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In re World Trade Center Disaster Site Litigation

October 17, 2006

IN RE WORLD TRADE CENTER DISASTER SITE LITIGATION ET.AL.


The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.

OPINION DENYING AND GRANTING MOTIONS FOR JUDGMENT ON THE PLEADINGS AND FOR SUMMARY JUDGMENT

It took ten months to remove the debris that resulted when the terrorists crashed their hijacked airplanes into the Twin Towers of the World Trade Center on September 11, 2001. Thousands of workers converged on the site, toiling day and night, seven days a week until they completed their jobs. They risked their lives from shifting debris, fires, smoke, and acrid and polluted air to complete their work in record time, in an extraordinary effort to close the gaping hole caused by the terrorists to the landscape and psyche of New York and the nation.

I consider in this Opinion the claims of approximately 3,000 of these workers, claiming permanent injury to their respiratory systems and their health and vitality, and a shortening of their lives. They claim that the City and its contractors, and other Defendants, were negligent in monitoring the air and assuring appropriate safety in the workplace, particularly in not providing adequate respiratory equipment, and assuring proper use thereof.

Defendants now move to dismiss these claims, contending that they are immune from suit pursuant to state and federal laws providing immunity for actions undertaken in response to a disaster created by an enemy attack on the state and nation.

Plaintiffs argue that Defendants are not immune, particularly in light of Congress' clear contemplation, in the Air Transportation Safety and System Stabilization Act of 2001, that the City was exposed to numerous claims resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001, and granting to the City a cap to limit its potential liability stemming from such claims. Furthermore, Plaintiffs argue, Congress again recognized the City's exposure to suits such as those at bar by granting a one billion dollar fund to the City to pay for the City's losses, liabilities and expenses, enabling the City to create a captive insurance fund to insure its exposure.

I discuss the various motions of the City and other Defendants in this Opinion and hold that the Defendants are benefited by limited immunity, limited according to time and activity, and that the issues are fact-intensive and cannot be decided on motion at this juncture. My conclusion also expresses some suggestions for the future progression of these cases, to enable the parties to begin discussions of settlements and to prepare for trial.

TABLE OF CONTENTS

I. INTRODUCTION.....4

II. THE FACTUAL BACKGROUND.....5

A. The Declarations of Emergency: The Immediate Government Response.....7

B. The City Asserts Control and the Recovery Operation Commences.....10

C. The Development of Health and Safety Standards at the Site.....13

D. The Implementation and Enforcement of Health and Safety Standards.....16

E. The Role of Federal Agencies.....19

1. The Activation of Federal Assistance.....19

2. The Role of the Occupational Safety and Health Administration.....21

3. The Role of the Environmental Protection Agency.....23

4. The Role of the Army Corps of Engineers..... 25

F. The Rescue and Recovery Effort Comes to a Close.....26

G. The Continuing Vitality of Applicable Safety Standards and Labor Laws .....27

III. THE PROCEDURAL BACKGROUND AND THE PENDING MOTIONS..... 28

A. The Procedural Background..... 28

B. The Pending Motions.....32

IV. THE PREEMPTIVE EFFECT OF THE ATSSSA..... 36

A. The Doctrine of Preemption..... 37

B. The Alleged Preemptive Effect of the ATSSSA and the Captive Insurance Fund .....39

C. Discussion.....41

V. THE MOTIONS FOR JUDGMENT ON THE PLEADINGS-STATE IMMUNITY..... 44

A. The Standard of Review..... 44

B. The New York State Defense Emergency Act..... 45

1. The Immunity Provision of the SDEA.....46

2. The Continued Vitality of the SDEA..... 47

3. Qualifying Laws under the SDEA..... 49

4. Civil Defense Activities and the Requirement of Good Faith...... 52

a. Civil Defense Activities.....52

b. The Requirement of Good Faith...... 53

c. Discussion..... 56

C. The Argument of Immunity Under the New York Disaster Act.....61

1. The Limited Scope of the Disaster Act's Application..... 62

2. The Extension of Disaster Act Immunity to Non-Government Actors..... 65

D. New York State Common Law Immunity.....66

VI. THE MOTIONS FOR SUMMARY JUDGMENT-FEDERAL IMMUNITY..... 67

A. Standard of Review.....67

B. Derivative Federal Immunity..... 68

1. The Relevant Case Law..... 69

2. Application to the Rescue and Recovery Efforts at Ground Zero.....74

C. Stafford Act Immunity..... 80

D. Other Bases for Federal Immunity..... 82

VII. THE MOTIONS BY THE LESSEES..... 83

A. The Work Performed by the Lessee Defendants..... 84

1. The Work Performed by Con Edison..... 84

2. The Work Performed by the Silverstein Defendants.....86

B. Plaintiffs' Supplemental Submissions..... 87

C. Alleged Grounds of Liability..... 89

1. Dismissal of Claims Pursuant to New York Labor Law for Failure to Show the Necessary Degree of Ownership or Control..... 90

2. Dismissal of Claims Sounding in Negligence in the Absence of Any Duty Owed ..... 95

3. Dismissal of all Remaining Claims for Failure to Show any Underlying Claim..... 97

VIII. CONCLUSION..... 97

I. INTRODUCTION

The terrorist attacks of September 11, 2001 inflicted a gaping wound on the structure and spirit of New York City. But it did not defeat the City, nor its population. As the nation began to absorb the enormity of the devastation and loss of lives that resulted from the terrorist attacks, an army of responders-instrumentalities of federal, state and city governments, private contractors, and thousands of firemen, policemen, paramedics, and construction workers-descended on the site of the devastation in New York City, initially to participate in the desperate search for survivors and, after all hope of life had faded, to assist in the recovery of remains and the clearing of debris. Working night and day, seven days a week, overcoming intense heat, persistent fires, and noxious fumes, the work was done and the site was cleared, in just under ten months-record time.

The extraordinary efforts of the men and women who worked on the site took a toll. A few have died, with at least one of their deaths having been attributed to the poisons they breathed while looking for survivors and clearing the debris. Anthony DePalma, Debate Revives as 9/11 Dust is Called Fatal, N.Y. Times, April 14, 2006, at B2. Many others allege serious respiratory injuries, threatening to shorten their lives and afflict their remaining years. Anthony DePalma, Illness Persisting in 9/11 Workers, Big Study Finds, N.Y. Times, Sept. 5, 2006, at A6. A study released by doctors at Mount Sinai Medical Center shows that approximately 70 percent of the 10,000 workers who were tested reported that they suffer from new or substantially increased respiratory problems since September 11. Id. In all, more than 3,000 of these men and women have filed suit in this Court, and even more suits are likely as respiratory injuries continue to manifest themselves. Under procedures outlined in the New York General Municipal Law section 50-e, allowing for leave to serve notice of claims upon the City of New York outside of the prescribed 90-day period, hundreds of additional persons have gained leave by the New York Supreme Court also to file suits, adding to the lawsuits consolidated before me. Abdelrehim v. City of New York, 2006 WL 2193044 (S.D.N.Y. Aug. 3, 2006).

The main Defendant in these lawsuits is the City of New York. The City's Department of Design and Construction coordinated all the work on the site, drawing on the expertise of other City agencies, for example, the City Office of Emergency Management, and of the federal and state governments. The Port Authority of the States of New York and New Jersey, the owner of the World Trade Center site, also had a role, and it, too, is named as a Defendant. The site was divided into quadrants, and in each, a general contractor and numerous subcontractors undertook the work; they also are Defendants. Finally, various entities with a property interest in buildings at and around the World Trade Center site, namely Verizon Communications, Consolidated Edison, the Silverstein Entities and the Westfield Entities, are named as Defendants.

II. THE FACTUAL BACKGROUND*fn1

The devastation wrought by the terrorist attacks of September 11, 2001 was unimaginable. One and Two World Trade Center, once great symbols of the City's economic strength and vitality, came crashing down, consuming and entombing the remains of almost 3,000 people who were caught inside the buildings. Three World Trade Center, Four World Trade Center, and Six World Trade Center sustained extensive fire damage. Seven World Trade Center caught fire from the falling debris of the Twin Towers and, after burning unimpeded for several hours, also collapsed. See In re September 11 Property Damage and Bus. Loss Litig. (Aegis Ins. Serv. v. The Port Authority), 2006 WL 62019 at *1 (S.D.N.Y. Jan. 12, 2006) (hereinafter 7WTC). The shopping malls and parking lots beneath the World Trade Center complex sustained massive structural damage and partial collapse. The World Financial Center and the glass enclosure of its "Winter Garden," the Verizon Building at West and Vesey Streets, the Deutsche Bank Building at 90 West Street, the St. Nicholas Church at Barclay and West streets, and 125 Cedar Street also sustained extensive damage.

Rescue and recovery workers, and the contractors and government agencies overseeing their efforts, were faced with the daunting task of conducting an emergency response in a hellish setting: a smoldering pile of twisted and entangled shapes of rods and beams towering over twelve stories high and weighing more than one and half million tons, harboring fires within and emanating clouds of noxious dust and vapors. The fires took three months to go out, until December 2001. Conditions were further exasperated by the nature of the various substances present at the site. Thousands of tons of hazardous materials were released into the air of lower Manhattan, including asbestos, lead, mercury, cadmium, polychlorinated biphenyls ("PCBs"), benzene, and chromium, among others, creating a mixture of toxic gases and ultra-fine particles never before experienced on such a scale. As Plaintiffs' Master Complaint alleges: asbestos, lead, and mercury from such items as personal computers, main frame computers, and copy machines; mercury from florescent lights; plastics, polyvinyl chloride insulations of cables, nylon carpeting, and other materials containing and/or producing dioxins and other harmful materials when burned; benzene from the jet fuel and other petroleum products stored in the towers; lead ammunition from the on-site Secret Service shooting range; and arsenic, lead, mercury and chromium stored in the U.S. Customs Laboratory.

(Pls.' Master Compl. ¶ 376, dated Aug. 19, 2005.)

In the initial days following the attacks of September 11, the primary focus of all at the site was rescuing any potential survivors. In re World Trade Center Disaster Site Litig. (Hickey v. Port Authority of N.Y. & N.J.), 270 F. Supp. 2d 357, 372 (S.D.N.Y. 2003); aff'd in part, dismissed in part by McNally v. The Port Authority, 414 F.3d 352 (2d Cir. 2005) (hereinafter Hickey). Unfortunately, there were too few and, by September 29, 2001, all hope of finding lives having faded, the search for survivors closed, and efforts turned to "demolition of the ruined structures of the Towers, removal of thousands of tons of debris, and cleanup of the World Trade Center site[.]" Hickey, 270 F. Supp. at 372.

A. The Declarations of Emergency: The Immediate Government Response

In the aftermath of the attacks, government leaders at the local, state and federal levels took immediate action to secure physical assistance and funding for the recovery effort at the World Trade Center site. The Mayor of the City of New York, the Governor of the State of New York, and the President of the United States all declared states of emergency, authorizing and directing government agencies and officials to undertake those measures necessary to assist the City of New York in its process of recovery.

Pursuant to the authority granted him under the Executive Law of New York, N.Y. Exec. Law § 24 (McKinney 2006), the Mayor of the City of New York, Rudolph W. Giuliani, issued a Mayoral Order on September 11, 2001, proclaiming a local state of emergency based on the danger to public safety posed by the attacks. In declaring a state of emergency, the Mayor directed "the Police, Fire and Health Commissioners and the Director of Emergency Management to take whatever steps are necessary to preserve the public safety and to render all required and available assistance to protect the security, well-being and health of the residents of the City." Proclamation of a State of Emergency, Mayor Rudolph W. Giuliani (September 11, 2001). In subsequent proclamations, and pursuant to Executive Law section 24(1)(g) allowing for suspension of local laws and regulations during states of emergency, the Mayor directed that local regulations governing the leasing of real property to the City be suspended so as to "permit the immediate leasing of office and other space for use by City agencies in order to continue to provide essential services and critical functions of the City." Proclamation of State of Emergency, Mayor Rudolph Giuliani (Sept. 14, 2001). The Proclamation of Emergency was renewed by Mayoral Order every five days, as mandated by the Executive Law, throughout the duration of the recovery and cleanup efforts at the World Trade Center site, through the end of June 2002. See e.g., Proclamation of a State of Emergency, Mayor Rudolph W. Giuliani (Sept. 11, 2001); Proclamation of State of Emergency, Mayor Michael R. Bloomberg (June 29, 2002).

A disaster emergency was also declared for the State of New York by Executive Order of Governor George E. Pataki on September 11, 2001, pursuant to the authority granted him under the New York State and Local Natural Disaster and Man-Made Disaster Preparedness Law ("Disaster Act"). N.Y. Exec. Law §§ 20-29-g (McKinney 2006). Noting the "unspeakable atrocities" that occurred in New York City, Washington D.C., and Pennsylvania, Governor Pataki "direct[ed] the implementation of the State Disaster Preparedness Plan and authorize[d]," various state agencies to take "all appropriate actions to assist in every way all persons killed or injured and their families, and protect state property and to assist those affected local governments and individuals in responding to and recovering from this disaster, and to provide such other assistance as necessary to protect the public health and safety[.]" Exec. Order No. 113 of Governor George E. Pataki (Sept. 11, 2001), N.Y. Comp. Codes R. & Regs. tit. 9, § 5.113 (2005).

On September 14, 2001, President George W. Bush, acting pursuant to the National Emergencies Act, 50 U.S.C. §§ 1601-1651 (2006), declared the existence of a national state of emergency "by reason of the terrorist attacks at the World Trade Center . and the Pentagon, and the continuing and immediate threat of further attacks on the United States." Proclamation No. 7463, 66 Fed. Reg. 48, 199 (Sept. 14, 2001). The declaration was deemed effective as of September 11, 2001. The declaration served also to activate the provisions of the Stafford Disaster Relief and Emergency Assistance Act ("Stafford Act"). 42 U.S.C. §§ 5121-5206 (2006). Pursuant to the Presidential declaration of a national emergency, the Director of the Federal Emergency Management Agency ("FEMA"), Joe M. Allbaugh, declared that a national emergency existed in the State of New York and, in the interest of ensuring the provision of federal assistance, authorized FEMA "to allocate from funds available for these purposes, such amounts as [are] necessary for Federal disaster assistance and administrative expenses." 66 Fed. Reg. 48,682 (Sept. 21, 2001).

B. The City Asserts Control and the Recovery Operation Commences

The City response began mere moments after the terrorist attacks on New York City. American Airlines Flight 11 crashed into One World Trade Center at 8:40 a.m. By 8:50 a.m. on September 11, the City, initially through the Fire Department, had established its Incident Command Post and had asserted control over the World Trade Center complex and the surrounding areas. The rescue and recovery efforts at the site were thereafter coordinated through the City Office of Emergency Management ("OEM"), with the Fire Department designated as the incident commander for the site, and with the City Department of Design and Construction ("DDC") assuming total control over all aspects of safety, construction, demolition, and cleanup activities at the site.

On September 12, 2001, the DDC set up a temporary command center at Public School IS 89 in lower Manhattan, immediately to the North of the World Trade Center site, and commenced daily meetings to organize rescue and recovery efforts. Of utmost concern to the DDC was securing the World Trade Center site and limiting access to the area. Together with other City agencies, including the OEM, the DDC established stringent protocols determining "not only who would have access to the site, but also how that access would take place and under what constraints." (Pls.' Decl. at 11.) The City further enlisted the Port Authority of New York and New Jersey (the "Port Authority") to assist in maintaining the security of the perimeter and to report observed safety protocol discrepancies. (Pls.' J.A., Vol. 1, Ex. 8.)

The City also engaged private contractors for the recovery effort. On September 15, 2001, FEMA confirmed that contracts could be awarded without need for competitive bidding under the emergency conditions existing after September 11. (Pls.' J.A. Vol. 4, Ex. 53.) Requirements for competitive bidding having been waived, and pursuant to the Declarations of Emergency issued at the City, State and Federal levels, the DDC engaged Bovis Lend Lease, AMEC Construction Management, Tully Construction Company, and Turner Construction Company to "provide the work necessary for removal and demolition services."*fn2 (Pls.' Decl. at 6.) These four contractors were designated as the City's Primary Contractors and assumed lead roles in the recovery and cleanup efforts at the site.*fn3 (Pls.' J.A. Vol. 8, Ex. 149 (WTC Environmental Health and Safety Plan dated Oct. 15, 2001).) The efforts of the Primary Contractors were coordinated, and supervised, through the DDC at twice daily meetings held at the temporary command center, and by numerous visits to the worksite. By September 14, 2001, the DDC had divided the site into four quadrants with a Primary Contractor assigned as a "construction manager" for each individual quadrant.*fn4 The Primary Contractors acted as supervisors for their individual quadrants, with responsibility for enforcing applicable regulations and ensuring compliance.

Cognizant also of the need for additional space outside of the World Trade Center complex to which all debris from the site could be removed and where searches for evidence and human remains could be conducted, the City re-opened the Fresh Kills Landfill ("Fresh Kills") on Staten Island. As debris was cleared from the site, it was loaded onto barges and transferred by the Department of Sanitation ("DOS") to Fresh Kills for sorting and further inspection.

The DDC, with the assistance of the Port Authority engineers, regulated and controlled the removal of debris from the site, and all issues pertaining thereto. Global Positioning System devices were installed in all vehicles carrying debris from the site, allowing the City to improve the efficiency of the debris removal process. All trucks leaving the site were issued "Load Debris Tickets" containing information about the destination of the truck and its cargo. As debris was removed from the site, the DDC tracked and coordinated the following: "(a) FDNY/Rescue operations; (b) Structural concerns; (c) Progress of work; (d) Weather; (e) Trucking/Traffic operations-Manifests; (f) Safety concerns; (g) Manpower (contractor/CM Staff-site & home office); (h) Equipment on site; (i) Idle equipment; (j) Material deliveries/usage; and (k) Crane issues." (Pls.' J.A. Vol. 1, Ex. 7.) The DDC further controlled all aspects relating to persons working at the site, from regulating shift changes and meal allowances, to payment and payroll.

In the initial days and weeks following September 11, the City and its Contractors, together with public utilities, worked also to restore essential services to the City. The September 11 attacks resulted in the immediate loss of power to all of lower Manhattan and in the destruction of critical components of the gas and steam infrastructure. The Con Edison substations, which had been located directly beneath World Trade Center Seven, were destroyed by fire and by the building's ultimate collapse, resulting in a critical disruption of services to Lower Manhattan. See 7WTC, 2006 WL 62019 at *7-10. Con Edison assumed sole responsibility for restoring electric, gas and steam services and related facilities that were damaged or destroyed due to the events of September 11. The Verizon Building, located at 140 West Street, also sustained severe structural damage, crippling the phone system. Other critical services, such as the transportation system running through the World Trade Center site, were also destroyed and disrupted.

C. The Development of Health and Safety Standards at the Site

Conditions at the World Trade Center site, particularly the hazards posed by the dust and contaminants that enveloped lower Manhattan for weeks following the attacks, posed significant dangers to the rescue and recovery workers. (Pls.' Decl. at 4.) In the months following September 11, and continuing to the close of operations at the site in June of 2002, the Occupational Safety and Health Administration ("OSHA") reported levels of various contaminants, including dioxin and asbestos, in excess of OSHA's permissible exposure limits.*fn5 The debris pile itself, containing what remained of two 110-story towers of concrete and steel, created its own volatile, unstable, and inherently dangerous worksite. Implementation and enforcement of viable and responsive health and safety standards was therefore essential. The workers at the site were presented with a dangerous environment, below and surrounding their work activities, threatening their health and safety.

By September 12, 2001, the City had established itself as the lead entity charged with the development and enforcement of health and safety standards at the site, and had instituted daily meetings with representatives of the Primary Contractors as well as with the FDNY, NYPD, OEM, and OSHA, to organize the rescue and recovery operation. These meetings would continue throughout the duration of the recovery effort. At the request of the DDC, Bechtel Environmental Safety & Health ("Bechtel") also began work at the site on September 12, 2001, assisting the City with monitoring compliance with health and safety standards.

Critical to any health and safety plan was the development of appropriate standards for the use of personal protective equipment ("PPE"), including respirators. Within hours of the collapse, the FDNY advised its employees that respirators should be worn at the site and placed an order for over 5,000 respirators and 10,000 cartridges to provide its employees with the necessary respiratory protection.*fn6 The FDNY also ordered adapters to convert 15,000 "Scott" facemasks, designed for use with self-contained breathing equipment, to be used instead with filter cartridges. The City was also focused on establishing appropriate PPE standards at the site and, by September 21, 2001, plans were in place to:

Develop the job and site specific PPE requirements (DDC); Develop and distribute a list of required PPE to all site emergency response and workers, including posters for staging areas (DDC); Provide respirator fit-testing, maintenance and use information, and comprehensive technical support (NYCDOH); Aggressively promote minimum PPE use in all areas where highest exposures may occur (NYCDOH, NYPD, FDNY, National Guard). (Pls.' Timeline at 2.)

The DDC, together with the New York City Department of Health ("City DOH"), assumed primary responsibility for developing and enforcing PPE requirements, with each agency at various times proclaiming itself as the lead agency in charge of worker health and safety. As a general matter, the DDC assumed responsibility for City and contractor personnel, while the City DOH assumed responsibility for FDNY and NYPD personnel.

On September 20 and 22, the City DOH issued criteria for minimum safety gear to be worn at the site. Similarly, on September 21, and again on October 19, the City DOH issued orders mandating the use of specific protective actions to be taken as personnel and vehicles left the site:

It is hereby ordered that all persons leaving the WTC site shall follow personal hygiene protocols, including but not limited to . removal or HEPA vacuuming of work clothes .

It is further ordered that all vehicles leaving the WTC site be spray washed[.] (Pls.' J.A. Vol. 5, Ex. 64 (City DOH Order dated Sept. 21, 2001).) On October 22, 2001, the City DOH issued a directive specifically addressing the use of safety equipment and respirators:

Personal Protective Equipment Required in Debris Area - Hardhat or helmet-Respirator (half-face reusable) with P100/organic vapor/acid gas (OVAG) filter cartridges (Pls.' J.A. Vol. 6, Ex. 97 (Health Bulletin dated Oct. 22, 2001).)

The DDC, together with Bechtel, also played an important role in establishing health and safety protocols, periodically issuing Environmental Health and Safety Bulletins outlining the applicable safety standards in force at the site. In a Bulletin issued in February 2002, the DDC, after consultation with OSHA representatives, announced its concurrence with the City DOH determination as to minimum respiratory protective equipment:

A half-face respirator with P-100, organic vapor, acid gas filters/cartridges is required within the confines of the slurry wall and for any activity or area outside the slurry wall that generates dust, fumes or vapors[.] (Pls.' J.A. Vol. 6, Ex. 93 (February 2002 Environmental Health and Safety Bulletin).)

D. The Implementation and Enforcement of Health and Safety Standards

From as early as September 12, 2001, the DDC, working primarily with Bechtel, the lead contractor in charge of health and safety concerns at the site, and with the assistance of the Port Authority and the Primary Contractors, began conducting inspections in order to enforce compliance with applicable PPE requirements. Federal agencies, including the Environmental Protection Agency ("EPA") and OSHA, also participated in safety monitoring and assumed a leading role with respect to certain tasks relevant to health and safety monitoring.

By October of 2001, the City had distributed an initial version of its comprehensive Environmental Safety and Health Plan (the "ES&H Plan"), addressing all aspects of worker safety at the site. (See Pls.' J.A. Vol. 6, Ex. 99, 100, 109; Vol. 8, Ex. 149.) Numerous revisions to the Plan would follow. The ES&H Plan operated to define the "minimum acceptable requirements for ensuring workers' safety and health at the World Trade Center (WTC) Emergency Project" and established the hierarchy of responsibility and enforcement. Setting forth its general purpose and the DDC's lead role in its enforcement, the Plan expressly provided as follows:

This ES&H Plan is directly applicable to all work conducted by agency and prime contractor/subcontractor personnel engaged in any activity associated with the cleanup and recovery efforts on the WTC Emergency Project. The DDC has overall responsibility for the site's ES&H program. (Pls.' J.A. Vol. 8, Ex. 149.)

The ES&H Plan provided that the DDC had lead responsibility for "Environmental Health and Safety Services," with the City's Primary Contractors also assuming responsibility for enforcing the terms of the Plan. Specifically, the Plan provided that "each prime contractor and their subcontractors are responsible for implementation, enforcement and compliance with all aspects of this plan." (Pls.' J.A. Vol. 8, Ex. 149.) Site monitoring was also performed by other city, state and federal agencies. The results of such monitoring, and all tests setting forth rates of exposure were to be provided to the City DOH for presentation of a final report to the DDC. Further, the DDC alone had the authority to stop work in the event of workplace hazards.

Separately from the ES&H Plan, the DDC and FDNY, as co-incident commanders at the site, together with the Primary Contractors, four separate employer/employee associations, and OSHA entered into the WTC Emergency Project Partnership Agreement (the "Partnership Agreement") on November 20, 2001, and which was subsequently revised on April 10, 2002. (See Defs.' J.A. Vol. 3, Ex. AO (WTC Project Partnership Agreement, dated April 10, 2002).) The Partnership Agreement affirmed "the value of working in a cooperative, focused and voluntary effort to ensure a safe and healthful environment for everyone involved," and memorialized the parties' commitment to "advance the goal of environmental health and safety" and to "share safety hazard data."

In accordance with the ES&H Plan and the Partnership Agreement, reports documenting the results of these safety compliance inspections were prepared throughout the duration of the recovery effort at the direction of the DDC. The reports prepared by the DDC, and reports and documents prepared by the Primary Contractors and other agencies at the site, highlight ongoing and persistent problems with enforcing compliance with applicable PPE requirements.*fn7 Within the first month of initiating operations at the site, the Primary Contractors, AMEC, Tully, Bovis, and Turner, had all documented problems with PPE compliance and particularly with respirator use. Indeed, problems with ...


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