Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Benzman v. Whitman

February 2, 2006

GAIL BENZMAN, DIANE LAPSON, JIM AND ANAMAE GILROY, JOALISON POLETT, ROBERT GULACK, JANICE FRIED, JOHN CALDER, JENNA ORKIN, KELLY COLANGELO, GEORGE DINOS, BRIAN EDWARDS, AND SARA MANZANO-DIAZ, ON THEIR BEHALF AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
CHRISTINE TODD WHITMAN, MARIANNE L. HORINKO, MICHAEL LEAVITT, AND THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS.



The opinion of the court was delivered by: Deborah A. Batts, United States District Judge.

OPINION

Before the Court are two separate Motions to Dismiss filed by Christine Todd Whitman and Marianne Horinko ("Individual Defendants"), and Michael Leavitt and the United States Environmental Protection Agency ("EPA Defendants").

Plaintiffs Gail Benzman, Diane Lapson, Jim and Anamae Gilroy, JoAlison Polett, Robert Gulack, Janice Fried, John Calder, Jenna Orkin, Kelly Colangelo, George Dinos, Brian Edwards and Sara Manzano-Diaz have brought the above-captioned putative class action suit on behalf of a class consisting of: (a) residents of Lower Manhattan (which includes Chinatown and the Lower East Side) and Brooklyn; (b) students attending schools in Lower Manhattan and Brooklyn; (c) workers whose place of employment was in Lower Manhattan and Brooklyn; who have been exposed to hazardous substances in the interior of their residences, schools and workplaces as a result of the dust and debris released from the collapse of the World Trade Center ("WTC") towers and surrounding buildings following the terrorist attacks on September 11, 2001. (Am. Compl. ¶ 1.) Plaintiffs bring this action against Defendants Christine Todd Whitman ("Whitman"), Administrator of the EPA as of September 11, 2001, and until June 24, 2003; Marianne Horinko ("Horinko"), Assistant Administrator designee of the EPA during that same period of time; Michael Leavitt ("Leavitt"), the current Administrator of the EPA; and the United States Environmental Protection Agency ("EPA"). (Id.)

Plaintiffs bring four causes of action in their Amended Complaint. Count One, alleging a violation of the Fifth Amendment of the Constitution, is asserted against Individual Defendants Whitman and Horinko. Plaintiffs seek compensatory damages, reimbursement of costs incurred by Plaintiffs, and the creation of a fund to finance medical monitoring services. Counts Two and Three are asserted against the EPA Defendants. Count Two challenges EPA Defendants' actions after the September 11, 2001 attacks under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., for not being in accordance with the law, as arbitrary and capricious, and contrary to Plaintiffs' Fifth Amendment rights. Count Three is a mandamus action, pursuant to 28 U.S.C. § 1361. Count Four is asserted against only the EPA and is brought pursuant to the citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9659(a)(1), for violation of regulations under CERCLA. The last three causes of action seek identical relief: to compel testing by the EPA of office buildings, schools and residences in Lower Manhattan and Brooklyn, and if such tests reveal the presence of hazardous substances, to implement a professional clean-up of all such buildings, and to compel the EPA to implement a program for medical monitoring services. (Id. ¶¶ 239, 245, 248.)

The Individual Defendants have moved to dismiss Count One of the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). EPA Defendants have moved to dismiss Counts Two, Three and Four pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

For the reasons that follow, Individual Defendants' Motion to Dismiss is GRANTED in part and DENIED in part, and EPA Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.

I. BACKGROUND

The following facts are taken from the Amended Complaint and are assumed to be true for the purposes of the Motions to Dismiss.

This case is based on nihilistic actions that are imprinted on our collective memory as a nation. On September 11, 2001, terrorists hijacked three commercial airplanes. Two of these planes were intentionally flown into the World Trade Center towers in New York City. Within hours of impact, the two towers collapsed, killing thousands and spreading vast amounts of dust and debris. (Am. Compl. ¶ 41.) The airborne dust blanketed Lower Manhattan and also settled in building interiors north of Canal Street in Manhattan and parts of Brooklyn. (Id. ¶ 2.)

A. Declaration of a National Disaster

On the day of the attacks, President Bush signed a major

disaster declaration for all five New York City counties, in order to provide assistance to New York State. This declaration activated the Federal Response Plan ("FRP"), which establishes the process and structure for the Federal Government to provide assistance to local agencies when responding to any major disaster or emergency declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act ("Stafford Act"), 42 U.S.C. § 5121, et seq. (Id. ¶ 44.) The Stafford Act was enacted in 1974 and its purpose is "to provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from such disasters . . . ." 42 U.S.C. § 5121(b).

The FRP, which is administered by the Federal Emergency Management Agency ("FEMA"), includes twelve Emergency Support Functions. Each Emergency Support Function describes the specific type of support it provides to local authorities and identifies the Federal agency responsible for lending and assisting in that support. (Am. Compl. ¶ 45.) Emergency Support Function No. 10, "Hazardous Materials Annex" ("ESF #10"), provides 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. Part of the purpose of ESF #10 is to coordinate the provision of federal support and 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." (Id. ¶¶ 46-47.) The EPA is the designated lead agency for any activation of ESF #10. (Id. ¶ 46.) FEMA's mission assignment to the EPA, immediately after the collapse of the World Trade Center (hereinafter referred to as "WTC Collapse"), included responsibilities such as "assessing 'all hazardous substance and oil releases throughout the NY, NY Metropolitan Area resulting from the World Trade Center attack'" as well as sampling, staging, securing and disposing of all hazardous materials and oil releases. (Id. ¶ 46.)

ESF #10 places the response mechanisms of the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP") within the FRP coordination structure. (Id. ¶ 48); see also 40 C.F.R. § 300.3(d) ("the NCP applies to and is in effect when the FRP and some or all of its Emergency Support Functions are activated.") The NCP are regulations enacted pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), a statute enacted in 1980 which provides statutory authority and funding for the clean-up of serious threats to public health and the environment. See 42 U.S.C. § 9601, et seq. 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. (Am. Compl. ¶ 49.) The NCP is also the implementing regulation for the EPA's Superfund program.*fn1 (Id.) The EPA is the agency responsible under the NCP for discharges or releases of hazardous substances into or threatening an inland zone.

B. WTC Collapse and the Presence of Pollutants and Hazardous Substances

The collapse of the WTC towers and nearby buildings created a 16-acre disaster zone. The initial fire caused by the impact of the planes, the "pancaking" or downward implosion of the buildings, and the subsequent fire, released hazardous substances into the environment, and deposited an estimated one million tons of dust on Lower Manhattan and surrounding areas. This dust was composed of a mixture of building debris and combustion byproducts, which included asbestos, lead, glass fibers and concrete dust. Fires at the WTC site emitted harmful pollutants into the air, including particulate matter, various metals, polychlorinated biphyenyls (PCBs), volatile organic compounds (VOCs), polycyclic aromatic hydrocarbons (PAHs) and dioxin. (Am. Compl. ¶¶ 42-43.) According to Plaintiffs, the exact composition of the building materials used in the WTC towers is not known, but some of the major hazards were "readily apparent," including: 2000 tons of asbestos used in the construction of the towers; fiberglass and Freon refrigerants used in the air conditioning systems; an estimated 424,000 tons of concrete, sheet, gypsum, fiberglass and glass; approximately 50,000 personal computers each containing approximately 4 pounds of lead; glass; PCBs; mercury from light bulbs and computers; and 130,000 gallons of transformer oil. (Id. ¶ 52.) Based on the 1993 terrorist attacks on the World Trade Center, the EPA already knew that the WTC towers contained roughly 400 to 1,000 tons of asbestos. Moreover, the EPA had general knowledge that the "uncontrolled burning of building materials releases toxic chemicals and that cement dust is very caustic because the EPA has studied incineration, demolition and pollution and debris they create for many years." (Id. ¶¶ 54-55.)

The EPA began collecting samples of the bulk dust on September 11, 2001 to determine the level of asbestos present. By September 12, 2001, the EPA knew that one of the first samples it had tested contained 4% asbestos, four times higher than the EPA threshold for danger, 1%, which is also the standard the EPA employed as the point at which asbestos in WTC dust becomes a danger to human health.*fn2 One hundred and seventy bulk dust samples were taken by September 17, 2001 and 30% of those were found to contain levels of asbestos higher than 1%. (Id. ¶ 56.) When conducting these tests, the EPA used a 20-year-old technology, polarized light microscopy ("PLM"), known to be far less sensitive in detecting asbestos than the newer transmission electron microscopy ("TEM") or scanning electron microscopy ("SEM") technologies.*fn3 (Id. ¶ 56.) The EPA did use TEM, however, when it tested its own building at 290 Broadway in Lower Manhattan.

Not satisfied with government reports and unable to obtain monitoring data from government agencies, several organizations and independent researchers conducted their own tests. These tests revealed asbestos at levels of 3% and 4.5%, high levels of fiberglass and the substance used to replace it, and other types of mineral fibers.*fn4 Studies also showed that the EPA tests could not detect the finer-particle, more hazardous form of asbestos which was also released into the environment by the WTC Collapse.

An environmental toxicologist for HP Environmental Inc., Hugh Granger, took samples of residual dust from both inside and outside two office buildings near Ground Zero. Granger used the TEM method because the asbestos fibers found "were considerably smaller than usual." (Id. ¶ 60.) The samples revealed that close to 90% of the asbestos fibers were less than 5 microns in length. According to Granger, the analytical methods used by the EPA could not detect such short fibers. (Id. ¶¶ 59-60, 76-77.)

Another study was conducted by Dr. Thomas Cahill and the Delta Group, a group of scientists convened by the U.S. Department of Energy to monitor major air pollution incidents around the world. Measurements were taken a mile north of Ground Zero, starting weeks after September 11, 2001. Dr. Cahill found a level of fine particulates in the outdoor air that was higher than levels measured at the Kuwaiti oil field fires during the Gulf War. (Id. ¶ 65.) Plaintiffs allege that the existence of such a dangerously high level of fine particulates in the outdoor air, a mile away from Ground Zero, indicates the likelihood that such a level existed in the WTC dust that permeated indoor air. (Id. ¶ 66.)

Private tests also found high levels of polycyclic aromatic hydrocarbins (PAHs), a group of well-known carcinogens, in the WTC dust. The EPA did not test for PAHs or other toxic organic chemicals. (Id. ¶ 68.)

Various other articles and studies by scientists also addressed the hazardous nature of the WTC dust. (Id. ¶¶ 69-74.) One such study, the largest in terms of buildings analyzed, was performed by the New York City Department of Health and Mental Hygiene and the U.S. Department of Health and Human Services, Agency for Toxic Substances and Disease Registry. The study collected dust and air samples in and around 30 residential buildings between November 4 through December 11, 2001 in Lower Manhattan. The final report was issued in September, 2002. (Id. ¶ 210.) According to a report by the EPA's Office of the Inspector General issued on August 21, 2003 ("OIG Report"), 85% of the apartments had been cleaned prior to that sampling. However, the study concluded that almost 20% of the apartments still had interior dust with asbestos at above 1%. (Id. ¶ 76.)

C. The EPA's Actions

According to Plaintiffs, Defendants EPA, Whitman and Horinko undertook a series of actions "which consistently exemplif[ied] a concerted effort on the part of the EPA to avoid responsibility for the interior clean-up of buildings contaminated by the WTC Dust despite its legal obligations to do so and despite the health risk such contaminants have posed to the occupants." (Id. ¶ 3.) These actions included statements made by the EPA, Whitman and Horinko, the failure of Defendants to uphold their obligations under law, the improper delegation of indoor clean-up to the City of New York, and the inadequate voluntary clean-up program implemented belatedly in 2003.

1. Statements Made by the EPA and Whitman

Although tests revealed high levels of asbestos, on September 17, 2001, Federal and New York City officials allowed thousands of people to return to their homes and workplaces in Lower Manhattan and Brooklyn, without any proper clean-up of those areas.*fn5 (Id. ¶ 2.) The EPA and Whitman issued a number of press releases which falsely represented that the air in and around Lower Manhattan was safe to breathe, and that there were no significant health risks, although at the time they issued these statements, the EPA and Whitman did not have sufficient data and analyses to substantiate these statements. (Id. ¶ 4.)

In a September 13, 2001 press release, the EPA assured the public that the air around Ground Zero was relatively safe and stated that "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." (Id. ¶ 126.) In the press release, Whitman also stated that the "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." (Id.)

The EPA's Office of Inspector General ("OIG") Report of August 21, 2003 listed the following key statements from EPA press releases, made in the days and months following the September 11, 2001 attack:

* September 16, 2001: "Our tests show that it is safe for New Yorkers to go back to work in New York's financial district" (quoting Assistant Secretary of Labor for [Occupational Safety and Health Administration]). "The good news continues to be that air samples we have taken have all been at levels that cause us no concern" (quoting Whitman). "The Agency is recommending that businesses in the area planning to reopen next week take precautions including cleaning air conditioning filters and using vacuums with appropriate filters to collect dust."

* September 18, 2001: "We are very encouraged that the results from our monitoring of air quality and drinking water conditions in both New York and near the Pentagon show that the public in these areas is not being exposed to excessive levels of asbestos or other harmful substances. Given the scope of the tragedy last week, I am glad to reassure the people of New York and Washington, DC that their air is safe to breath [sic] and the water is safe to drink" (quoting Whitman).

* September 21, 2001: "EPA Disaster Response Update NYC Monitoring Efforts Continue to Show Safe Drinking Water, Air" (press release heading). "New Yorkers and New Jersians need not be concerned about environmental issues as they return to their homes and workplaces. Air quality monitoring data in residential areas has been consistently reassuring" (quoting Whitman).

* October 3, 2001: "Data Confirms No Significant Public Health Risks; Rescue Crews and Nearby Residents Should Take Appropriate Precautions . . ." (press release sub-heading).

* October 30, 2001: "While we have fortunately not found levels of contaminants that pose a significant health risk to the general public, our efforts to monitor the area and keep the public informed of our findings have not waned."

(Id. ¶ 128.) Plaintiffs state that these statements are remarkable given that the EPA's own tests revealed that the WTC dust contained concentrations of asbestos at levels above the "so-called 1% danger threshold." (Id. ¶ 129.)

The EPA made various other statements to the public that minimized the risks posed to the public by the WTC dust and contained an overriding message of reassurance. On September 13, 2001, The New York Times reported that Whitman had said that "some chemicals that were of theoretical concern in the hours after the collapse, especially lead, . . . had not been detected in quantities high enough to raise alarm." (Id. ¶ 135.) However, tests conducted by the EPA on September 26, 2001 revealed elevated readings for lead; these results were not released until the end of October, 2003. On October 28, 2003, at a Congressional hearing, the EPA disclosed that 13.5% of apartments tested showed elevated lead levels. (Id. ¶ 75.)

In the same September 13, 2001 article in The New York Times, Whitman was reported to have also stressed that asbestos levels were a concern only to rescue workers and work crews and not to residents near the Ground Zero site. This was echoed by an EPA spokesperson, who stated on or about September 18, 2001 that "there are small pockets of asbestos" and that the concern was not for the city or residents, but for the rescue workers. On September 14, 2001, an Associated Press article reported a statement made by Whitman the previous day that "there's no immediate health threat to people outside the ground zero area." Also on September 14, 2001, the EPA and the Occupational Safety and Health Administration ("OSHA") reported in a press release that although the EPA had found variable asbestos levels in the dust and debris, the EPA continued to believe there was no significant health risk to the general public and that appropriate steps were being taken to clean up the dust and debris. The EPA continued to make a distinction between any potential risks to residents and workers at Ground Zero in press releases and articles throughout the next several months. (Id. ¶ 135.)

In all of the EPA's public statements about asbestos, the EPA repeatedly referred to the fact that 1% of asbestos or above constitutes "asbestos material" or "asbestos containing material." However, the EPA failed to disclose that 1% asbestos is not a health-based standard, but pertains to whether solid asbestos building materials should be removed professionally. Levels of less than 1% can still pose a danger. (Id. ¶ 136.)

According to Plaintiffs, at the time the EPA made these reassuring statements, they did not have sufficient information and data. The EPA's Office of Research and Development lacked the monitoring data necessary to make health risk evaluations for exposure to the air in the first few days after the WTC collapse.

Sampling of several potential pollutants did not even begin until September 16, 2001, and in many cases, results of those samples were not available by September 18, 2001, when the EPA made its statement that the public could return to Lower Manhattan. (Id. ¶ 133.)

The EPA's own Office of the Inspector General criticized the EPA's response to the WTC Collapse. The OIG Report stated that the EPA did not have available data and information to support the EPA's statement in the September 18, 2001 press release that the air was "safe" to breathe:

At [the time the EPA made the announcement], air monitoring data was lacking for several pollutants of concern, including particulate matter and polychlorinated biphenyls (PCBs) . . . . An EPA draft risk evaluation completed over a year after the attacks concluded that, after the first few days, ambient air levels were unlikely to cause short-term or long-term health effects to the general population. However, because of numerous uncertainties -- including the extent of the public's exposure and a lack of health-based benchmarks -- a definitive answer to whether the air was safe to breathe may not be settled for years to come. (Id. ¶ 132.)

2. The EPA's Legal Responsibilities Under Federal Law According to Plaintiffs, the EPA has clear authority to respond to the release of hazardous substances that may present an imminent and substantial danger to the public health or welfare. (Id. ¶ 155; see 42 U.S.C. § 9604.)

In addition to being given the lead role under the FRP and ESF #10 pursuant to the Stafford Act, the EPA was specifically mandated to clean up building interiors following the September 11, 2001 attacks by provisions of Presidential Decision Directive 62 ("PDD 62"), signed by President Clinton in 1998.*fn6 PDD 62 assigns lead responsibility to the EPA for cleaning up buildings and other sites contaminated by chemical or biological agents as a result of terrorism. In her testimony before a Senate Subcommittee in November, 2001, Whitman acknowledged this mandate:

Under the provisions of PDD 62, signed by President Clinton in 1998, the EPA is assigned lead responsibility for cleaning up buildings and other sites contaminated by chemical or biological agents as a result of an act of terrorism. This responsibility draws on our decades of experience in cleaning up sites contaminated by toxins through prior practices or accidents. (Id. ¶ 142.) Horinko also testified that pursuant to PDD 62, the EPA is responsible for clean-up of the inside of buildings in the event of terrorism or a disaster. (Id. ¶ 143.) The Department of Homeland Security confirmed the EPA's mandate in the July 2002 National Strategy for Homeland Security, which stated that after a "major incident," the EPA is responsible for decontamination of affected buildings and neighborhoods and providing advice and assistance to public health authorities in the determination of when it is safe to return to affected areas. (Id. ¶ 145.) Plaintiffs allege that, according to PDD 62, the EPA had to maintain lead responsibility of clean-up of building interiors, as well as outdoor air.

The EPA is also part of the United States Government Interagency Domestic Terrorism Concept of Operations Plan ("CONPLAN"), which is a Federal signatory plan among six Federal departments. CONPLAN provides guidance to Federal, State and local agencies on how the Federal government should respond to a terrorist attack in a manner consistent with PDD 39 and 62. CONPLAN clearly states that applicable statutory authorities are modified by PDD 39 and 62. (Id ¶ 150.) Both Whitman and Horinko were aware of CONPLAN. (Id. ¶ 151.)

The EPA is allowed to assign lead responsibility for a portion or all of a removal activity, pursuant to an agreement with a State or a political subdivision thereof. See 40 C.F.R. § 30.6205.*fn7 However, Plaintiffs allege that the EPA is prohibited from doing so if a Presidential Directive dictates otherwise. (Id. ¶ 149.) As previously stated, Plaintiffs appear to interpret the fact that PDD 62 specifically mandated that the EPA take lead responsibility for cleaning up buildings and other sites contaminated by hazardous and chemical agents as just such a prohibition. (Id. ¶ 141.)

Even in the absence of PDD 62, Plaintiffs allege that the NCP prohibited the EPA from delegating the responsibility to the City. According to the NCP, the EPA can give away lead responsibility to a political subdivision of a State only "if both the State and EPA agree" to do so and the political subdivision has the "necessary capabilities and jurisdictional authority." (Id. ¶ 152; see also 40 C.F.R. § 35.6205.)

Plaintiffs claim that "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 clean-up of Lower Manhattan and Brooklyn." (Id. ¶ 152.)

Moreover, Plaintiffs state that, as administrator of the NCP, the EPA has the responsibility through On-Scene Coordinators ("OSCs"), who are predesignated by the EPA, to direct response efforts and coordinate all other efforts at the scene of a release. Hence, Plaintiffs allege that even if the EPA could delegate responsibility for the clean-up, it could not do so completely and must retain some responsibility. (Id. ¶ 153; see 40 C.F.R. § 300.175.)

3. The EPA's Delegation of Indoor Clean-Up to the City of New York

Initially, in the immediate aftermath of the September 11, 2001 attacks, Whitman made statements indicating that the "EPA would fulfill its mandate to take the lead in the environmental clean-up." (Id. ¶ 121.) In the September 14, 2001 issue of Newsweek, Whitman is quoted as saying "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." (Id. ¶ 122.) She stated in a New York Daily News article, published three days after the attacks, that "The President has said, 'Spare no expense, do everything you need to do to make sure the people of the city and down in Washington are safe as far as the environment is concerned.'" (Id ¶ 121.)

The EPA soon switched course, however, and made many statements that the EPA was not responsible for the clean-up of building interiors and did not have jurisdiction over indoor air quality.*fn8 (Id. ¶ 160.)

Instead of taking the lead in the clean-up efforts of building interiors, the EPA allegedly passed the responsibility off to the City of New York ("the City"). (Id. ¶ 161.) The EPA then failed to ensure that the City adhered to EPA cleaning standards for removal of hazardous materials. Instead, the EPA deferred to the City's judgment, although the EPA and Whitman have admitted that EPA standards are materially stricter than those the City endorsed. (Id. ¶ 8.) This was contrary to NCP regulations which state that "Only those state standards that . . . are more stringent than Federal requirements may be applicable or relevant and appropriate." 40 C.F.R. § 300.400(g)(4).

According to Plaintiffs, because the City was ill-equipped to handle the clean-up, the City, with the EPA's knowledge and consent, passed the responsibility for testing and remediation of indoor spaces to individual building owners and tenants. (Id. ¶ 163.) Individuals were referred to the New York City Department of Health (NYCDOH) for recommendations on reoccupying homes and businesses. The NYCDOH guidelines, recommended by New York City and endorsed by the EPA, were grossly inadequate. The guidelines included instructions to wear masks, long-sleeved clothing and closed-toe shoes while following the NYCDOH cleaning procedures. The guidelines also advised residents to remove dust with a wet rag or wet mop which could then be rinsed under running water. NYCDOH recommended using HEPA (high efficiency particulate air) filtration vacuums when cleaning up apartments, if possible; if not possible, NYCDOH recommended that HEPA bags and dust allergen bags be used with a regular vacuum. In the alternative, NYCDOH suggested wetting down and removing the dust in accordance with its guidelines. The guidelines also recommended shampooing and vacuuming carpets and upholstery, and using air purifiers to remove dust from the air. (Id. ¶ 166.)

The EPA did not give any precautionary instructions and did not instruct residents to have the cleaning done professionally, although this is their conceded position. Whitman acknowledged in "The NewsHour with Jim Lehrer" on April 16, 2002 that professional cleaning was mandated for an adequate cleaning. (Id. ¶ 167.) The EPA also did not inform the public that the NYCDOH guidelines were meant to apply only to spaces that had been pre-cleaned or tested for asbestos and other toxic substances, as it later claimed. In addition, the EPA did not urge the City to use the most up-to-date testing method for asbestos; the City advised building owners to use an older technique which did not reveal all asbestos fibers. (Id.)

Plaintiffs argue that the EPA's careless handling of indoor clean-up in Lower Manhattan was at odds with the heavy regulation of asbestos by the Federal government. The EPA has listed asbestos as a Group A (known) human carcinogen. (Id. ¶ 89.) Exposure to asbestos can lead to, among other diseases, asbestosis, lung cancer and mesothelioma.*fn9 (Id.) Asbestos is regulated under various Federal statutes, including the Clean Air Act, the Toxic Substances Control Act, the Emergency Planning and Community Right-to-Know Act and CERCLA. Applicable regulations are found in the National Emission Standards of Hazardous Air Pollutants, standards promulgated by OSHA,*fn10 and regulations under the Toxic Substances Control Act. (Id. ¶¶ 91-112.)

In cleaning its own building in Lower Manhattan, 290 Broadway, the EPA utilized the most up-to-date method of asbestos testing, TEM, when testing the indoor dust. In addition, the entire building was professionally and systematically cleaned, displacing all EPA personnel for one week. This process was far more thorough and stringent than the procedures set forth in the NYCDOH guidelines. Yet, the EPA did not disclose the fact of this cleaning until months after the WTC Collapse, and instead, minimized the steps it had taken. Plaintiffs state that 290 Broadway is beyond the geographical area covered by the EPA's voluntary clean-up program initiated in mid-2002. (Id. ¶ 140.)

Plaintiffs argue that as a result of the EPA's actions, there has been inadequate indoor hazardous materials remediation, and a threat to public health remains. Many residential and commercial spaces were cleaned as if the dust did not contain hazardous materials. About 40% of downtown residents reported that they were not given any instructions for clean-up or hazardous remediation. Even when residents and building owners had notice of the instructions, many failed to do any remediation, or to do it properly. Often, the reasons for this included the lack of financial resources of residents and business owners and inadequate enforcement measures. (Id. ¶¶ 170-183.) The NYCDOH enforcement measures consisted of a letter sent to building owners around February, 2002, requesting documentation of clean-up measures taken. Plaintiffs believe that only a small number of landlords responded to this request. (Id. ¶ 186.)

4. The EPA's Voluntary Clean-Up Program

Under pressure from EPA Ombudsman hearings held in February and March, 2002,*fn11 politicians and the community, in February, 2002, Whitman announced the establishment of a task force to address the issue of indoor air. According to a former EPA Chief of Staff, 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." (Id. ΒΆ 191.) In April, 2002, before the task force initiated any actual interior clean-up program, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.