAT IGNOREDTHE AVAILABLE INFORMATION ON THE ENVIRONMENTAL HAZARDS ARISING FROM WTC DUST AND PUT THE OCCUPANTS OF BUILDINGSIMPACTED BY WTC DUST AT SERIOUS HEALTH RISK
The EPA Reassured The Public That It Would Protect New Yorkers And“ Spare No Expense” To Make Their Schools, Workplaces And Residences Safe
117. In the immediate aftermath of the WTC attacks, then-Administrator Christie Todd
Whitman made reassuring statements indicating that the EPA would fulfill its mandate to take the
lead in the environmental cleanup. She stated publicly in a New York Daily News article three
days after the WTC attacks that “The President has said, ‘Spare no expense, do everything you
need to do to make sure the people of this city and down in Washington are safe as far as the
environment is concerned.’”
118. Whitman was further quoted in the September 14, 2001 issue of Newsweek
assuring the public that the EPA would ensure that the environmental hazards inside buildings
would be removed. “We’re getting in there and testing to make sure things are safe. . . .
Everything will be vacuumed that needs to be, air filters (in area buildings) will be cleaned, we’re
not going to let anybody into a building that isn’t safe. And these buildings will be safe. The
president has made it clear that we are to spare no expense on this one, and get this job done.”
The EPA Repeatedly Made Reassuring Public Statements Which
Were Inconsistent With The Known Hazards Of The Toxic WTC Debris
119. The NCP, which was triggered under ESF #10, pursuant to the Stafford Act,
provides that, with respect to public information: “[w]hen an incident occurs, it is imperative to
give the public prompt, accurate information on the nature of the incident and the actions
underway to mitigate the damage.” 40 C.F.R. §300.155.
120. Despite: a)Whitman’s initial reassurances to New Yorkers, b) the EPA’s leadership
authority to clean up after a declared national disaster, c) the NCP mandate to give truthful
information, and d) the evident severe hazardous conditions in Lower Manhattan and the
surrounding communities, Whitman’s office knowingly or with gross recklessness began issuing a
series of public statements directed to New York City residents, office workers, and school
children which were materially misleading as to the health risks associated with the WTC dust.
121. These false statements exacerbated the environmental hazards created by the WTC
Collapse and put Plaintiffs and the putative Class at further risk.
122. In a September 13, 2001 press release, the EPA assured the public that the air
around “Ground Zero” was relatively safe: “Monitoring and sampling conducted on Tuesday and
Wednesday have been very reassuring about potential exposure of rescue crews and the public to
environmental contaminants. . . . Short-term, low-level exposure of the type that might have been
produced by the collapse of the World Trade Center buildings is unlikely to cause significant
health effects. EPA and OSHA will work closely with rescue and cleanup crews to minimize their
potential exposure, but the general public should be very reassured by initial sampling.” Whitman
is quoted as saying: “EPA is greatly relieved to have learned that there appears to be no significant
levels of asbestos dust in the air in New York City.”
123. This was one of five press releases issued within ten days after September 11,
2001. Four more were issued through the end of December 2001, all of which uniformly
reassured the Plaintiffs and the putative Class about the air quality in Lower Manhattan. EPA’s
basic overriding message was that the public did not need to be concerned about airborne
contaminants caused by the WTC Collapse, i.e., there was no significant threat to human health.
Notably, as explained in the OIG Report, this reassurance “appeared to apply to both indoor and
outdoor air.” See The OIG Report, p. 8.
124. According to the OIG Report, other key statements from EPA press releases
include:
09/16/01 “Our tests show that it is safe for New Yorkers to go back to work in New York’sfinancial district” (quoting Assistant Secretary of Labor for OSHA). “The goodnews continues to be that air samples we have taken have all been at levels thatcause us no concern” (quoting Whitman).
“The Agency is recommending that businesses in the area planning to reopen nextweek take precautions including cleaning air conditioning filters and usingvacuums with appropriate filters to collect dust.”
09/18/01 “We are very encouraged that the results from our monitoring of air quality anddrinking water conditions in both New York and near the Pentagon show that thepublic in these areas is not being exposed to excessive levels of asbestos or otherharmful substances. Given the scope of the tragedy last week, I am glad to reassurethe people of New York and Washington, DC that their air is safe to breath [sic]and the water is safe to drink” (quoting Whitman).
09/21/01 “EPA Disaster Response Update NYC Monitoring Efforts Continue to Show SafeDrinking Water, Air” (press release heading). “New Yorkers and New Jersiansneed not be concerned about environmental issues as they return to their homesand workplaces. Air quality monitoring data in residential areas has beenconsistently reassuring” (quoting Whitman).
10/03/01 “Data Confirms No Significant Public Health Risks; Rescue Crews and NearbyResidents Should Take Appropriate Precautions. . .” (press release sub-heading).
10/30/01 “While we have fortunately not found levels of contaminants that pose a significanthealth risk to the general public, our efforts to monitor the area and keep the publicinformed of our findings have not waned.”
125. These statements are remarkable given that, just one day after the attacks, Dr. Ed
Kilbourne, a senior scientist at the Toxic Substances and Disease Registry warned the EPA against
reoccupation of buildings in Lower Manhattan because of the dangers presented by the hazardous
substances. At such time, one of the first five bulk dust samples analyzed by the EPA from the
WTC site contained the “substantial concentration” of 4% asbestos. Moreover, by September 17th,
the EPA had analyzed 170 bulk dust samples and found that one third showed asbestos levels
higher than EPA’s own so-called 1% danger threshold. See New York Daily News, October 28,
2003; see also Statement of Paul Gilman, Ph.D., Science Advisor to the U.S. Environmental
Protection Agency and Assistant Administrator for Research and Development Before the
Subcommittee on National Security, Emergency Threats and International Relations Committee
on Government Reform U.S. House of Representatives, October 28, 2003.
126. In addition, EPA’s representation in the September 13th press release that the
general public did not need to be concerned about short-term exposure to WTC asbestos was
inconsistent with EPA’s prior position that all asbestos exposure is hazardous to human health.
The EPA’s historical position has been that:
...short-term occupational exposures, have also been shown toincrease the risk of lung cancer and mesothelioma. In addition,there are many documented cases of mesothelioma linked toextremely brief exposure to high concentrations of asbestos or long-term exposure to low concentrations.... EPA has concluded that it isprudent to treat all fiber types as having equivalent biologicalactivity.... Available evidence supports the conclusion that there isno safe level of exposure to asbestos.
(April 25, 1986, Federal Register, Volume 51, Page 15722) (emphasis added).
EPA’s Own Inspector General Criticized The Agency For Its Misstatements On The Air Quality In Lower Manhattan
127. On August 21, 2003, the EPA’s own Office of Inspector General (“OIG”) issued a
Final Evaluation Report (“the OIG Report”) that contains numerous criticisms of the EPA’s
response to the WTC Collapse, and whose findings reverberated throughout the political
establishment and the New York community.
128. According to the OIG Report, information and the analyses of available data did
not support the EPA’s statement made in the September 18, 2001 press release, which quoted the
EPA Administrator as saying the air was “safe” to breathe. Four factors in particular posed
limitations on the conclusions that could be made at that time about air quality: 1) lack of data
results for many pollutants; 2) an absence of health benchmarks for asbestos and other pollutants;
3) imprecise optical asbestos sampling methodologies; and 4) over 25% of the bulk dust samples
collected before September 18th showed the presence of asbestos above the 1% benchmark. As
stated in the OIG Report:
EPA’s early public statement following the collapse of the WTC towers reassuredthe public regarding the safety of the air outside the Ground Zero area. However,when EPA made a September 18 th announcement that the air was “safe” to breathe, it did not have sufficient data and analyses to make such a blanket statement. Atthat time, air monitoring data was lacking for several pollutants of concern,including particulate matter and polychlorinated biphenyls (PCBs). Furthermore,the White House Council on Environmental Quality influenced, through thecollaboration process, the information that EPA communicated to the publicthrough its early press releases when it convinced EPA to add reassuringstatements and delete cautionary ones. An EPA draft risk evaluation completedover a year after the attacks concluded that, after the first few days, ambient airlevels were unlikely to cause short-term or long-term health effects to the generalpopulation. However, because of numerous uncertainties - including the extent ofthe public’s exposure and a lack of health-based benchmarks - a definitive answerto whether the air was safe to breathe may not be settled for years to come.(emphasis added).
129. The EPA’s Office of Research and Development was not able to make health risk
evaluations for exposures in the first few days after the WTC Collapse because of the lack of
monitoring data. For several pollutants of concern, sampling did not begin until September 16th,
and in many cases, the results were not known until after the EPA’s September 18th press release
was issued. EPA was not able to obtain samples and monitor air due to difficulties in access and
security, power supply sources, equipment availability, and analytical capacity. As a result, data
available before September 18, 2001, needed for making conclusions about air quality for
pollutants other than asbestos, was limited. See Draft Evaluation Report entitled Exposure and
Human Health Evaluation of Airborne Pollution From the World Trade Center Disaster.
130. In addition, there were limitations with all three methods used to analyze asbestos
concentrations in the ambient air and bulk dust in Lower Manhattan. These limitations, which
were not noted in EPA’s press releases, restricted EPA’s ability to make definitive assessments
about the health risks posed by asbestos. However, even with these limitations, sufficient data
existed to identify the presence of asbestos in the dust and ambient air, and to warn: 1) that
persons take necessary precautions to avoid inhaling, ingesting or having physical contact with the
dust, and 2) that all dust must be professionally cleaned by individuals with asbestos abatement
training.
131. The misleading statements highlighted within the OIG Report were not the only
ones in which the EPA or Whitman unreasonably minimized the risks to which residents might be
exposed:
• On September 13th, The New York Times reported that “ChristieWhitman said in a telephone interview from Washington that somechemicals that were of theoretical concern in the hours after thecollapse, especially lead, which was legally used in paint in theyears of the building’s construction, had not been detected inquantities high enough to raise alarm. And she stressed that theasbestos levels, too, were a concern only for rescue workers andwork crews who will be involved day after day directly at the site,and not for residents nearby.”
• In a September 14, 2001 press release the EPA and OSHA reportedthat the “EPA has found variable asbestos levels in bulk debris anddust on the ground, but EPA continues to believe that there is nosignificant health risk to the general public in the coming days.Appropriate steps are being taken to clean up this dust and debris.”
• On or about September 18, 2001, as reported in The New YorkTimes, EPA spokesperson Tina Kreisher stated with respect toasbestos levels at or near Ground Zero: “There are small pockets ofasbestos” ... “The concern is there -- not for the city, not forresidents, but definitely for these workers.”
• In an October 3, 2001 press release, the EPA and OSHA jointlystated: “Both agencies have taken hundreds of samples to monitorenvironmental conditions since September 11, and have found noevidence of any significant public health hazard to residents,visitors or workers beyond the immediate World Trade Centerarea.” In the same October 3, 2001 press release Whitmanstated,“Our data show that contaminant levels are low ornonexistent, and are generally confined to the Trade Center site.There is no need for concern among the general public, butresidents and business owners should follow recommendedprocedures for cleaning up homes and businesses if dust hasentered.”
• On May 9, 2002, the New York Daily News reported with respect tothe plan to offer cleaning of apartments, “Despite the about face, theEPA and city environmental officials maintained yesterday that nohealth emergency exists. They said the sweeping new program isbeing carried out largely to ease fears of those who live nearGround Zero.” Within the same article, Jane Kenny, EPA regionaladministrator, was quoted to say: “While the scientific data aboutany immediate health risks from indoor air is very reassuring,people should not have to live with uncertainty about their futures.”“There is no emergency here.”
• On May 15, 2002 The Associated Press issued a release stating:“EPA officials say the program is designed mainly to reassurejittery residents that their homes are safe.” Kenny was quoted asfollows: “What the scientists have been telling us is, ‘very low risk,even over a long period of time.’ Really what we’re trying to do isto make people in Lower Manhattan feel that they’re living in agood place and that they’re safe in their homes.”
• On December 27, 2002, The Associated Press reported that, inconnection with the deadline for residents to sign up for the EPA’scleanup program, the EPA publicly stated that, while rescueworkers and others exposed to high concentrations of pollutionimmediately after the WTC attack are likely to develop chronicillness, “[p]ersons in the surrounding community were unlikely tosuffer short-term or long-term adverse health effects.”
As in the case of the EPA statements which the OIG Report criticized, in each of these instances
the overriding message to the Plaintiffs and putative Class is one of reassurance. But such a
message lacked any reasonable scientific basis. What should have been disclosed is that the dust
must be presumed to contain asbestos, it must be professionally abated, and that every effort must
be made to avoid inhalation, ingestion and hard contact with the dust, particularly in the case of
children and other at-risk segments of the population. Further, the EPA should have disclosed that
other contaminants besides asbestos were contained in the dust although the potential health
impacts of exposure to such contaminants cannot or may not presently be quantified. The EPA’s
press releases did not provide guidance on how to clean indoor spaces or the potential health
effects of WTC dust.
The EPA Misleadingly Treated The 1% Asbestos Standard, Which TriggersThe Need For Professional Asbestos Removal Under OSHA and EPARegulations As A Health Standard, Applicable To The Pulverized WTC Asbestos
132. Repeatedly, the EPA’s public statements referenced the fact that 1% of asbestos or
above constitutes “asbestos material” or “asbestos containing material.” For instance:
• In the September 13, 2001 press release the EPA announced “Airsamples taken on September 13th inside buildings in New York’sfinancial district were negative for asbestos. Debris samplescollected outside buildings on cars and other surfaces containedsmall percentages of asbestos, ranging from 2.1 to 3.3% slightlyabove the 1 percent trigger of defining asbestos material.
• A Newsweek website exclusive report dated September 14, 2001stated: “Of the 24 dust samples the agency took on the first two daysof the chaos, many contained asbestos, but only one registeredabove acceptable maximums, says EPA spokesperson TinaKreisher. That sample, taken from very near the epicenter of thedisaster in Manhattan’s financial district, contained 4.5 percentasbestos fibers. It was taken as agents fled the collapsing buildingson Tuesday. Dust samples from Thursday, she says, also showedelevated levels of 2.1 percent to 3.3 percent. A level of 1 percent orless is considered safe.”
• According to a September 16, 2001 Newsday article, Whitmanreportedly stated on the previous day with respect to asbestos inWTC dust that “there is no reason for concern.” The article statedthat according to Whitman, “the latest measurement of debris andair at ground zero and in areas tested in the financial district showedthe amount of asbestos was at or below background levels, whichshe defined as 1 percent or less of the total sample.”
However, left undisclosed from all such public statements were the material facts that the 1%
Standard is not a health-based standard, but rather pertains to whether solid asbestos building
materials (and not dust containing pulverized asbestos) should be removed professionally and that
levels of less than 1% asbestos can still pose a danger. Tellingly, a September 19, 2001 e-mail
from an EPA Branch Chief, Tom Ripp, who has testified as an asbestos expert for the EPA,
warned that:
“Additionally, 1% asbestos in a material is not a safe level of asbestos [emphasis in
original]...one-half percent asbestos-containing material (ACM) could be just as
hazardous as 20% ACM depending on the condition of the material and how it’s
handled.”
OIG Report, page 12. Here, the interior dust was in a particularly hazardous condition, having
been pulverized into small fibers, and confined to indoor spaces so that neither wind nor rain
would remove it. Further, it was in a position to become airborne for hours if disturbed by routine
household activities.
133. Likewise, Christopher Weis, the EPA’s Senor Toxicologist and Science Support
Coordinator for the Libby Asbestos Site explained in a December 20, 2001 memorandum that:
It is important to recognize that occupational exposure standards for asbestos arenot generally applicable or protective for residents or workers in non-asbestosenvironments because occupational standards are intended to protect individualswho a) are fully aware of the hazards of the occupational environment, b) havespecific training and access to protective equipment such as respirators and/orprotective clothing and, c) actively participate in medical monitoring (USEPA
1995). None of these conditions apply to residents or to workers at typicalcommercial establishments. Thus, simple compliance with the OSHA standards isnot evidence that exposure levels are acceptable in a home or in a non-asbestosworkplace. Indeed, risks to residents or workers occur at exposure levelssubstantially below the OSHA workplace standards. ...
The EPA Failed To Publicly Disclose That The WTC Dust Must BePresumed To Be Asbestos Containing And Therefore, Under ApplicableFederal Guidelines, Must Be Professionally Abated
134. The EPA knew at the time of the WTC Collapse that many hundreds of tons of
asbestos had been used for insulation in the construction of the WTC Towers. Thus, it had more
than ample reason to know that pursuant to its own regulation 40 C.F.R. 763 (which specifically
applies to emergency situations) the dust had to be presumed to contain asbestos (“PACM”) and
that it must only be abated professionally. Nevertheless, the material facts that it should be
presumed to contain asbestos and must be professionally abated were never disclosed to the
public. Underscoring the need to assume the dust contained asbestos, about 33% of the bulk dust
samples that the EPA had collected and analyzed by September 18th showed the presence of
asbestos above the false 1% Standard used by the EPA to indicate significant risk.
The EPA Materially Downplayed And Sought To Minimize Its Own
Actions With Respect To Cleanup At Its Headquarters At 290 Broadway
135. On January 18, 2002, The New York Times reported on an interview it had
conducted with Jane M. Kenny, EPA’s New York Regional Administrator. The article stated:
She [Kenny] said the federal government, acting on advice that the city gave to alllandlords, tested the air in some of its Lower Manhattan buildings in September,including the agency’s offices at 290 Broadway, and did some cleaning as a result.She stressed that the work was done by the government as a landlord, not as anenvironmental agency.
The above information provided by Ms. Kenny as reported in The New York Times was
materially misleading in that it downplayed the stringency of the actions which had actually been
taken to decontaminate the EPA’s own building. First, the “testing” it performed was by means of
both PLM and transmission electron microscopy (“TEM”). TEM is a more sophisticated method
to test for the presence of asbestos in dust than PLM. For the rest of Lower Manhattan, the EPA
utilized PLM testing. Second, the EPA tested the indoor dust at 290 Broadway. It never offered
such testing in Lower Manhattan residences, schools and businesses. Third, it tested not just air
but dust, and it abated its building based on positive dust tests, but negative air tests. Fourth, in
contrast to the vague reference to “some cleaning”, the entire building was professionally and
systematically cleaned for hazardous materials, a process which displaced all EPA personnel for a
week, and one which was flatly inconsistent with the far less rigorous do-it-yourself methods the
City was advising for residents as discussed herein. Had the EPA statements as to testing for and
abating hazardous materials at 290 Broadway been honest and accurate, and had they been
disclosed to Plaintiffs and the putative Class back when the cleaning occurred in September 2001,
such statements would have served as a highly useful, influential guide to the steps residents and
business owners should take to ensure their safety. Instead, the EPA chose not to disclose the fact
of such cleaning until months after the WTC Collapse, and, even then, chose to minimize the steps
it had taken. Tellingly, 290 Broadway is beyond the geographical area covered by the EPA’s
cleanup program initiated in mid-2002.
THE EPA FAILED TO ASSUME LEAD RESPONSIBILITY FOR THE CLEANUPOF BUILDING INTERIORS DESPITE THE FACT THAT IT HAD THE RIGHT AND THE LEGAL OBLIGATION TO DO SO UNDER FEDERAL LAWINCLUDING PRESIDENTIAL DECISION DIRECTIVE 62
Presidential Decision Directive 62 (“PDD 62") Mandates That TheEPA Take Lead Responsibility For Cleanup Of Building InteriorsIn The Case Of A Terrorist Attack
136. Besides the overall lead role assigned to the EPA under the FRP and ESF #10
pursuant to the Stafford Act that flowed from the declaration of a national disaster, the EPA was
specifically mandated to cleanup building interiors following the WTC attack. The mandate arises
from the provisions of PDD 62, which was signed by President Clinton in 1998, is still in effect,
and which assigns to the EPA the lead responsibility for cleaning up buildings and other sites
contaminated by chemical or biological agents as a result of terrorism.
137. Defendant Whitman herself acknowledged this mandate before a Senate
Subcommittee in November 2001. On November 28, 2001, then-EPA Administrator Whitman
outlined the EPA’s role in counter-terrorism activities before the Senate Appropriations
Subcommittee on VA, HUD, and Independent Agencies. Administrator Whitman testified that:
Under the provisions of PDD 62, signed by President Clinton in1998, the EPA is assigned lead responsibility for cleaning upbuildings and other sites contaminated by chemical orbiological agents as a result of an act of terrorism. Thisresponsibility draws on our decades of experience in cleaning upsites contaminated by toxins through prior practices or accidents.
(See Whitman, Christine Todd, testimony before the U.S. Senate Appropriations Committee,
Subcommittee on VA, HUD, and Independent Agencies, November 28, 2001) (emphasis added).
Administrator Whitman went on to state that: “This role is a natural fit for EPA’s on-scene
coordinators, managers who are experienced in assessing contamination in structures,” and who
“have considerable experience at sorting out hazards, quantifying risks, planning and
implementing emergency cleanups, and coordinating among other agencies, state and local
government, and the private sector.” Id.
138. Similarly, in testimony given on January 6, 2003, then-EPA Assistant
Administrator Marianne L. Horinko also confirmed that, pursuant to PDD 62, EPA was
responsible for cleanup of inside buildings in the event of terrorism or a disaster:
Q. Doesn’t PDD 62 mandate that EPA be the lead?
A. Yes, EPA does have the lead under ESF 10.
Q. And what does ESF stand for?
A. Emergency support function. Under the Federal response plan FEMA has
the lead overall in coordinating Federal deployment in emergencies, and
then there are a number of specific emergency support functions of which
we have the lead in the environmental response.
Q. And since we [EPA] have the lead in the environmental response, are we
the lead decision-maker on cleaning up the interiors of the buildings?
[Objection made.]
A. All decisions are made at the site by the incident commander. EPA is the
lead expert on environmental cleanup.
Q. Is that consistent with Presidential Decision Directive 62?
A. Yes.* * *
Q. Who in EPA, who is the individual who has the ultimate lead for the
cleanup of the interiors? Is it you?
A. Ultimately I suppose it would be Governor Whitman as the administrator.
Since I do report to her, I am certainly the lead on emergency response.
Q. You are the lead on emergency response?
A. Yes.
Q. Is cleaning up the interiors an emergency response?
A. Yes, it is. I believe so. To the best of my knowledge, yes, it is.
Q. So then you have the lead, is that correct?
A. Yes.
See deposition transcript, pp. 5-7, January 6, 2003, in Kaufman v. United States Environmental
Protection Agency, Case No. 2002-CAA-00022 (U.S. Dept. Labor, Office of ALJ).
139. PDD 62 is consistent with the fact that, in cases where terrorism results in the
release of hazardous substances, there will realistically be no party to hold responsible for
cleanup. This contrasts with releases of hazardous substances arising from industrial activity
(“corporate polluters”). PDD 62 is also consistent with the fact that terroristic acts may likely
occur in densely-populated areas where cleanups become more complicated and the need for the
infrastructure, experience and resources which only the federal government possesses is
particularly urgent.
140. The mandate that the EPA should be the lead agency for responding to indoor
contamination has been confirmed since September 11, 2001. The July 2002 National Strategy for
Homeland Security, issued by the Department of Homeland Security, states that:
After a major incident, the Environmental Protection Agency willbe responsible for decontamination of affected buildings andneighborhoods and providing advice and assistance to public healthauthorities in determining when it is safe to return to these areas.
Under The National Contingency Plan, PDD 62 Must Be Followed
141. The laws which were activated by the President’s declaration of a major disaster
underscore the applicability of PDD 62 to the WTC Collapse. Under the Stafford Act, 42 U.S.C.
Section 5121 et seq. (2000), federal assistance is triggered by a Presidential declaration of a major
disaster as was done here. The Federal Response Plan establishes the process and structure for the
Federal Government to respond to the consequences of a such disaster. The EPA as the
designated lead agency for Emergency Support Function #10 “Hazardous Materials” is to provide
support to local governments responding to the actual or potential discharge and/or release of
hazardous materials following a major disaster.
142. When the FRP and Emergency Support Function #10: Hazardous Materials are in
effect, as they were in the case of the WTC Collapse, the NCP is necessarily activated and thus
must be adhered to as well. See ESF #10 p. 10-2, dated April 1999. Further, “the NCP applies to
and is in effect when the FRP and some or all its Emergency Support Functions are activated.” 40
C.F.R. §300.3(d). Therefore, if the EPA is not acting pursuant to the NCP, it is in clear violation
of the law.
143. On April 12, 2002, at a public hearing on air quality issues in Lower Manhattan
post-9/11, Kathleen Callahan, Director of the EPA Region 2's Division of Environmental
Planning and Protection, testified that the EPA was not following the NCP with respect to the post-
9/11 cleanup.
144. Under the NCP, the EPA must serve as the lead agency, and thus bear
responsibility for, inland releases of hazardous substances. Pursuant to agreement with a State
and political subdivision thereof, the EPA can sometimes assign such lead responsibility for a
portion or all of a removal activity. See 40 C.F.R. §35.6205. It cannot do so, however, if a
Presidential Directive dictates otherwise, which is the case here. In particular, NCP regulation 40
C.F.R. §300.170, entitled Federal Agency Participation, states, in pertinent part, “Federal agencies
listed in §300.175 [which includes the EPA] have duties established by statute, executive order, or
Presidential directive which may apply to federal response actions following, or in prevention of,
the discharge of oil or release of a hazardous substance, pollutant or contaminant.” (emphasis
added).
145. The United States Government Interagency Domestic Terrorism Concept of
Operations Plan (“CONPLAN”) is a Federal signatory plan among six federal departments,
including the EPA, to provide guidance to Federal, State and local agencies concerning how the
Federal government would respond to a terrorist attack in a manner consistent with PDD 39 and
62. It applies “to all threats or acts of terrorism within the United States.” CONPLAN makes it
clear that, consistent with 40 C.F.R. §§300.170 and 300.175 of the NCP, the NCP is modified by
PDD 62 such that delegation of authority for cleanup of buildings to the City was impermissible
and unlawful. The relevant portion of CONPLAN provides:
A. Mission
The overall Lead Federal Agency, in conjunction with the lead
agencies for crisis and consequences management response, and
State and local authorities where appropriate, will notify, activate,
deploy and employ Federal resources in response to a threat or act
of terrorism. Operations will be conducted in accordance with
statutory authorities and applicable plans and procedures, as
modified by the policy guidelines established in PDD 39 and PDD
62.
CONPLAN, Section IV.A. The CONPLAN remains in effect until the crisis is resolved. Id.
146. Whitman was well aware of the CONPLAN. On May 9, 2001 she testified to a
Congressional subcommittee that she and the EPA had “worked closely” with other federal
agencies to develop it. She was also well aware of PDD 62 at that time, noting in her testimony
that PDD 62 specifies a role for the EPA in counter-terrorism activities. On October 10, 2001
Horinko also demonstrated knowledge of CONPLAN before members of Congress.
Even In The Absence Of PDD 62, Under The NCP It Was Unlawful For The EPATo Delegate Lead Authority For The Interior Cleanup To New York City
147. Pursuant to 40 C.F.R. §35.6205, the EPA can only give lead responsibility to a
political subdivision of a State if the State and the EPA both agree to do so and only if such
subdivision has the “necessary capabilities” to take on lead responsibility. Given the City’s lack
of funds and its expressed intent to leave the cleaning up to the public, it was beyond question that
after 9/11 the City lacked the capabilities necessary to execute an interior cleanup of Lower
Manhattan and Brooklyn.
The EPA Cannot Delegate Away Complete Responsibility Under The NCP
148. The EPA cannot delegate complete responsibility in any event. See 40 C.F.R.
§300.175. For instance, as administrator of the NCP, the EPA has the responsibility through On-
Scene Coordinators (“OSC”) to direct response efforts and coordinate all other efforts at the scene
of a release. 40 C.F.R. §300.135(a). Nothing in the NCP limits this responsibility to outdoor
environments.
149. Reinforcing the conclusion that even if the City took the lead administering an
interior cleanup, the EPA was not relieved of its responsibility in this regard, the EPA’s own
website states, “The procedure for determining the lead agency is clearly defined so there is no
confusion about who is in charge during a response. The OSC determines the status of the local
response and monitors the situation to determine whether, or how much, federal involvement is
necessary. It is the OSC’s job to ensure that the cleanup, whether accomplished by industry, local,
state, or federal officials, is appropriate, timely, and minimizes human and environmental
damage.” (See U.S. EPA National Response System: How the SystemWorks,
www.epa.gov/oerrpage/superfund/programs/er/nrs/nrsworks.htm) (emphasis added).
The EPA Had The Authority To Address Indoor Contamination
150. The EPA has the clear authority to respond to the release of hazardous substances
that may present an imminent and substantial danger to public health. See 42 U.S.C. 9604. The
NCP lays out specific procedures and guidelines, including the designation of an OSC, who is
responsible for directing response efforts and coordinating all other efforts at the scene of a
discharge or release. See 40 C.F.R. §300.135(a). Under the NCP, there is no delineation between
indoor and outdoor air, particularly where there is a threat to public health. In fact, under the
NCP, the EPA is authorized to “enter any vessel, facility, establishment or other place, property, or
location. . . and conduct, complete, operate, and maintain any response actions authorized by
CERCLA or these regulations.” 40 C.F.R. §300.400(d). A facility is defined in pertinent part as
any “building or structure” where “a hazardous substance has been deposited ... or otherwise
come to be located.” 40 C.F.R. §300.5. In other words, a response under the NCP is not limited
to outdoor air, and the EPA has specific authority to remediate indoor environments. Further, it
can even temporarily evacuate and house individuals threatened by the hazardous waste. Id. (See
definition of term “remove”- 40 C.F.R. §300.415).
151. Robert Martin, former National Ombudsman of EPA, wrote in March 2002:
“During the last thirty years as a leader of the National Response System, EPA has used the
National Contingency Plan as the framework to perform indoor air testing and remediation where
there have been releases of hazardous material into homes, schools, and/or offices throughout the
United States. EPA has not undertaken such activities, however, in response to the terrorist attack
of September 11th in New York City.” See Memo from Robert J. Martin to Jane M. Kenny, March
27, 2002, regarding National Ombudsman World Trade Center Hazardous Waste Case.
152. The EPA’s authority to enter private buildings to clean WTC dust from building
interiors under the Stafford Act pursuant to Sections 403 and 407 was affirmed by FEMA in the
December 2002 Report of its Office of Inspector General. See FEMA Report, p. 24.
Even If The EPA Could Have Delegated Authority To New York City Under40 C.F.R. §35.6205, Such Authority Should Have Been Quickly Revoked Since The City Was Incapable Of Handling The Situation
153. When the City told the EPA it would be leaving it up to individuals to clean
building interiors, the EPA should have immediately revoked any authority for interior cleanup
which the City had been given. The City’s decision to endorse cleaning techniques other than
professional abatement made its inability to carry out the task only that much more glaring.
Revocation of the delegation to the City would have been consistent with the principle embodied
in the NCP, and throughout EPA statutes and regulations as well, that state regulations governing
disposal of hazardous waste can be relied upon only if they are more stringent than applicable or
relevant federal requirements. See 40 C.F.R. §§300.5; 300.400(a)(2)(g)(4).
Even In The Absence Of The NCP, The EPA Could Not LawfullyDelegate Away Responsibility For Indoor Air
154. Assuming, arguendo, that the FRP is the only plan in effect (which is not the case),
federal assistance is coordinated along thirteen Emergency Support Functions. The EPA is the
primary agency responsible for coordinating Emergency Support Function #10: Hazardous
Materials. As the primary agency, the EPA has “operational responsibility” for orchestrating
federal agency support and managing mission assignments in this area. Ibid. The EPA has no
legal basis to shirk the bulk of its responsibility in this regard by leaving indoor cleanup to the
City. In fact, EPA Regional II Administrator Jane Kenny testified before the U.S. Senate that:
“Acting on FEMA’s mission assignments, EPA is the lead agency for hazardous waste disposal.”
(See “Official Transcript,” U.S. Senate Committee on Environment and Public Works,
Subcommittee on Clean Air, Wetlands, and Climate Change, New York, NY. Testimony of Jane
M. Kenny, Regional Administrator, U.S. EPA Region II, February 11, 2002, p. 64).
The EPA Made Material Misstatements In Which It Disclaimed Authority And Responsibility For Cleanup Of Lower Manhattan Building Interiors
155. Despite the facts set forth above that the EPA had both the authority and the
mandate to take the lead on the cleanup of building interiors, it repeatedly, and with knowledge or
recklessness, misstated these material facts. For example:
• With regard to the EPA’s delegation of indoor cleanup to the Cityof New York, an EPA spokesperson stated, on January 11, 2002,that “. . . indoor air is beyond EPA’s jurisdiction.” (See Lyman,Francesca, “Yearning to Breathe in a Toxic Zone: Four Months on,WTC Attacks Still Haunting New Yorkers – And Their Health,”MSNBC, January 11, 2002).
• Also in January, 2002, an EPA Region II spokesperson stated theEPA had taken no responsibility for indoor air quality and was, infact, satisfied by the City’s work. That spokesperson stated, “TheEPA’s job was to monitor outdoor air. Monitoring indoors – thatwasn’t our job. That’s what the city took care of.” She added “thatshe felt the city did a good job of testing and monitoring indoor air.”(See Rogers, Josh, “Nadler says EPA is Passing the BuckDowntown,” Downtown Express, January 22, 2002).
• An EPA letter sent to Manhattan residents after 9/11 stated, interalia: The EPA does not have jurisdiction or oversight of indoor airquality or indoor cleanups.
• In an article contained in The St. Louis Post - Dispatch on January13, 2002 Bonnie Bellow, an EPA Region II spokeswoman stated:“That’s just not our job, and we have no policies or procedures fordoing that type of testing,” ... “We’ve never had to worry aboutasbestos in houses before.”
• In a February 22, 2002 letter to Congressman JerroldNadler, Defendant Whitman stated that “under theFederal Response Plan local governments have primary
responsibility for responding to an event.” Further, inthe wake of a terrorist attack, “the current practice is tovest responsibility in local and state governments forindoor environmental conditions.”
• On April 16, 2002 on “The News Hour With Jim Lehrer” Whitmanstated with respect to the interior cleanup: “If there is an area wherethere is a ‘hole’, this is where it is, in response, because it’s just alittle murky here as to who has the responsibility, who isresponsible for the cleanup.”
THE EPA FAILED TO COMPLY WITH ITS LEGAL RESPONSIBILITY,AND ALLOWS THE CITY OF NEW YORK TO HANDLE INDOOR AIR QUALITY
156. Although the EPA was charged with lead responsibility for the cleanup of
hazardous substances resulting from this event, the EPA allowed the City of New York to handle
indoor air quality. It did so even though the EPA was well aware that the City does not have the
ability, knowledge, experience, or resources to handle the situation. Indeed, the FRP places
responsibility for cleanup of hazardous substances on the EPA and states that it should operate
under the assumption that “states and localities will be overwhelmed by the extent of the response
effort” required to assess, clean up, and dispose of hazardous materials released in the event of a
federal emergency. See Federal Response Plan, January 2003; Federal Response Plan, April
1999.
157. The City of New York was not capable of handling this situation, and, in fact, did
not do the job properly. At a U.S. Senate Subcommittee field hearing on February 11, 2002, New
York City Department of Environmental Protection (NYC DEP) Commissioner Joel Miele
admitted that the DEP was not capable of handling the job when he noted that available hazardous
materials staff was “. . .adequate except in the case of a catastrophic event such as occurred here,”
and that the agency is primarily a “water and sewer agency.” (See Miele, Joel (Commissioner,
NYC DEP) “Testimony before the United Senate Subcommittee on Clean Air, Wetlands, and
Climate Change,” Feb. 11, 2002).
158. Being ill-equipped to handle the cleanup, the City, with the EPA’s knowledge and
consent, placed the burden for indoor air matters such as testing and remediation on individual
building owners for indoor public spaces, and on tenants for indoor private spaces. According to
New York City officials, the issue of funding the cleanup of privately owned buildings was
discussed with FEMA and EPA; and the initial federal position was that the Stafford Act (the
implementing statute for the FRP) did not provide direct funding to New York City for this
cleanup. New York City officials said that during this discussion they informed the federal
agencies that building owners would be responsible for funding the cleanup of their buildings and
the federal agencies agreed with this position. Under this arrangement, owners of rental units
were responsible for cleaning apartment walls, ceilings, and floors; common areas, such as
hallways and lobbies; and heating, ventilation, and air conditioning (HVAC) systems, when
deemed necessary as explained in guidance provided by New York City. Renters were
responsible for cleaning personal belongings. In resident-owned condominiums, residents were
responsible for cleaning their units, while building owners were responsible for cleaning common
areas and HVAC systems.
159. Once the City placed the burden for testing and remediating indoor private spaces
on individual tenants, the EPA and the City referred individuals for advice (though no other
assistance) to the New York City Department of Health (NYCDOH) for recommendations on
reoccupying homes and businesses. Consistently deferring to the NYCDOH, the EPA referred
residents to these recommendations on its website and in public press releases, which state that
“based on the asbestos test results received thus far, there are no significant health risks.” (See
“Recommendation for People Re-Occupying Commercial Buildings and Residents Re-Entering
Their Homes,” (www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html), printed on January 24, 2002,
3:42 p.m.). On December 11, 2001, EPA Region II Acting Deputy Regional Administrator
Kathleen Callahan reiterated that downtown tenants should look to the DOH guidelines for
cleaning their indoor spaces.
160. The NYCDOH do-it-yourself cleanup guidelines were totally inadequate to
properly clean up the hazardous substances present in private residences, and to protect the
residents performing the cleanup from serious health risks.
The EPA Endorsed Do-It-Yourself Cleanup Guidelines Which Were Grossly Inadequate
161. The guidelines, made public on September 17, 2001, which New York City
recommended and which the EPA endorsed, are as follows:
Recommendations for People Re-Occupying Commercial Buildings and Residents Re-Entering Their Homes
What steps should I take upon returning to my workplace or home?If you were evacuated from a residence or workplace south of Warren Street, westof Broadway, and north of Exchange Street, and have been approved to resumetenancy by your building manager, you are advised to wear a dust mask uponentering this area to decrease the possibility of dust inhalation and throat irritation.Outside these boundaries, masks are not necessary, but may be worn for your owncomfort. If there is dust present indoors, it should not be necessary to wear thismask if you follow the cleaning procedures detailed below. (emphasis added).
In a workplace, speak to your supervisor to see if there are special startup andcleaning procedures. In very dusty places, clean-up may be necessary beforeequipment can be restarted. Following the cleaning procedures discussed below.In your home, you should first make sure that conditions are safe. You shouldenter your home dressed in a long sleeve shirt and pants, and with closed shoes. . .
Follow the cleaning procedures discussed below.
I have heard that asbestos was released from the collapse of the World TradeCenter. What are the health effects of asbestos?
Because some asbestos was used in the building of the World Trade Center, City,State, and Federal agencies have been collecting dust, debris, and air samples sincethe World Trade Center collapse. As expected, some asbestos was found in a few
of the dust and debris samples taken from the blast site and individuals working inthis areas have been advised to take precautions. However, most of the air samplestaken have been below levels of concern. Based on the asbestos test resultsreceived thus far, there are no significant health risks to occupants in the affectedarea or to the general public.
In general, asbestos-related lung disease results only from intense asbestosexposure experienced over a period of many years, primarily as a consequence ofoccupational exposures. The risk of developing an asbestos-related illnessfollowing an exposure of short duration, even to high levels, is extremely low. . .
How should I clean the dust in my apartment when I move back in?
The best way to remove dust is to use a wet rag or wet mop. Sweeping with a drybroom is not recommended because it can make dust airborne again. Where dust isthick, you can directly wet the dust with water, and remove it with wet rags andmops. Dirty rags can be rinsed under running water, being careful to not leave dustin the sink to dry. When done, used rags and mops should be put in plastic bagswhile they are still wet and bags should be sealed and discarded. Cloth rags shouldbe washed separately from other laundry. Wash heavily soiled or dusty clothing orlinens twice. Remove lint from washing machines and filters in the dryers witheach laundry load. Rags should not be allowed to dry out before bagging anddisposal or washing.
To reduce dust recirculation, the Health Department recommends using HEPA(high efficiency particulate air) filtration vacuums when cleaning up apartments, ifpossible. If a HEPA vacuum is not available, it is recommended that HEPA bagsor dust allergen bags be used with your regular vacuum. If these options are notavailable, wetting down the dust and removing it as described above isrecommended.
Carpets and upholstery can be shampooed and then vacuumed.
If you apartment is very dusty, you should wash or HEPA vacuum your curtains. Ifcurtains need to be taken down, taken them down slowly to keep dust fromcirculating in the air.
To clean plants, rinse leaves with water. Pets can be washed with running waterfrom a hose or faucet; their paws should be wiped to avoid tracking dust inside thehome.
How can I remove dust from the air?
Air purifiers may help reduce indoor dust levels. HEPA air purifiers are superiorto other models in filtering the smallest particles. Air purifiers are only useful forremoving dust from the air. They will not remove dust already deposited on floors,shelves, upholstery or rugs. Keep windows closed when using an air purifier.
. . .NYCDOH, 9/17/01, http://www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html
162. The EPA never attempted to get citizens to take any precautions other than these
unsafe do-it-yourself NYCDOH guidelines. The guidelines state that even dust masks are
unnecessary for the heaviest layers of dust. Clearly, dusting the residence with a wet rag is not
effective in removing hazardous substances, and HEPA (which stands for High Efficiency
Particulate Air filter) vacuuming is ineffective in removing asbestos from carpets, fabric, and
other soft materials. Moreover, although EPA’s conceded position with respect to cleaning was to
have it done professionally, as is consistent with EPA and OSHA regulations, the EPA did not
instruct residents to do so. Also, Defendant Whitman acknowledged to Ray Suarez on The
NewsHour With Jim Lehrer on April 16, 2002 that professional cleaning was mandated for an
adequate cleaning. Nevertheless, in these guidelines, the EPA did not advise citizens to use
professional abatement or to presume that the dust contained asbestos or to use a respirator or
even to keep children out of any room where dust may have been disturbed during cleanup or
otherwise. The EPA also never told citizens that the guidelines were meant to apply only to
spaces that had been pre-cleaned or tested for asbestos or other toxic substances by landlords. It
was only after the guidelines were widely criticized by health professionals and the press that the
EPA later asserted disingenuously that it had provided such advice. There is no written evidence
supporting EPA’s assertion that it had directed citizens to assume dust contained asbestos, to have
it professionally abated and to keep children away from it at all costs, and it is not true. Moreover,
the EPA did not urge New York to use the most up-to-date method of asbestos testing – a method
employing electron microscopes that the EPA has used elsewhere – most notably at its own
headquarters at 290 Broadway. The City instead advised building owners to use only an older
technique, in which testers search for contaminants using polarized-light microscopes. The
electron microscopes can detect asbestos fibers that light scopes do not reveal. See Carlton, Jim,
“Buck-Passing Delayed EPA in 9/11 Cleanup”, The Wall Street Journal, May 9, 2002.
163. In January 2002, the Assistant Secretary for Occupational Safety and Health
(“OSHA”), John L. Henshaw, sent an interpretation letter which set forth OSHA’s determinations
as to the OSHA regulations applicable to the settled dust produced by the collapse of the WTC.
He concluded:
[I]n that the materials containing asbestos were used in theconstruction of the Twin Towers, the settled dust from collapsemust be presumed to contain asbestos. Therefore, the use ofTransmission Electron Microscopy (TEM) is not necessary in orderto establish that the applicable provisions of the ConstructionAsbestos standard 29
CFR 1926.1101 apply during the demolition or salvage of theaffected structure.
This letter was provided to the EPA on February 21, 2002 at the EPA Ombudsman hearings. As
noted above, 29 C.F.R. 1926.1101 (hereinafter the “OSHA Asbestos Standards”), referenced by
Henshaw, regulates all asbestos exposure on work sites and includes, but is not limited to,
demolition, removal, repair, renovation or disposal of materials containing asbestos, as well as
“housekeeping activities” involving such materials and any emergency cleanup thereof. See
§1926.1101(a). In 2000, the EPA specifically adopted the OSHA Asbestos Standards as its own
and stated it intended to follow OSHA’s lead in interpreting it. See 40 C.F.R. Part 763. Notably,
the Rule prescribes stringent rules to which employers must adhere, in order to protect employees
from potential asbestos exposure. Among other things, use of an appropriate respirator is
mandated in the case of an emergency involving cleanup of materials containing asbestos.
Further, the regulation provides than anyone involved in cleaning up dust, waste and debris
containing asbestos must first receive training with respect thereto under 40 C.F.R. 763.92(a)(2).
Clearly, these regulations were not followed when EPA and NYCDOH recommended the do-it-
yourself guidelines to residents of Lower Manhattan.
164. The guidelines recommended by EPA and NYCDOH were completely ineffective
and inadequate to decontaminate indoor residences, and to protect residents from serious health
risks, as Defendants knew or deliberately disregarded.
As A Result of EPA Misdeeds, There Has Been Inadequate IndoorHazardous Materials Remediation and a Threat to Public Health
165. Because the EPA, without proper oversight, allowed the City of New York to place
cleanup responsibilities on the residents themselves, while recommending the unsafe cleaning
guidelines, there has been inadequate hazardous materials testing and remediation inside
residential and commercial buildings in Lower Manhattan and Brooklyn, as well as inside
schools, putting the Plaintiffs and the putative Class at serious risk of illness.
166. EPA’s repeated assurances of air quality “safety,” discussed above, and its referral
to the DOH guidelines, have resulted in vast numbers of downtown residential and commercial
indoor spaces being cleaned as if the dust did not contain hazardous materials, despite the fact that
official documents conclude that the law required a contrary presumption. EPA’s assurances
stopped many residents and employers, or building owners or managers, from looking for special
cleaning or remediation procedures. This problem was compounded by the fact that about 40% of
downtown residents reported receiving absolutely no instructions or protocols for cleanup or
hazardous materials remediation whatsoever. ( See “A Community Needs Assessment of Lower
Manhattan Following the World Trade Center Attack,” Centers for Disease Control and
Prevention, New York City Department of Health, December 2001). They simply went about
doing a “normal” house or office or building cleaning for their indoor spaces.
167. Even where building owners, managers and tenants understood that this situation
was not “business as usual,” there were still many problems. With respect to indoor commons
spaces, where building owners and managers were made responsible for testing and remediation,
there have been mixed results. While some building owners and managers have dutifully
attempted to clean the common areas, many have failed to do the job, or to do the job
appropriately. Such job was beyond their financial or other capacity to do so, and the City’s lax
enforcement made it easy to avoid getting caught when they did shirk the responsibility.
168. Irresponsible or unscrupulous building owners and managers are able to skirt the
NYC DEP’s scant enforcement measures – either by remediating improperly or not taking any
action with respect to testing or remediation. Even as tenants in these buildings have found
extremely high levels of hazardous materials in common spaces through their private hiring of
professional contractors, their numerous calls to the NYC DEP “helpline” to report building
owners’ inaction has produced little, if any, governmental response. In fact, most tenants have
repeatedly expressed extreme frustration when describing their attempts to access help from DEP.
(See “Official Transcript,” EPA National Ombudsman First Investigative Hearing on World Trade
Center Hazardous Waste Contamination,” February 23, 2002. See specifically testimony from
downtown residents and business owners).
169. Another problem is caused by an inherent conflict of interest for building owners
to actually do testing, which is expensive, because it might result in them having to hire
professional hazardous materials contractors to do proper remediation, which is even more
expensive. Tenants have been forced to go on rent strikes to compel their building owners to test
and remediate properly, and other buildings have already gone to court.
170. In a related problem, building owners may use testing methods that are either
incapable of finding the type of hazardous materials emitted from the WTC, or, specifically
designed to find nothing dangerous that would require expensive remediation. For example, in
the case of Tribeca Tower (105 Duane Street), building management argued that by doing “200
ambient air tests” it had acted “extremely responsive[ly],” despite the fact that tenants who were
supported by private contractors and an EPA scientist have argued that hazardous materials in
settled dust will not show up in passive air tests, and that only sensitive dust sampling or
aggressive air sampling would yield useful information. (See Drenger, Ronald, “At Tribeca
Tower, Tenants Press Health Concerns,” Tribeca Trib, January 4, 2002).
171. With no guidance other than the insufficient DOH guidelines, individual
residential tenants were left to their own uninformed devices when deciding how to deal with the
WTC dust in their apartments.
172. As the responsibility for indoor private spaces has been left to individual
residential and commercial tenants, so too have been the associated costs. A professional
remediation for hazardous materials in an average apartment in Lower Manhattan could cost
$5,000, $10,000 or more, and that does not include the cost of testing. (See “EPA National
Ombudsman First Investigative Hearing on World Trade Center Hazardous Waste
Contamination,” Feb. 23, 2002). Covering the cost of testing and remediation in indoor private
spaces would necessarily come from one of three sources: the tenant’s own pocket, private
insurance (if available), or a government or relief agency.
173. An expense of $5,000 or $10,000 is terribly burdensome, if not prohibitive, for
individual tenants (and particularly residents) if it must come out of their own pockets. Therefore,
where no other funds were available for proper testing or remediation, tenants either did not
remediate or did not remediate properly. In some cases, residents who had nowhere else to turn
financially, accepted help from volunteer college students and members of the Southern Baptist
Convention. These untrained volunteers came into downtown apartments and cleaned, using
methods as or less safe than the dangerous NYCDOH guidelines, and did so without proper
protection gear. To the extent that untrained tenants or relief workers have cleaned indoor spaces
based on the NYCDOH guidelines or no guidelines at all, those spaces cannot be considered
adequately remediated or safe.
174. According to tenants who possess private insurance, insurance carriers have
haphazardly settled claims with widely varying amounts paid. In many cases, the amounts have
been woefully inadequate. Also, claims have been denied for a variety of reasons.
175. Moreover, some insurance companies have denied claims (for rental assistance, air
purifiers, and hazardous materials testing and remediation) to both tenants and building owners on
the basis of EPA’s safety assurances, described above.
176. FEMA, in its “case-by-case” approach, has provided some assistance to individual
residents for “cleaning,” though many individuals have reported having their application denied or
having received very little financial assistance. Moreover, FEMA announced in one of its own
bulletins that residents could be eligible for such funds, but only if the individual is willing to
forgo rental assistance.
177. Commercial tenants, particularly smaller businesses, have had similar problems to
those of the residential tenants. Small commercial tenants were given the same inadequate
cleaning protocols, have lacked sufficient funds (most have received only loans, not direct grant
assistance), and have had insurance claims denied due to EPA’s safety assurances. They also had
the same trouble getting their building owners and managers to clean common spaces. Moreover,
inaction on the part of less scrupulous employers or business owners has left individual employees
at these firms with nowhere to turn if their employer chose not to test and remediate properly or at
all.
178. As a result of all of these factors, the testing and remediation of hazardous
materials in buildings in Lower Manhattan have been completely inadequate. Another problem is
that even when public or single apartments or offices are remediated appropriately, ventilation
systems can move hazardous materials from unremediated spaces to those already remediated.
Therefore, tenants who may believe they are living or working in a “safe” environment, because
they have paid considerably for proper remediation, may well be living in recontaminated areas.
179. The problems recounted herein with the interior cleanup of WTC dust reflects in
large part the obvious fact that there exist many conflicting and interconnected ownership interests
in the case of a very densely populated urban area such as New York City. There are building
owners and tenants; common areas and individual units; co-ops and condominiums with unique
ownership arrangements; and high-rise buildings with common hallways, air shafts, and heating
and ventilation systems. In contrast, the area which the EPA itself cleaned - - the streets,
sidewalks and other common outdoor public areas - - did not implicate these complicated
ownership patterns.
There Has Been No Enforcement To Ensure Cleanup
180. City officials have acknowledged that New York City failed to ensure that building
and apartment owners were following through with cleanup of the hazardous and toxic materials
lodged in the buildings.
181. A September 22, 2002 NCYDOH press release confirms that while the City
required that buildings be certified for issues such as “structural stability,” no such certification
was required for environmental safety. The only record of any enforcement of common space
testing and remediation is a letter sent by DEP to building owners around February 2002,
requesting documentation of cleanup measures taken. On information and belief, the number of
landlords who responded to such request is quite small. Moreover, that letter informed the
landlords and property owners that they are only responsible for common or public areas of
buildings. In fact, according to a door-to-door survey conducted by NYCDOH around November
1, 2001, only 40 percent of residents said that they cleaned their homes according to the
recommended methods of wet mopping hard surfaces and using HEPA vacuums on carpeting.
See The OIG Report, p. 45.
182. The New York City Council on Environmental Protection conducted extensive
oversight hearings on the environmental issues present here, and concluded in its December 2001
report that protocols should be established for the cleanup and post cleanup monitoring and testing
of buildings. It specifically found that: “contamination in residences and office buildings is not a
problem that individual apartment dwellers, office workers and even most building managers can
address on their own. Trained personnel . . ., special cleanup techniques . . ., and special
equipment . . . are needed.” The report further states:
The Committee is particularly concerned that involved agencieshave largely ignored these indoor places and have done littlemonitoring and testing inside buildings and exercised littleoversight of the monitoring and testing done by private prosperityowners.
See Report of the Committee on Environmental Protection, December 2001, pages 27-28.
183. The unsafe inadequate guidelines should be contrasted with the much more
rigorous, whole-building cleanup that EPA performed on one building at 110 Liberty St. in Lower
Manhattan. Further, to illustrate the need for follow-up cleanings, even the EPA’s stringent
cleaning measures were not able to lower asbestos and lead concentrations to EPA’s benchmarks
with just one cleaning, even for the apartment with what EPA called “minimal” WTC dust (no
visible dust, except under baseboard heaters).
184. In short, hazardous materials emitted from the WTC Collapse that remain inside
buildings in Lower Manhattan pose a serious public health threat to residents, workers and
students. This threat has been detailed in various government hearings and numerous press
accounts by a wide array of pre-eminent public health experts.
THE EPA INITIATED A VOLUNTARY CLEANUP PROGRAM ONE YEAR LATER THAT FAILS TO MEET THE APPROPRIATE STANDARDS AND REGULATIONS
185. In February and March 2002 EPA Ombudsman hearings were held in Manhattan.
These two-day hearings on the WTC environmental response were held to address the growing
public criticisms of the EPA’s reassuring statements to the public, its inadequate cleanup
measurements and failed removal efforts. EPA brazenly refused to testify at the hearings, which,
according to then-Ombudsman Robert Martin, was the first such Agency refusal in his nine-year
tenure. The EPA stated flippantly that the hearing “may be off-off Broadway, but it is still pure
theater.” The OIG report released 18 months later bore out many of the criticisms aired at the
Ombudsman hearings.
186. Under political pressure from the hearings, politicians, and the community, in
February 2002,Whitman announced the establishment of a task force comprised of representatives
from various state and federal agencies to address the issue of indoor air. The former EPA Chief
of Staff stated that the EPA initiated this effort because “Over time, we saw that New York City
was not prepared to handle all the issues related to indoor air and offered to support them.” See
The OIG Report, p. 27. In late April 2002, with the task force yet to initiate any actual interior
cleanup program, New York Mayor Bloomberg requested of Whitman that the EPA take the lead
on indoor air issues arising from the WTC Collapse. See, The FEMA Report, p. 61. On May 8,
2002 the EPA, New York City, and FEMA officials announced a FEMA-funded cleanup plan to
the public. Under the voluntary program, residents of Lower Manhattan living south of Canal
Street could request testing and cleaning of their residences, or just testing. Office buildings were
still left totally without EPA assistance. Public registration for the indoor testing and cleaning
program ended December 28, 2002.
187. Actual cleaning by the EPA under the voluntary program was implemented in
September 2002, over one year after the WTC Collapse. Notably, the OIG Report concluded that
the delay in providing a “government-organized” cleanup in Lower Manhattan may have
contributed to unnecessary exposures to asbestos and other contaminants by unprotected workers
and residents. Id., p. 29. By December 2002, the EPA had cleaned fewer than 500 homes.
188. Under the program, which the EPA characterized as a “removal” under 40 C.F.R.
300.415, residents could choose to have “testing only” of their residence or they could choose to
have “cleaning and post-cleaning testing” of their residence. Residents requesting to only have
their residence tested could choose between one of two sampling options: aggressive sampling or
modified aggressive sampling. For either sampling option, the air samples were to be analyzed for
asbestos only, despite the fact that many other pollutants may be present. In addition to testing
indoor air for asbestos, EPA planned to collect pre- and post-cleaning wipe samples for a very
limited number of residences (approximately 250) and test these samples for dioxin, total metals,
and mercury.
189. For residents requesting “cleaning and post-cleaning testing,” two approaches are
used to clean the residences. The cleaning approach was based on the extent of dust
contamination as determined through visual inspection. If EPA believes that there is “substantial”
dust, they will require the abatement workers to use full protective equipment, including full body
suits and HEPA respirators. Residents will not be allowed to be present during the abatement for
fear they could be exposed. The apartment has to be sealed off. Residents have to be excluded
from the work area for the brief one-time period that the cleaning takes place, because EPA now
believes that it is too hazardous to be there.
190. By requiring stringent safety procedures in EPA’s voluntary cleanup program, it is
clear that there were hazards to all the citizens who cleaned up their own apartments and offices
with “significant” accumulations of dust/debris, using the NYCDOH do-it-yourself guidelines.
EPA is now implying that citizens also should have taken at least the same precautions as in
EPA’s cleaning protocols. By following the NYCDOH guidelines, citizens performed their own
do-it-yourself cleanups where there were heavy layers of dust, with no respiratory protection or
any other precautions.
191. As described below, the voluntary cleanup effort is grossly inadequate, because,
inter alia, the EPA is only testing for asbestos; the geographical coverage of the cleanup, limited
to residences south of Canal Street, is too limited and was arbitrarily set (e.g., it completely
excludes Brooklyn, and EPA did not test in concentric circles around the WTC site to properly
determine the contaminated areas requiring cleanup); and the EPA has not required all apartments
within a building to be cleaned, thus leading to re-contamination of clean residences. In addition,
office buildings and other work places were entirely excluded from the program. In particular, the
EPA excluded firehouses from the program, even though firefighters reside there for days at a
time, on the basis that, according to Callahan, they are “dual-use” buildings.
Indoor Cleanup Level Does Not Meet EPA Levels Used ForOther EPA Cleanups Conducted Under the NCP
192. Although the indoor cleanup in Lower Manhattan was not being conducted as a
Superfund cleanup, Superfund regulations and guidelines provide useful criteria for evaluating the
health protectiveness of the Lower Manhattan cleanup and whether it provides reasonable
assurance that the public’s risk of exposure to asbestos and other contaminants had been
minimized.
193. The NCP describes specific criteria for determining the cleanup goals for
contaminated sites placed on the National Priorities List. The NCP requires that for known or
suspected carcinogens, acceptable exposure levels are generally concentration levels that
represent between a 1-in-10,000 and 1-in-1,000,000 increased lifetime cancer risk. The NCP lists
nine factors, including cost, exposure, uncertainty, and technical limitations, that may justify a
cleanup remedy that departs from the 1-in-1,000,000 cleanup goal.
194. In contrast to the above criteria, EPA’s Lower Manhattan indoor cleanup
established a 1-in-10,000 risk as the goal of the cleanup for asbestos. The program does not
include monitoring for the presence of the other COPCs, including dioxin and PAHs, which are
known carcinogens. The COPC document established benchmarks for these two pollutants that
also correspond to a 1-in-10,000 increased risk. Although the assumption is that the cleaning
methods prescribed for asbestos will clean the residence of other pollutants as well, the post-
cleaning testing does not provide assurance that these other pollutants were removed. However,
under Superfund guidance, the risk from exposure to multiple carcinogens is considered additive.
Thus, if all three pollutants were cleaned up to levels that equate to a 1-in-10,000 risk for each
pollutant, the combined risk would be considered greater than 1-in-10,000.
195. Moreover, EPA is testing for asbestos only. EPA is testing additional substances at
random, but in too few homes to have any statistical power to establish that these substances are
not present elsewhere. Indeed, the expert panel convened by EPA to advise it on its own cleanup
program recommended expanding the list of hazardous substances to be tested in residences.
Apparently, EPA ignored such advice.
The EPA Failed To Treat Impacted Buildings as a System
196. Tests of indoor asbestos contamination have shown that the distribution of asbestos
within indoor spaces is not consistent. Thus, the selective cleaning of apartments does not ensure
that uncleaned residences or uncleaned objects in apartments are free of asbestos contamination.
In the case of centralized HVAC systems, selective cleaning does not ensure that cleaned
apartments will not be re-contaminated by uncleaned apartments through the HVAC system.
Consequently, the cleaning of contaminated buildings should proceed by treating the building as a
system.
197. According to EPA officials, as of July 2003, only 143 buildings had been cleaned,
and just 28 HVAC systems.
Non-aggressive Sampling Does Not Provide Assurance That ResidentsWill Not Be Exposed to Potentially Harmful Levels of Asbestos
198. The non-aggressive sampling option available to residents does not provide
assurances that residents will not be exposed to potentially harmful levels of asbestos. AHERA
protocols for building clearance after abatement require aggressive sampling to re-entrain (stir)
settled dust before air samples are taken. The modified aggressive option available to residents
may not re-suspend asbestos particles clinging to surfaces within the residence.
The Cleanup Program Geographic Boundary Was Not Scientifically Developed
199. The northern boundary of the cleanup area (Canal Street), coincides with the initial
exclusion zone developed on September 11. However, this boundary was not based on systematic
and representative sampling by the EPA to determine the likely outer boundary of WTC
contamination. Dr. Stephen Levin of Mt. Sinai Hospital noted this fact with disapproval when
testifying at Mt. Sinai Hospital before a Congressional subcommittee on October 28, 2003.
Several indoor sampling efforts were conducted after September 11, but none were designed to
determine the geographic extent of WTC dust contamination. Consequently, it has not been
determined which buildings north of Canal Street or east of Lower Manhattan or in Brooklyn were
contaminated, although residents have confirmed that WTC dust did settle in these places.
200. Environmental experts state that ideally a sampling plan should have been
implemented that collected and analyzed samples starting at Ground Zero and radiating outward
in concentric circles until the boundary of WTC contamination was determined. See OIG Report,
pp. 52-53.
201. Reportedly, this cleanup program ended in the summer of 2003. Through the
program, only approximately 4,100 dwelling units were tested and/or cleaned out of 21,100 units.
Even after such cleaning, some units were again tested and showed contamination above the
health-based benchmark. See Statement of Paul Gilman, PhD., October 28, 2003. In short, there
are serious flaws and limitations in EPA’s voluntary cleanup program. This cleanup does not
meet the minimum criteria for protecting human health that EPA has established for Superfund
cleanups. Also, the indoor cleaning and testing program does not employ aggressive testing in all
residences and treat buildings as a system. Additionally, EPA refuses to evaluate the potential
health risks for pollutants of concern in work spaces, and for geographic areas north of Canal
Street, in Brooklyn, and any other areas where meteorological data show pollutants of concern
may have been deposited.
202. This cleanup program clearly does not remediate the hazardous situation existing
in Class members’ homes, offices and schools.
203. The New York City Department of Health and Mental Hygiene and U.S.
Department of Health and Human Services, Public Health Services, Agency for Toxic Substances
and Disease Registry performed one of the largest studies in terms of buildings analyzed, and
issued a final report in September 2002. The study collected dust and air samples in and around
30 residential buildings (encompassing 59 apartment units) in Lower Manhattan. Of the 59
apartments, 85% had apparently been cleaned professionally or otherwise, prior to sampling.
Nevertheless, almost 20% still had interior dust with measurable asbestos. It recommended that
there be additional monitoring of residential areas in Lower Manhattan and that residents request
cleaning and/or testing from the EPA.
RESIDENTS, OFFICE WORKERS, AND SCHOOL CHILDREN FACE LONG TERM HEALTH RISKS
204. On November 1st and 8th, 2001, the City Council’s Committee on Environmental
Protection conducted extensive oversight hearings on the environmental impact on Lower
Manhattan due to the attacks on the WTC. The Committee heard testimony from 36 witnesses.
These witnesses included medical doctors who actually treated residents of Lower Manhattan for a
variety of ailments. These doctors testified that clinical data revealed that public health risks were
much higher than the optimistic assessments provided by the government agencies. Indeed,
various doctors recommended that some form of medical monitoring be implemented in order to
address the long and short term consequences to the public. See Report of the Committee on
Environmental Protection, “Air Quality and Environmental Impacts Due to the World Trade
Center Disaster”, December 2001, comments of Dr. Stephen M. Levin, Dr. Philip Landrigan,
Marjorie J. Clarke, Ph.D., and Dr. Paolo Taniolo.
205. Moreover, evaluations by teams of leading asbestos researchers show that the
increased risk to people who live, work or study in homes or offices near the WTC that have not
been properly decontaminated could be has high as one additional cancer death for every ten to
one thousand people exposed. See The Seattle Post Intelligencer, January 14, 2002.
206. Schools in the Lower Manhattan area impacted by the World Trade Center dust
include Stuyvesant High School (345 Chambers Street), Independence School PS 234 (292
Greenwich Street), PS and IS 89 (201 Warren Street), PS 150 (334 Greenwich Street), High
School of Economics and Finance (100 Trinity Place), and the High School for Leadership and
Public Service (90 Trinity Place).
207. As described more fully above, Stuyvesant High School is located 4 blocks from
the WTC site. After the school was reopened to 3000 students on October 9, 2001, environmental
testing performed by the Department of Education and others demonstrated both contamination in
the school caused by the initial dust cloud (containing asbestos and lead) which emanated from
the WTC site, and recontamination of the school throughout the school year from the fleet of
diesel trucks carrying hazardous debris from the WTC site to the waste transfer barge station
located adjacent to the school’s ventilation intakes. (The placement of this toxic dump next to
schools and in a residential neighborhood was in direct violation of EPA regulations.) As to any
long-term health consequences for the children, an informal survey of parents conducted by the
Stuyvesant Parents’ Association found several hundred children with new or exacerbated
respiratory symptoms, and other physical ailments, several months after September 11th.
See Testimony of Marilena Christodoulou, President, Stuyvesant High School Parents’
Association, March 12 and May 9, 2002; The New York Times, December 4, 2003.
EPA Now Admits to the Long-Term Impact of Exposure to Hazardous and Toxic
Substances
208. The EPA itself now admits that residents may have long-term health risks
associated with the WTC Collapse. On May 28, 2002 Jane Kenny, EPA Region 2 Administrator
wrote to Joseph Picciano, the Acting Regional Administrator of FEMA as follows:
Individuals living in spaces that contain World Trade Center-relateddebris/dust may have an increased long-term risk of exposure to asbestos.This potential risk will be reduced by thoroughly removing the debris/dustin the residential units. Therefore, we believe it is necessary to offerprofessional cleaning and testing to residents of Lower Manhattan who areconcerned about debris/dust. Additionally, since the Heating, Ventilation,Air Conditioning (HVAC) systems in buildings could potentially beconduits for reintroducing polluted material into residential units fromexterior sources, we believe it is important to better understand themechanisms of the
potential exposure routes in order to determine if additional protection measuresare warranted.
209. Some of the EPA’s additional statements of admission include:
There are two key studies, which were conducted for EPA, which examinedthe effectiveness of various cleaning methods on carpets impacted byasbestos. The first found that cleaning asbestos-contaminated carpets withhot-water extraction cleaner was most effective, reducing asbestos levels byapproximately 70%. The second study again found that a hot-waterextraction cleaner was most effective, producing a 60% reduction inasbestos levels in contaminated carpets.
However, because of the results of these studies, EPA cannot guarantee toresidents that all asbestos fibers, if present, can be removed from fabricitems. EPA anticipates that available cleaning methods for fabric items thatwere significantly impacted by dust or debris may not be sufficient toaddress the concerns of residents or EPA’s concern for people’s long termhealth. (emphasis added).
See WTC Residual Dust Cleanup Program, Carpets, Upholstered Furniture and Other FabricSurfaces Fact Sheet, undated, http://www.epa.gov/wtc/factsheets/fabrics.html/.
8/16/02 EPA announced today that it will start the scheduling of testing for airborneasbestos in residences in lower Manhattan today Residents living below Canal,Allen and Pike Streets may ask to have their homes cleaned and tested for airborneasbestos by certified asbestos contractors or they may ask for testing alone
Some dust from the World Trade Center collapse has been shown tocontain asbestos and other contaminants. EPA believes this action-orientedcleanup and testing program will reduce risk of possible long-termexposure and related health effects. (emphasis added).
See WTC RESIDENTIAL DUST CLEANUP PROGRAM MEDIA & HOTLINE ADVISORYAsbestos Testing to Start Immediately; Deadline for Assistance Requests Extended, 8/16/02,http://www.epa.gov/region02/news/2002/02080.htm.
9/4/02 Mears, the EPA spokeswoman, conceded that the HEPA vacuuming and wetextraction the agency is offering will remove only 60% to 70% of asbestos fibers.(emphasis added).
See A Toxic Legacy Lingers as Cleanup Efforts Fall Short, By Maggie Farley, Los Angeles Times,9/4/02.
5/28/03 In an interview with CQ Homeland Security, Mary Mears, EPA’s chief of public
outreach development for New York, New Jersey, Puerto Rico and the VirginIslands, said the risk to health was not immediate. “While the risk is low, there isstill a long term health concern for residents who did not have World Trade Centerdust professionally cleaned out of their homes,” she said by telephone Tuesday.
See Poisons from Towers Crash Still Loose in Manhattan, Rep. Nadler Says, Calling EPA a‘Disgrace,’ By Kent Vander Wal, 5/28/03, http://www.columbia.edu/cu/libraries/indexes/cq-homeland-sec.html.
COUNT IVIOLATION OF THE FIFTH AMENDMENT TO THE CONSTITUTION
(Against Defendants Whitman and Horinko)
210. Plaintiffs incorporate the averments of all paragraphs above as though fully set
forth herein. For purposes of the paragraphs set forth in this Count only, the term “Defendants”
means Whitman and Horinko.
211. Defendants Whitman and Horinko acted at all times relevant hereto as agents of the
federal government and under color of federal law.
212. The conduct of Defendants Whitman and Horinko, as set forth above, deprived
Plaintiffs and the putative Class of the substantive right to be free from bodily injury guaranteed to
them under the due process clause of the Fifth Amendment of the Constitution of the United
States. Plaintiffs’ right not to be subjected by the government to health risks was violated by the
series of actions outlined in this Complaint including: Whitman’s affirmative statements that the
Agency would cleanup the building interiors to an acceptable level of safety, and then its failure to
do so, and allowing residents, office workers, firefighters, and school children to return to their
buildings on September 17, 2001; Whitman’s and Horinko’s knowing false statements
disseminated to the victims of the WTC attacks regarding the air quality; Whitman’s and
Horinko’s illegal and/or improper delegation to New York City of the indoor cleanup; Whitman’s
and Horinko’s endorsement and dissemination of New York City’s grossly improper cleaning
instructions; and generally Defendants’ failure to ensure a cleanup of the impact area of the WTC
attack and to ensure decontamination of buildings containing carcinogens and other hazardous
substances. Such actions by Defendants shocks the conscience.
213. Defendants were directly responsible for the systematic misrepresentations. The
failure to take the lead responsibility and to ensure the cleanup of building interiors are similarly
arbitrary and illegal under the Fifth Amendment to the Constitution of the United States.
214. Defendants Whitman’s and Horinko’s responsibility for issuing knowingly false
reassurances that the air was safe for residents, office workers, firefighters, and school children in
the New York City impact area placed the Class in a position of danger. These affirmative
actions, and Defendants’ subsequent failure to take responsibility for an adequate interior cleanup
as mandated by federal law to protect the Class members, effectively threw the Class “into a snake
pit” of physical danger, exposing them to carcinogens and other hazardous substances with direct
and significant long-term health consequences in violation of the due process clause of the Fifth
Amendment to the Constitution.
215. Defendants had actual notice of the health dangers associated with these substances
and had actual notice that the Plaintiffs and Class Members would be exposed to airborne asbestos
fibers and other hazardous substances through inhalation, ingestion and hard contact.
216. Evidence of Defendants’ deliberate acts include the issuance of numerous
statements to Plaintiffs and the putative Class by Defendants, directly and through their agents and
employees, claiming that the air was safe to breathe in and around Lower Manhattan after the
WTC attacks, and that there was no health risk presented to the public upon their returning to their
work places, residences and schools, despite their legal duty to inform the public of the complete
truth regarding such matters under the NCP, and their knowledge that such information was false
and misleading.
217. Further evidence of Defendants’ wrongful and illegal deliberate acts include their
decision to ignore the Agency’s duty pursuant to Presidential Decision Directive 62, the Federal
Response Plan, and other federal law to take the lead responsibility for the cleanup of buildings
and residences in response to the attack on the WTC Towers.
218. Defendants’ deliberate acts are further evident in their delegation of all
responsibility for the cleanup to the City of New York, which was ill-equipped to handle the
situation; the failure to supervise and oversee the cleanup efforts by the City of New York;
referring the public to cleanup guidelines issued by the City of New York, which were contrary to
EPA standards, and grossly inadequate to properly clean up the hazardous substances present in
the residences and work places to protect the health risk presented to the public; their failure to
properly assess the proper geographical scope of the hazard; their failure to properly assess the
various hazardous substances existing in the environment; and their failure to properly remediate
the problems through their voluntary cleanup program.
219. Plaintiffs and the putative Class have been injured as a proximate result of
Defendants’ actions as aforesaid in that Plaintiffs have suffered and will continue to suffer
physical bodily injury.
220. The wrongs complained of by Plaintiffs are the result of improper acts and failures
to act by Defendants which were done in a willful and deliberate manner, with a bad motive or
severe recklessness to Plaintiffs, and were without justification.
221. As a direct, proximate and foreseeable result of the actions and omissions of
Defendants, Plaintiffs and the Class have suffered and continue to suffer the following damages:
a. the cost of full and proper cleanup of their residences;
b. physical harm, including without limitation, respiratory problems,
illnesses, diseases, injuries, and other damages; and
c. increased risk of developing serious illnesses including asbestosis, mesothelioma
and lung cancer.
WHEREFORE, Plaintiffs, on behalf of themselves and the Class, pray for judgment as follows:
A. Declaring this action to be a class action properly maintained pursuant to Rule 23
(a) and (b)(3) of the Federal Rules of Civil Procedure;
B. Finding Defendants liable for their acts and omissions alleged herein;
C. Compensating damages for the cost of full and complete proper cleanup of
residences, schools, and places of business;
D. Reimbursement of any costs previously incurred in having an interior structure
professionally cleaned and abated due to the WTC dust.
E. Creating a fund to finance medical monitoring services, including, but not limited
to, testing and preventive screening for conditions resulting in whole or in part from exposure to
WTC dust, direct medical consultation and independent scientific studies to quantify the adverse
health effects, both physical and emotional, of exposure to the hazardous substances contained in
such dust, to take preventive action, and to obtain early detection, and diagnosis of disease. Such
services must be administered directly on behalf of the Class and independently of the control of
Defendants, and of all present divisions, departments and agencies of the Government of the
United States or of any State. This relief is necessary, among other things, to ascertain the extent
and impact of the significant increased risk of adverse health effects associated with Defendants’
wrongful activities, to minimize the threat or potential threat posed by hazardous substances to
human health, and thereby to protect the health and safety Plaintiffs and the members of the Class.
F. Awarding Plaintiffs and the Class their costs and expenses of this litigation,
including reasonable attorneys’ fees, pursuant to 28 U.S.C. §2412 or otherwise, and expert fees
and other costs and disbursements; and
G. Awarding Plaintiffs and the Class such other further relief as may be just and
proper under the circumstances.
COUNT II
VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §701, ETSEQ.
(Against Defendants EPA and Leavitt)
222. Plaintiffs incorporate the averments of all paragraphs above as though fully set
forth herein. For purposes of the paragraphs set forth in this Count only, the term “Defendants”
means the EPA and Leavitt, insofar as he is presently Administrator of the EPA and has been since
November 6, 2003.
223. The count is brought under both 5 U.S.C. §706(1) and (2) to challenge Defendant
EPA’s and Leavitt’s actions with respect to the cleanup of hazardous substances inside buildings
caused by the WTC Collapse.
224. Pursuant to Presidential Decision Directive 62, the Federal Response Plan, the
National Contingency Plan, CONPLAN, and other federal law, the EPA had a mandatory duty to
take lead responsibility for the cleanup of office buildings, residences, and schools in response to
the attack on the WTC towers.
225. Defendants failed to comply with their legal duty where they: issued false
statements to the Plaintiffs and the putative Class that the air was safe to breathe and that there was
no public health risk presented by the WTC Collapse; delegated all responsibility for the interior
cleanup to the City of New York, which was ill-equipped to handle the situation; failed to
supervise and oversee the cleanup efforts by the City of New York; referred the public to cleanup
guidelines issued by the City of New York which violated EPA standards and were grossly
inadequate to properly clean up the hazardous substances present in the office buildings,
residences, and schools, and to protect the health risk presented to the public; failed to properly
assess the proper geographical scope of the hazard; failed to properly assess the various hazardous
substances existing in the WTC dust; and failed to properly remediate the problems through their
voluntary cleanup program or otherwise.
226. Defendants’ actions in this regard were not in accordance with the law, were
arbitrary and capricious, and were contrary to Plaintiffs’ Constitutional rights to be free from
bodily injury.
227. Plaintiffs have been injured as a proximate result of Defendants’ actions as
aforesaid in that they have suffered bodily injury and have unnecessarily been exposed to a risk of
additional physical bodily injury in the future.
228. As a direct and proximate result of the actions and omissions of Defendants,
Plaintiffs and the Class have suffered and continue to suffer the following damages:
a. the cost of full proper cleanup of their office buildings, residences, and schools;
b. physical harm, including without limitation, respiratory problems, illnesses,
diseases, injuries, and other damages; and
c. increased risk of developing serious illnesses.
WHEREFORE, Plaintiffs on behalf of themselves and the Class, pray for judgment as
follows:
A. Declaring this action to be a class action properly maintained pursuant to Rule 23
(a) and (b)(3) of the Federal Rules of Civil Procedure;
B. Finding Defendants EPA and Leavitt liable for their acts and omissions alleged
herein;
C. Compelling EPA to perform representative testing of all office buildings, schools,
and residences in Lower Manhattan, including Brooklyn, for any and all hazardous substances, in
accordance with applicable federal regulations and standards, and, where such tests reveal the
presence of hazardous substances, implement a complete professional cleanup of all such
buildings;
D. Compelling EPA to implement a program for medical monitoring services,
including, but not limited to, testing and, preventive screening for conditions resulting in whole or
in part from exposure to the WTC dust, direct medical consultation and independent scientific
studies to quantify the adverse health effects, both physical and emotional, of exposure to the
hazardous substances contained in such dust, to take preventive action, and to obtain early
detection and diagnosis of disease. Such services must be administered directly on behalf of the
Class and independently of the control of Defendants, and of all present divisions, departments
and agencies of the Government of the United States or of any State. This relief is necessary,
among other things, to ascertain the extent and impact of the significant increased risk of adverse
health effects associated with Defendants’ wrongful activities, to minimize the threat or potential
threat posed by hazardous substances to human health, and thereby to protect the health and safety
of Plaintiffs and the members of the Class.
E. Awarding Plaintiffs and the Class their costs and expenses of this litigation,
including reasonable attorneys’ fees, pursuant to 28 U.S.C. §2412 or otherwise, and expert fees
and other costs and disbursements; and
F. Awarding Plaintiffs and the Class such other further relief, including punitive
damages, as may be just and proper under the circumstances.
COUNT III
MANDAMUS TO COMPEL DEFENDANTS TO PERFORM THEIR LEGAL DUTIES(Against Defendants EPA and Leavitt)
229. Plaintiffs incorporate the averments of all paragraphs above as though fully set
forth herein. For purposes of the paragraphs set forth in this Count only, the term “Defendants”
means the EPA and Leavitt, insofar as he is presently the Administrator of the EPA and has been
since November 6, 2003.
230. This count seeks to compel Defendants EPA and Leavitt to perform their official
legal duties.
231. As more fully specified above, pursuant to Presidential Decision Directive 62, the
Federal Response Plan, the National Contingency Plan, CONPLAN, and other federal law,
Defendant EPA had and continues to have a mandatory duty to take lead responsibility for the
cleanup of office buildings, residences, and schools in Lower Manhattan and Brooklyn in
response to the attack on the WTC Towers on September 11, 2001.
232. Defendants failed to comply with their legal duties where they, inter alia: delegated
all responsibility for the interior cleanup to the City of New York, which was ill-equipped to
handle the situation; failed to supervise and oversee the cleanup efforts by the City of New York;
referred the public to cleanup guidelines issued by the City of New York which violated EPA
standards and were grossly inadequate to properly clean up the hazardous substances present in
the office buildings, residences, and schools, and to protect the health risk presented to the Class;
failed to properly assess the proper geographical scope of the hazard; failed to properly assess the
various hazardous substances existing in the environment; and failed and continue to fail to
properly remediate the problems through the EPA’s voluntary cleanup program or otherwise.
233. Plaintiffs have been injured as a proximate result of Defendants’ actions as
aforesaid in that they have suffered bodily injury and have unnecessarily been exposed to a risk of
additional physical bodily injury in the future.
234. As a direct and proximate result of the actions and omissions of Defendants,
Plaintiffs and the Class have suffered and continue to suffer the following damages:
a. the cost of full proper cleanup of their office buildings, residences, and
schools;
b. physical harm, including without limitation, respiratory problems, illnesses,
diseases, injuries, and other damages; and
c. increased risk of developing serious illnesses.
WHEREFORE, Plaintiffs on behalf of themselves and the Class, pray for judgment as
follows:
A. Declaring this action to be a class action properly maintained pursuant to Rule 23
(a) and (b)(3) of the Federal Rules of Civil Procedure;
B. Finding Defendants liable for their acts and omissions alleged herein;
C. Compelling the EPA to perform representative testing of all office buildings,
schools, and residences in Lower Manhattan, including Brooklyn, for any and all hazardous
substances, in accordance with applicable federal regulations and standards, and, where such tests
reveal the presence of hazardous substances, implement a complete professional cleanup of all
such buildings;
D. Compelling the EPA to implement a program for medical monitoring services,
including, but not limited to, testing and preventive screening for conditions resulting in whole or
in part from exposure to the WTC dust, direct medical consultation and independent scientific
studies to quantify the adverse health effects, both physical and emotional, of exposure to the
hazardous substances contained in such dust, to take preventive action, and to obtain early
detection and diagnosis of disease. Such services must be administered directly on behalf of the
Class and independently of the control of Defendants, and of all present divisions, departments
and agencies of the Government of the United States or of any State. This relief is necessary,
among other things, to ascertain the extent and impact of the significant increased risk of adverse
health effects associated with Defendants’ wrongful activities, to minimize the threat or potential
threat posed by hazardous substances to human health, and thereby to protect the health and safety
of Plaintiffs and the members of the Class.
E. Awarding Plaintiffs and the Class their costs and expenses of this litigation,
including reasonable attorneys’ fees pursuant to 28 U.S.C. §2412 or otherwise, and expert fees
and other costs and disbursements; and
F. Awarding Plaintiffs and the Class such other further relief as may be just and
proper under the circumstances.
JURY TRIAL DEMANDED
Plaintiffs demand a trial by Jury.
Dated: March , 2004Shandell, Blitz, Blitz & Bookson, LLPBert A. Blitz150 Broadway, 14th FloorNew York, NY 10038-4498(212) 513-1300
BERGER & MONTAGUE, P.C.Sherrie R. SavettJeanne A. Markey
Michael T. Fantini1622 Locust StreetPhiladelphia, PA 19103(215) 875-3000
New York Environmental Law & Justice ProjectJoel R. Kupferman, Executive Director351 Broadway, 4th FloorNew York, NY 10013-3902(212) 334-5551
Counsel For Plaintiffs
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