Testimony of U.S. Representative Jerrold Nadler (D-NY): Air Quality Issues in Lower Manhattan in the Aftermath of September 11
Given at Public Hearing before Assembly Speaker Sheldon Silver, Assembly Standing Committee on Environmental Conservation, Assembly Standing Committee on Health, and Assembly Standing Committee on Labor, April 12, 2002

Thank you, Speaker Silver. I would like to thank you and the chairs of the three committees for co-hosting this important public hearing today. As the Congressman representing Ground Zero and the surrounding area, I am deeply concerned about the environmental and health effects posed by the collapse of the World Trade Center for my constituents and for those who attend school and work in the area. It has now been seven months since the terrorist attacks, and the people in Lower Manhattan still are in the dark about the safety of living and working here.

I would like first to review five of the critical points that have been established over the past seven months:
· Environmental Protection Agency (EPA) Administrator Christine Todd Whitman misled the public when she announced to New Yorkers, shortly after the September 11th terrorist attacks, that their ". . .air is safe to breathe" and that they ". . . need not be concerned about environmental issues as they return to their homes and workplaces" as the EPA did not have the proper information to make such assurances.

· The EPA also misled the public about air quality by mischaracterizing its own data and ignoring or withholding other critical data that contradicted Ms. Whitman's assurances.

· The EPA allowed the City of New York to handle indoor air quality. The City, in turn, delegated indoor air matters (testing and remediation) to individual building owners for indoor public spaces, and to tenants for indoor private spaces. The City provided little enforcement with respect to indoor public spaces and no enforcement with respect to indoor private spaces, and gave improper advice regarding hazardous materials testing and remediation.

· As a result of the EPA's misleading statements about air quality and because it allowed the City of New York to handle matters related to indoor environments, there has been inadequate hazardous materials testing and remediation inside residential and commercial buildings downtown – putting the public health at risk.

· The EPA's inaction in New York City downtown residences and commercial buildings stands in stark contrast to its response in its own building at 290 Broadway, as well as at other non-Superfund hazardous materials contamination sites around the country.

This sixth, and most egregious point is the following:
· By allowing indoor air quality in residential and commercial buildings to be handled by the City of New York, and by not properly exercising its oversight authority pursuant to the National Contingency Plan (NCP), the EPA violated federal law.

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. The National Contingency Plan, which is administered by the EPA and authorized by the Comprehensive Environmental Response, Compensation, and Liability Act, is the federal plan for responding to such a release. The NCP lays out specific procedures and guidelines, including the designation of an On-Scene Coordinator who is responsible for directing response efforts and coordinating all other efforts at the scene of a discharge or release. The federal regulations make clear that the EPA has the authority to respond to the release of hazardous substances pursuant to the NCP, and that this authority is carried out by EPA On-Scene Coordinators.

The counter terrorism policies of the United States dictate that the NCP applies specifically to acts of terrorism. EPA's responsibilities in this regard are supported by Presidential Decision Directive 62, which reiterates that the EPA is the lead agency for responding to the release of hazardous materials in a terrorist attack, and that the EPA has the specific responsibility to remediate inside buildings. On November 28, 2001, Administrator Christine Todd Whitman outlined the EPA's role in counter terrorism activities before the Senate Appropriations Subcommittee on VA, HUD, and Independent Agencies. Administrator Whitman testified "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." Administrator Whitman went on to say 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."

This testimony was given to Congress over two months after the September 11th terrorist attacks, at the same time that the EPA told elected officials and citizens that New York City had responsibility for indoor environments in Lower Manhattan. In fact, Administrator Whitman wrote in a letter to me two months ago, "I believe that Congress and the Administration need to revisit the issue of authority and responsibility for indoor environmental conditions in the wake of a terrorist attack. While the current practice is to vest responsibility in local and state government for indoor environmental conditions, perhaps this approach is not appropriate in the wake of an event like September 11th."

This statement does not seem to comport with EPA's responsibilities under the National Contingency Plan, an OMB Annual Report to Congress, released just weeks before the terrorist attacks, or PDD 62, as outlined by Administrator Whitman in testimony before Congress.

Furthermore, in Libby, Montana (a town only recently designated a Superfund site), Administrator Whitman told residents at a September 7, 2001 town hall meeting that, "It has never [emphasis added] been our plan to look to you to pay for any part of this clean-up, including the clean-up of residential properties." Dr. Cate Jenkins, an EPA scientist with 22 years experience, has asserted that the levels of asbestos in lower Manhattan are comparable or in excess of those found in Libby, Montana. Why, then, are the residents of lower Manhattan, who were victims of the worst terrorist attack in American history, not receiving similar assurances from the EPA? How can the EPA continue to deny that it has jurisdiction for indoor environments when only four days before 9/11, Administrator Whitman asserted that very jurisdiction?

The citizens of Lower Manhattan -- residents, workers and building owners -- have been victims of a terrorist attack on this nation, and should not bear the burden of making their homes, offices, and businesses safe again. The EPA must act in accordance with the NCP, and take action immediately to systematically and properly test and remediate all downtown buildings affected by the World Trade Center tragedy, using properly trained personnel and the best-available equipment and methods tied to genuine, established health-based standards. Seven months after the attacks, it is now clear that the EPA is the only governmental entity with the authority, resources, expertise and mandate to do this job. This is the only course of action if the EPA is to restore the public trust and protect the public health.

I am hopeful that today's hearing will elicit the truth of this entire matter. We need to ask of the EPA today, "Will the agency begin a proper remediation under the National Contingency Plan and Presidential Decision Directive 62? When will this begin? If not, under what authority is the EPA relieved of its responsibilities?" The State, too, must be clear and demand that the EPA immediately begin operating in New York City under the NCP and PDD 62. Anything less is unacceptable.

I am submitting for the record a newly updated version of my White Paper on Lower Manhattan Air Quality. I look forward to continuing to work with interested parties to ensure that all our air quality concerns are properly addressed.

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