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Air Today . . . Gone Tomorrow Article National Ombudsman
World Trade Center Hazardous Waste Case: Findings & Recommendations to Date
Robert J. Martin, U.S. Environmental Protection Agency
National Ombudsman, March 27, 2002
BACKGROUND
On September 11, 2001, lower Manhattan was subjected to an
unprecedented terrorist attack on American soil. Specifically, buildings in lower
Manhattan including the twin World Trade Center towers were destroyed and thousand of tons
of waste material, hazardous material, and hazardous waste including but not limited to
asbestos, lead, mercury, cadmium, PCBs, benzene, chromium, etc. were dispersed into the
environment of lower Manhattan. EPA has documented over the years that uncontrolled
release of these quantities and types of hazardous materials into the environment poses an
imminent and substantial threat to the public health and the environment. Evidence adduced
m my hearings demonstrates that the Agency initiated the National Contingency Plan (NCP)
by mobilizing EPA On-Scene Coordinators (OSCs) from all over the country to lower
Manhattan to sample indoor and outdoor air, dust and water to. among other things,
determine the levels of contamination.
Further, the United States Geological Survey (USGS) testified that the
plume of contaminated dust from the attacks was highly caustic with pH readings at least
as high as 12.1. A clear reading of the definition of hazardous waste under the Resource
Conservation and Recovery Act (RCRA), leads to the reasonable conclusion mat all of the
material, released from the attack may be a hazardous waste.
The Director of the Occupational Safety and Health Administration, has
concluded that all dust from the World Trade Center attack must be presumed to be asbestos
containing material (ACM). Thus any cleanup of this dust, should have been and must now be
performed in Ml compliance with the OSHA regulations including but not limited to 29 CFR
1910 and 1926.
In the first National Ombudsman hearing on this case convened in New
York City on February 23,2002, Dr. Thomas Cahill provided expert testimony concerning the
results of his air pollution testing in lower Manhattan a month after the attack one mile
north of "ground zero" and 15 stories above ground level Dr. Cahill heads the
"DELTA Group" which is a group of scientists convened by the United States
Department of Energy to monitor major air pollution incidents around the world. Dr. Cahill
and the "DELTA Group" confirmed that the pollution from very fine particulates
in the air was greater than the air pollution they had measured from the Kuwaiti oil field
fires, set during the Gulf War.
Based upon the foregoing expert testimony I made a threshold
recommendation on February 27,2002 that EPA undertake remedial actions to protect the
public health and environment of children and young adults who are attending schools in
and around "ground zero." Following this recommendation, it was revealed that
children and young adults were going to school with an inadequate filtration system in the
school to protect the students' health and that lead re-contamination was occurring.
Further, it was disclosed that children and young adults were let outside to play during
school hours in direct violation of the Board of Education's instructions to keep the
children and young adults inside to protect their health.
Pending your deliberation of my threshold recommendation to protect the
children in the schools, I note with grave concern that children remain exposed to
contaminants. In order to aid your consideration of more specific recommendations relating
to the schools, inter alia, I offer the ensuing Findings of Fact, which are reasonable
inferences drawn from the expert and direct evidence provided at the National Ombudsman
Hearings in New York City. I entrust these recommendations to you in the expectation that
the abandonment of the citizens of New York City who have been and continue to be affected
by the World Trade Center attack will be ended. EPA can and should provide the help which
these people need and deserve.
FINDINGS OF FACT
Use of the EPA National
Contingency Plan (NCP) and On-Scene Coordinators (OSCs)
One month before the terrorist attacks of
September 11th, 2001, in August of 2001, the United States Office of Management and Budget
issued an Annual Report to Congress on Combating Terrorism. This Report documented that
EPA has a critical role in responding to hazardous materials emergencies and openly
communicating investigative findings with those affected by a terrorist act. The report
provides that EPA has "expertise in performing off-site monitoring, extent of
contamination surveys, working with health officials to establish safe cleanup levels,
conducting protective cleanup actions, and communicating technical information/data to
impacted citizens is important for a successful Federal response to an act of terrorism
that involves a release of chemical, biological, or radioactive material."
Furthermore, the report notes that, "EPA's first responders (On-Scene Coordinators or
OSCs) from all 10 regions have been actively involved with local, State, and Federal
authorities in responding to threats of terrorism. See, OMB Report at Pg 48. EPA's
response to such threats is an extension of its existing hazardous materials response
capability developed over more than 30 years as a leader of the National Response System (emphasis
supplied)."
EPA has neither fully used its legal
authorities nor its existing hazardous materials response capabilities as a leader of the
National Response System to aid the victims of the terrorist attack (apartment residents,
school children, rescue workers, building owners, etc.). During the last thirty years as a
leader of the National Response System, EPA has used the National Contingency Plan as a
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.
Two EPA On-Scene Coordinators were involved in the decision of Oct 9th,
2001 to reopen Stuyvesant High School in lower Manhattan based on indoor air samples taken
by EPA at the school. Further these two EPA On Scene-Coordinators were present at an Oct
9th, 2001 meeting and an Oct 5th, 2001 meeting with all stakeholders where the decision to
re-open the school was made.
Presumably, the On-Scene Coordinators involvement in taking indoor air
samples and participation in the decision-making around school re-open demonstrates that
at least up until October 9th, EPA was executing authorities under the National
Contingency Plan in response to the terrorist attack and consistent with the procedures
expressed in the 0MB narrative.
In the National Ombudsman hearing of March 11th, the Director of the
New York City Board of Education Environment and Safety Division testified that one of the
EPA On-Scene Coordinators (OSCs), Charlie Fitzsimmons, was present at both aforementioned
meetings and stated that EPA had sampled for hazardous material and all EPA test results
were at "acceptable levels" but they have not shared the results with us. This
testimony is confirmed by sign-in sheets at the October 9th, 2001 meeting with the school
board and other stakeholders.
This does not comport with the statement provided by OSC Fitzsimmons'
Supervisor, Doug Lair, to me in writing on March 11th, 2002 remarking that OSC Fitzsimmons
had spent only "two weeks in New York City in September" and that "he has
minimal knowledge of the World Trade Center response activities conducted beyond the two
weeks he spent there." Given Mr. Fitzsimmons' documented participation in
decision-making around the reopening of the Stuyvesant School in October 2001, Mr. Lair's
written statement to me lacks credibility.
Indoor Air Testing and
Remediation-Presidential Directive PDD 62
EPA has and is presently communicating that they
are not responsible for indoor air testing and remediation as a result of
the contamination created by the World Trade Center terrorist attack. Notwithstanding
these statements, Administrator Christine Todd Whitman's testimony to the Senate
Appropriations Subcommittee on VA, HUD and Independent Agencies on November 28, 2001
directly conflicts with EPA's policy to date in response to the World Trade Center
terrorist attack. Specifically, Administrator Whitman told Congress, "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 (emphasis
supplied). This responsibility draws on our decades of experience in cleaning up sites
contaminated by toxins through prior practices or accidents."
Moreover, four (4) days before the terrorist attack on the World Trade
Center, on September 7th, 2001 in a town meeting in Libby, Montana (another city
contaminated from the uncontrolled release of asbestos) Administrator Whitman stated,
"it has never been our plan to look to you to pay for any part of this cleanup,
including the cleanup of residential properties." Administrator Whitman further went
on to say that EPA is taking a "legal step to protect you from future liability,
whether or not we end up listing Libby on the NPL. We will be providing home owners with
legal guarantees-called 'A No Action Assurance'- that will protect them from EPA's ever
seeking to have them assume the cost of cleanup. Similarly, local businesses in Libby that
did not know about the hazards... will also receive this guarantee." After the
terrorist attack on New York City, EPA in carrying out its responsibilities, however, has
declined to remove the burden and responsibility for cleaning up buildings contaminated
from the affected individual building owners, residents, office workers, and school
system. The magnitude of this burden is immense as are the corresponding risks of imminent
and substantial hazards faced by the public.
EPA has not fully discharged its duties under PDD (Presidential
Directive) 62, the National Contingency Plan (NCP), and the 2001 OMB Annual Report to
Congress on Combating Terrorism. EPA has abandoned its responsibilities for cleaning up
buildings (both inside and out) that are contaminated, or that are being re-contaminated,
as a result of the uncontrolled chemical releases from the World Trade Center terrorist
attack.
Stuyvesant High School Remediation
In the first and second National Ombudsman
hearings on the World Trade Center hazardous waste case it was noted that Stuyvesant High
School was being re-contaminated by hazardous materials. On February 22nd, 2002, after a
detailed assessment of environmental data, Dr. David 0. Carpenter from the School of
Public Health at the University of Albany concluded that the Stuyvesant "building has
not yet been proven safe." On February 28th, 2002 New York City School Board member
Irving Hamer Jr. recommended cleaning of the air ducts in Stuyvesant High School during
spring break beginning March 28th, 2002. The Ombudsman hearing documented the fact that
upgrading of the ventilation systems and installing high efficiency filtration at the
Stuyvesant High School to accommodate 90-95% minimum efficiency filters would reduce the
risk to the children from the hazardous materials created by the World Trade Center
terrorist attack.
RECOMMENDATIONS
Recommendation #1
EPA Region II should, pursuant to authorities under
Presidential Directive PDD 62, and the National Contingency Plan (NCF) immediately clean
the ducts and upgrade the ventilation systems to install high efficiency filtration at the
Stuyvesant High School during spring break.
Recommendation #2
EPA Region II should execute authorities under Presidential
Directive PDB 62, the National Contingency Plan {NCP), and consistent with Administrator
Whitman's statement in Libby, Montana four days before the World Trade Center terrorist
attack, issue legal guarantees to all building owners, building managers, local
businesses, the New York City Board of Education, and condominium and coop owners to
protect them from assuming the costs of cleanup from the terrorist attack on the World
Trade Center.
Recommendation #3
Consistent with
Presidential Directive PDD 62, the National Contingency Plan (NCP), and Administrator
Whitman's statement in Libby, Montana four days before the World Trade Center terrorist
attack, EPA Region II should cleanup all buildings impacted by the World Trade Center
terrorist attack together with corresponding remediation at "ground zero."
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