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The Alarming Report About The EPA's Response To 9/11

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 come out 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 disaster recovery.

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 city's."

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 undermine.

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 cleanup process.

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 safe 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 staffers.

The EPA, in other words, may lacks the staff to be a major player in any post-disaster response scenario.

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 of New York.

"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 the 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 Protection."

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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