When the Environmental Protection Agency's Office of the Inspector
General released its long-awaited report on the agency's response to
the September 11, 2001 terrorist attacks, reporters seized on a startling allegation
-- that White House officials and former EPA director Christine Todd Whitman
conspired to downplay the environmental impact of the World Trade Center collapse
in the days
immediately following the attacks. They offered reassurance without the proper
evidence to do so.
But those who take a tour through the remaining 164 pages of the report might
even more outraged and alarmed. If anything, the recent uproar over
what the White House suppressed and when it suppressed it draws attention
away from the report's deeper revelation, something Gotham
Gazette writer Eric Goldstein noted in
this space nearly a year ago. Though in many
parts heroic, the city, state and federal government's collective
environmental response to the September 11 attacks exhibited a glaring
" leadership gap."
This gap is particularly troubling for New Yorkers. Though September 11
already ranks as the worst single-day environmental catastrophe to
befall the city, it doesn't take much imagination to conjure up something
that could be even worse. From the October, 2001, anthrax scare to ongoing concerns
over a Chernobyl-level disaster at the upriver Indian Point
nuclear power plant, New Yorkers are waking to the implications
of treating the environment and public health as an afterthought during
Step One: Closing the Leadership Gap
Two chapters of the report, about 20 pages total, defend the legality
of the Environmental Protection Agency's behavior at and around Ground Zero,
while at the same
time chiding it for not being "proactive" enough in asserting its
authority in various realms. One realm in particular, cleanup of indoor
spaces contaminated by the attack, comes under special scrutiny. The
report notes that in the first months after the attack agency press
releases "deferred to the New York City Department of Health guidance
even though EPA's position on indoor cleanup was different [from] the
When it comes to explaining this institutional timidity, however, the
report goes timid itself: "EPA does not have clear statutory authority
to establish and enforce health-based regulatory standard for indoor
air," the report notes. "Neither CERCLA [Comprehensive Environmental
Response Compensation and Liability Act] nor NCP [National Contingency
Plan] obligate EPA to undertake response actions."
Buried on page 27, this explanation may turn out to be one true smoking
gun in the entire document. Edward P. Richards, professor and director
of the Louisiana State University's Law, Science and Public Health
program, offers a plain English translation.
"The feds aren't really set up to manage a crisis," says Richards.
"They really depend on the locals."
Two years after the attacks, New Yorkers can look back on the events of
September 11, 2001, in a less emotional light. In addition to
soul-stirring acts of heroism, it is now easy to see the naked battle
for political supremacy at the World Trade Center site in the minutes,
hours and days following the first airliner impact.
It shouldn’t be too surprising that this battle favored the locals — former
Mayor Rudy Giuliani,
city ironworkers, the New York City Department of Design and
Construction — over the visitors — the Federal Emergency Management
Agency, the Occupational Safety & Health Administration, and the EPA. The
raw emotions stirred up by the
attacks prompted a can-do spirit which federal agencies were loathe to
Still, by deferring to local authority, mistakes were made. By
January, complaints over the city's delegation of actual cleanup
responsibility to individual owners and tenants in buildings
surrounding Ground Zero prompted Jerrold Nadler, the U.S.
Representative whose district includes Ground Zero, to cite a "gross
disparity" in the EPA's handling of the Lower Manhattan cleanup
compared with other contaminated sites around the country.
"New York was at the center of one of the most calamitous events in
American history, and the EPA has essentially walked away," Nadler said
in a February 11, 2002, testimony before the Senate Committee on
Environment and Public Works.
Nadler's outcry would lead to the creation of a multi-agency cleanup
effort led by EPA. Still, complaints lingered, and it wasn't until
August, 2002 that the agency launched a full building-by-building
Aside from federal reliance on local responders and local contractors,
the report also downplays the agency's own second-tier status within
the Bush Administration. It notes that in July of last year, the Bush
Administration, via the Department of Homeland Security, designated
the EPA as the primary agency "responsible for decontamination of
affected buildings and neighborhoods" and "determining when it is
to return to those areas" after a terrorist attack, but neglects to
mention the already-overburdened Office of Criminal Enforcement,
Forensics and Testing, the internal division that handles such matters.
In July of this year, a report in CongressDaily revealed that the
Office of Criminal Enforcement, Forensics and Testing currently faces a
backlog of more than 1,500 cases as the Bush Administration has denied
repeated requests to boost the division's manpower from 200 to 400
agents. Six Democratic senators and Vermont Independent Senator James Jeffords
subsequently issued a joint request that the EPA's Inspector General
investigate whether even the former count was inflated by Bush
The EPA, in other words, may lacks the staff to be a major player in any post-disaster
Step Two: Closing the Liability Gap
Admittedly, if EPA officials had declared the World Trade Center and
much of Lower Manhattan a Superfund site on September 12, 2001, they
would have faced far more heat then than they do now. Such
assertiveness, however, might prove necessary in future situations
where no single mayor or governor holds uniform jurisdiction.
It might also preclude what is already shaping up to be a cruel
irony of the September 11 attacks: New York City residents, in addition
to suffering the worst psychological and health effects of the
September 11 attacks, may wind up paying the legal bill as well.
Professor Richards notes that the EPA, because of the judicial branch's
traditional deference to the executive branch on matters of policy,
provides a less inviting target for post-disaster legal claims than the City
"Getting damages out of the federal government is a pretty unusual
circumstance," Roberts says. "It happens, but you have to show the
government used negligence and it wasn't just a policy decision. After
all, the word policy implies that you have some sort of tradeoff
public health vs. public security — that the government is taking into
account when it makes a decision."
Because the EPA took a back seat to the New York City Departments of
Health and Environmental Protection in the first months after the
attacks, however, this shield has no effect. U.S. District
Judge Alvin Hellerstein recently served notice that local government agencies
will have less luck pleading "governmental immunity" when he gave
green light to a victims' lawsuit against the Port Authority of New
York and New Jersey.
Is New York City next in line? Judging by the feisty response of
Kenneth Becker, chief of the World Trade Center Unit in the New York
City Law Department, the city is already preparing a major battle.
Taking issue with the agency's attempts to shift the blame on issues
such as respirator usage at Ground Zero and testing for concrete dust
and other non-asbestos particles, Becker's rebuttals merit their own
special 10-age appendix within the report.
"The City believes EPA Region 2's comment that it did not want to take
a more assertive stance because it would create a confrontation is not
valid," writes Becker. "In fact, when at a point in time during the
Response Effort, EPA suggested that its functions be transitioned to a
contractor, the City urged the EPA not to do this and to continue to
maintain an on-site presence and be part of the team."
Jay Cohen, deputy chief of the Law Department's World Trade Center
Unit, says the report reveals no evidence of city negligence. "To the
contrary," Cohen writes, "the report demonstrates the proactive
approach of New York City agencies, in particular the Department of Environmental
Even so, the conflicting views encased in the report remains a sore point. Was
the EPA too deferential to local authority or was it too ready to leave its local
counterparts in the toxic dust? The report suggests that, unless bureaucratic
tensions are resolved, future environmental disasters may look far too much like
September 11, 2001.
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