jenkins 111501 wtc epa violates standard

8/8/2019 Jenkins 111501 WTC EPA Violates Standard

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MEMORANDUM

DATE: November 15, 2001

SUBJECT: EPA National Standards vs.New York City Guidelines,Cleanup of Dusts from World Trade Center

FROM: Cate Jenkins, Ph.D., Environmental ScientistWaste Identification BranchHazardous Waste Identification DivisionOffice of Solid WasteUS Environmental Protection AgencyWashington, DC 20460

TO: Monona Rossol, M.S., M.F.A., DirectorArts, Crafts, and Theater Safety (ACTS)181 Thompson St., Suite 23New York City, NY 10012____________________________________________________________________________

Please distribute this memo to interested persons. As wehave discussed, the US Environmental Protection Agency(EPA) has effectively waived the EPA national regulations

under the Clean Air Act for asbestos cleanup and removal.Dusts covering a large area of lower Manhattan, not justGround Zero, contain 1% or more asbestos as a result of theWorld Trade Center disaster, and thus are subject to theEPA national asbestos regulations.

The mechanism EPA used to waive its own asbestosregulations was to refer parties to the extremely lenient(and arguably illegal) asbestos guidelines of the New York City Department of Health (NYC DOH). This was in lieuof referring affected persons to the strict national

regulations for removal and disposal of asbestoscontaminated dusts. As a result, EPA is preventing peoplefrom even knowing that the strict EPA national regulationsexist.

Although states (and thereby some cities) can be authorized(delegated) by the EPA to enforce asbestos regulations andissue guidelines, any state regulations and guidelines must

INCLUDES:1. EPA's Mugdan complaint to Jenkins' superiors2. NY Daily News coverage on 11/20/01 with EPA's comment on J11/15/01 memo to Rossol3. Jenkins' 11/20/01 memo to EPA's Mugdan rebutting his statemenNY Daily News article4. Jenkins' 1/15/02 email to Mugdan on using superior TEM tests f5. Mugdan's 1/25/02 speech where he rebut ts Jenkins' claim that EPcleanup procedures for asbestos apply to WTC, and Jenkins' claimNYC do-it-yourself wet mop and rag procedures, withou t even a ddoes not protects citizens6. NYC 9/16/01 do-it-yourself procedures for residences and of fice



be at least as stringent as the EPA national asbestosregulations. There is a process within the EPA forapproving state/city asbestos programs, and there is also aprocess within the EPA for revoking the authority of thestate/city to administer asbestos programs. Instead of

taking action to correct the problems with the NYC DOHguidance, EPA wholeheartedly endorsed it by referring to itat the EPA web site.

This memorandum provides the web site pages so that anyinterested person canto make the comparison between thelenient NYC DOH guidelines and the EPA nationalasbestos regulations.____________________________________________________________________________NEED FOR SAFE CLEANUP OF

TRADE CENTER FALLOUT

The EPA tested dusts from the Trade Center falloutcovering streets and other surfaces. EPA found asbestoslevels at 1 percent or greater (the action level) at over 30locations, some five to seven blocks away from GroundZero. EPA did not test for other toxic substances in thesesurface dusts, such as fiberglass, PCB’s, dioxins, lead, etc.

Although the EPA did not find air concentrations of

asbestos exceeding health standards outside of GroundZero, this was undoubtedly because the tests wereperformed in the open streets, where uncontaminated freshair mixes freely and dilutes any contaminated air. Inside of buildings contaminated with Trade Center dusts could havehigher airborne concentrations, particularly when the dustsare disturbed during cleanup operations.

Thus, there is no data to support any claim that nohazardous exposures will result from the uncontrolledcleanup of these dusts.



____________________________________________________________________________STRICT EPA NATIONAL REGULATIONS FOR

ASBESTOS CLEANUP AND REMOVAL

The EPA national regulations for the cleanup and removalof asbestos-contaminated debris from the demolition of buildings (the Trade Center fits into this category) may befound in Parts 61.145 and 61.150 of Title 40 of the Code of Federal Regulations (40 CFR 61.145 and 40 CFR 61.150).These regulations may be found in bound volumes in mostlarge city libraries, and on the internet web site of theGovernment Printing Office (GPO) at:

http://www.access.gpo.gov/nara/cfr/

Scroll down the page to “Search or browse your choice of CFR titles and/or volumes”. After you bring up that page,scroll down to Title 40, and then bring up the specific pagesfor Parts 61.145 and 61.150:

The specific web address is the following, but this may getgarbled in the transmission of this memo by email.Download only the text versions of the regulations, becausethe PDF versions have missing pages for some reason.

http://www.access.gpo.gov/nara/cfr/waisidx_01/40cfr61_01.html

These national asbestos regulations are part of the NationalEmission Standards for Hazardous Air Pollutants(NESHAP’s), which are under the Clean Air Act. Theseregulations are designed to prevent untrained individualsfrom any practices which might either expose themselvesor others in their community to unsafe levels of asbestos,including the exposures of waste handlers transportingasbestos wastes to landfills, and the persons in or aroundlandfills or other disposal facilities.

These EPA regulations do not allow anyone to oversee andperform the asbestos removal, such as a resident in anapartment or a building owner. A management levelperson trained in both the EPA regulations as well as thoseof the Occupational Safety and Health Administration



(OSHA) is required. The expertise and training of theperson must include at a minimum 1) how, who, and whento notify appropriate government officials prior to, during,and after the asbestos cleanup process, 2) identification of hazardous materials by laboratory analyses and other

means, 3) control procedures for removals such as priorwetting of dusts, local exhaust ventilation that captures allhazardous small particulates with HEPA filters or other

devices, 4) waste disposal practices that prevent anyleakage of asbestos during transport to a landfill or otherdisposal facility or leakage after disposal, as well asdisposal at appropriate hazardous waste facilities, 5)reporting and recordkeeping to be submitted to appropriateofficiates at specified times, and 6) knowledge of asbestoshazards and worker protection through approved OSHArespirators, other protective clothing, medical monitoring,and other work practices. There are many otherrequirements contained in the EPA regulations as well,such as specific work practices, state and federalnotifications and approvals, and waste handling.

The EPA regulations apply to any dwelling of 4 or moreunits, as well as all businesses. This means that the OSHAregulations are effectively applied to all those involved inthe cleanup, even though residences and certain small

business might normally be exempt from OSHArequirements. This is because the trained professionalsoverseeing the cleanup, described above, are mandated tofollow approved and recommended OSHA practices forworker protection.

The OSHA asbestos regulations are in 29 CFR 1910.1001and may found at either of the following two sites. Thewww.osha-slc.gov site loads faster.

http://www.osha-slc.gov/OshStd_data/1910_1001.html

http://www.access.gpo.gov/nara/cfr/

Additional information on OSHA recommended work practices, testing for asbestos, technical details on HEPA(high efficiency particulate air) filtering equipment, etc.may be found at the general OSHA site for asbestos at:

http://www.osha-slc.gov/SLTC/asbestos/index.html



____________________________________________________________________________LENIENT NYC DOH GUIDELINES

FOR TRADE CENTER DUST CLEANUP

AND REMOVAL

As stated earlier, the New York City Department of Health(NYC DOH) issued special guidelines directed at “peoplere-occupying commercial buildings and residents re-entering their homes” after the Trade Center disaster.These may be found at the following web site:

http://www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html

The NYC DOH first claims that there is no health risk,

stating:

“Based on the asbestos test results received thus far, thereare no significant health risks to occupants in the affectedarea or to the general public.”

The guidelines advise wearing a dust mask, but do notspecify what type of mask. The guidelines then claim “itshould not be necessary to wear this mask if you follow thecleaning procedures detailed below.”

The NYC DOH then recommends the following cleanupprocedures. They recommend that it is only “best,” notrequired, to use a wet rag or wet mop, or if the apartment isvery dusty, a person should wash or use a HEPA (highefficiency particulate air filter) vacuum, and to take curtainsdown “slowly” to keep dust from circulating in the air. Airpurifiers are recommended, but no specifications are givenas to the volume of air that the purifier can process. HEPAair purifiers are also recommended, again with noguidelines as to the volume of air that can be processed bythe HEPA air purifier.

The NYC DOH then recommends keeping outdoor dustfrom entering the home by keeping windows closed, andsetting the air conditioner to re-circulate air and cleaningthe air conditioner filter frequently. Removing shoesbefore entering the home for several days and avoidingsweeping or other outdoor maintenance.



In contrast, the EPA national regulations for asbestoscleanup and removal under 40 CFR Parts 61.145 and61.150 are extensive. They do not even allow individualresidents of apartments, coops, or condominiums, or rentersof commercial spaces to perform their own cleanups,

potentially exposing themselves or others to hazardousexposures. See earlier discussions of the EPA regulations.

The EPA national regulations do not allow optionalrespiratory protection, such as the NYC DOH suggestion of wearing unspecified types of “dust masks,” where the mask does not meet OSHA requirements. The suggestion of using an air conditioner to recirculate air would not beallowed because an air conditioner filter would not trap thesmall, harmful asbestos particles. Taking dusty curtains“down slowly” would not be sufficient under the nationalregulations to obviate the need for respiratory protection,which was claimed by the NYC DOH. There are too manyother deficiencies of the NYC DOH guidelines to discusshere.

And, as discussed earlier, the EPA national regulations donot allow individual residents or even building owners toplan or oversee their own asbestos cleanup – a trainedcertified professional with qualifications specified in thenational regulations themselves must be responsible.

The NYC DOH guidelines are contained on only two pageswith fairly large typeface. The combined EPA and OSHAregulations, recommended practices, and supportingtechnical documents for asbestos control and removal arecontained in hundreds of pages.____________________________________________________________________________EPA DIRECTS PARTIES TO USE THE

LENIENT NYC DOH GUIDELINES

The EPA set up web pages to give information on itsinvolvement with the World Trade Center contaminationproblem and cleanup. These pages direct people to theNYC DOH lenient guidelines instead of the strict EPAnational regulations.



Go to the EPA web site page titled “EPA Response toSeptember 11" at:

http://www.epa.gov/epahome/wtc/

Look at the box to the right on the web page which hasactive links. Look under “Data Tables” and choose the link titled “Asbestos in Bulk Dust.” Bring up that page.

You will see a map of Manhattan with green dots for thedifferent locations where EPA tested for asbestos. Click onany one of the green dots. On the page that comes up, youwill then see the following statement by the EPA:

“If dust or debris from the World Trade Center site hasentered homes, schools or businesses, it should be cleanedthoroughly and properly following the recommendations of the New York City Department of Health.”

An active link is then provided by EPA to the NYC DOHweb page which provides their lenient guidelines. This link goes to the following web site:

http://www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html

In my personal opinion, the EPA had the option, and also

the obligation, to direct all parties to the appropriate EPAnational regulations for asbestos cleanup, not to the lenientNYC DOH guidelines. In my personal opinion,immediately upon reviewing the lenient NYC DOHguidelines for cleanup of Trade Center dusts, the EPAshould have taken steps to require their change to be asstrict as the EPA national regulations. If the NYC DOHdid not upgrade its guidelines, then, in my personalopinion, the EPA should have publically announced itsintent to revoke New York’s authority to administer anyasbestos control program, including issuing lenient

guidelines such as it did.



Cat e Jenki ns

1 1 / 2 7 / 0 1 0 9 : 5 9 AM

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S e v e r a l E P A Re g i o n 2 e mp l o y e e s r e c e i v e d t h e f o l l o wi n g me s s a g e o n F r i d a y ,No v e mb e r 1 6 . T h e me s s a g e i s f r o m a Dr . Ca t e J e n k i n s , a n OS WE R e mp l o y e e wi t hwh o m we a r e n o t f a mi l i a r . T h e me s s a g e f o r wa r d s t o u s a s e p a r a t e me s s a g e t h aDr . J e n k i n s a p p a r e n t l y s e n t o n Th u r s d a y , No v e mb e r 1 5 t o a n u mb e r o f o u t s i d ei n d i v i d u a l s a n d / o r o r g a n i z a t i o n s i n Ne w Yo r k . T h a t me s s a g e i s a me mo r a n d u mf r o m Ms . J e n k i n s t o o n e s u c h o r g a n i z a t i o n i n wh i c h s h e p r o v i d e s o p i n i o n s a n dma k e s a s s e r t i o n s a b o u t a n u mb e r o f ma t t e r s p e r t a i n i n g t o p o t e n t i a l l ya s b e s t o s - c o n t a i n i n g d u s t i n d o wn t o wn Ma n h a t t a n a f t e r t h e S e p t e mb e r 1 1 a t t a c kAmo n g o t h e r t h i n g s , Dr . J e n k i n s p r o v i d e s o p i n i o n s a b o u t t h e a p p l i c a b i l i t y o fc e r t a i n o f E P A Cl e a n Ai r Ac t r e g u l a t i o n s t o d u s t c l e a n u p a c t i v i t i e s , a n d ma k e

a s s e r t i o n s t o t h e e f f e c t t h a t E P A wa i v e d i t s CAA r e g u l a t i o n s . We a r ec o n c e r n e d a b o u t a n u mb e r o f i n a c c u r a c i e s i n h e r me mo r a n d u m, a s we l l a s t h ef a c t t h a t i t s e e ms t o h a v e b e e n wr i t t e n a n d d i s t r i b u t e d wi t h o u t a n y i n t e r n a lr e v i e w o r a p p r o v a l b y t h e a p p r o p r i a t e Ag e n c y o f f i c i a l s . Bi l l Mu s z y n s k i a s k et h a t I s h a r e t h i s wi t h y o u ; we l o o k f o r wa r d t o t h e o p p o r t u n i t y t o d i s c u s s t h if u r t h e r wi t h y o u n e x t we e k .

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c c :S u b j e c t : E P A Na t i o n a l S t a n d a r d s v s . Ne w Yo r k Ci t y Gu i d e l i n e s

Cl e a n u p o f Du s t s f r o m Wo r l d Tr a d e Ce n t e r

- - - - - F o r wa r d e d b y Ca t e J e n k i n s / DC/ US EP A/ US o n 1 1 / 1 6 / 0 1 1 1 : 1 2 AM - - - - -

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S u b j e c t : E P A Na t i o n a l S t a n d a r d s v s . Ne w Yo r k Ci t y Gu i d e l i n e sCl e a n u p o f Du s t s f r o m Wo r l d Tr a d e Ce n t e r



DAILY NEWS— online edition

November 20, 2000Juan Gonzalez [http://www.nydailynews.com]

Feds, City Ignore AsbestosCleanup Rules, Says EPA VetA veteran scientist at the federalEnvironmental ProtectionAgency is charging that her agencyand the city Health Department areignoring federal asbestos-abatement

law in buildings around the WorldTrade Center disaster site.

In a scathing memo circulated last week within theagency, Cate Jenkins, a 22-year EPA employee,charged that top brass have "effectively waived"the EPA's "strict national regulations for removaland disposal of asbestos contaminated dust" byrecommending that residents and commercialbuilding managers in lower Manhattan follow the"extremely lenient (and arguably illegal) asbestosguidelines of the New York City Department of Health."

In her memo, a copy of which was obtained by theDaily News, Jenkins noted that the EPA's testinghad identified at least 30 locations, some five toseven blocks from Ground Zero, where asbestos

http://www.nydailynews.com/archives/news/2001/11/20/2001-11-20_feds__city_ignore_asbestos_c.html



levels in dust samples were above the 1% "actionlevel" cited in the federal Clean Air Act.

That law requires elaborate and strict proceduresfor asbestos removal to be followed and the use of

trained asbestos cleanup companies.

"We haven't waived any regulations," said WalterMugdan, the agency's regional counsel, whoinsisted Jenkins was misreading the law.

"She [Jenkins] assumes that they [the regulations]apply to the cleaning up of dust in residential oroffice buildings in lower Manhattan.

"When they were written, they were neverintended to apply to something like a terrorist act.These regulations apply to owners and operatorsof a facility who are carrying out a demolition orrenovation. They were never contemplated toapply to someone cleaning an apartment," Mugdansaid.

"This is not an academic or scientific argument,"Jenkins said yesterday. "Our regulations are veryspecific. They don't allow you to do this. We've

had a breakdown where the federal EPA and thecity are scrambling to get everything back tonormal, and they're ignoring the law."

Jenkins, who has a Ph.D. in chemistry and worksfor the agency's Washington-based HazardousWaste Identification Division in the Office of Solid Waste, said she believes her colleagues "areafraid to say anything."

'Ludicrous' Advice

Some of the advice the Health Department hasposted for people on how to remove dust in theirapartments, Jenkins said, is "ludicrous." Oneexample, from the department's Web site: "If curtains need to be taken down, take them downslowly to keep dust from circulating."



"EPA regulations do not allow anyone to overseeand perform ... asbestos removal, such as aresident in an apartment building or a buildingowner," Jenkins said.

EPA administrator Christie Whitman and other topagency officials have repeatedly stressed that afew dozen of more than 1,300 air monitoring teststhe agency has done since Sept. 11 have shownasbestos levels above federal safety levels.

"Of course, individual samples represent only asnapshot at a moment in time, not theenvironmental conditions that would determinewhether federal standards have been exceeded,"Whitman wrote in an Oct. 31 Op-Ed piece in TheNews.

In addition, federal and city officials have stressedthat the main danger of cancer or asbestosis comesfrom long-term exposure to the mineral fibers.

The Health Department did not immediatelyrespond to calls seeking comment. But on its Website, the department says "some asbestos wasfound in a few of the dust and debris samples

taken from the blast site." Still, the city notes:"Most of the air samples taken have been belowlevels of concern. ... The risk of developing anasbestos-related illness following an exposure of short durations, even to high levels, is extremelylow."

The Danger Indoors

But Jenkins noted that outdoor readings could belower than asbestos readings indoors, where

fibers stay unless they are professionally removed.

At least two independent studies of commercialand residential buildings near Ground Zero appearto support her statement.

One of those reports was released yesterday bythe Ground Zero Task Force, a coalition of elected



officials who represent lower Manhattan.

Those tests, conducted Sept. 18 in two residentialbuildings near Ground Zero by Cincinnati-basedEnvironmental Quality Management, found

asbestos levels far exceeding the federal safetylimit.

The other study, conducted in late September byVirginia-based HP Environmental, found thatseven of 11 air samples taken from two officebuildings within three blocks of Ground Zeroexceeded federal standards.

E-mail: [email protected]

Original Publication Date: 11/20/01

Safety Guidelines Set for WTC Site Workers (11/20/01)Asbestos Taints Workers' Refuge (11/20/01)



Cate Jenkins

11/20/2001 12:58 PM

To: mugdan.waltercc: [email protected]

Subject: TRADE CENTER ASBESTOS- rebuttal, Region 2 counsel contentions

MEMORANDUM

DATE:November 20, 2001

SUBJECT: TRADE CENTER ASBESTOS DUSTSRebuttal to claim that national asbestos standards do notapply to the cleanup of residences, business locations, orhomes in lower Manhattan

FROM:Cate Jenkins, Ph.D.Waste Identification Branch (MC 5304)

HWID, OSW

TO:Walter Mugdan, Esq.Regional CounselU.S. EPA Region 2

In my November 16, 2001 memorandum to Arts, Crafts,and Theater Safety (ACTS), I contended that the U.S. EPAhad “effectively waived” the Clean Air Act (CAA)

standards under 40 CFR 61.145 and 61.150 for the cleanupand disposal of asbestos. My memorandum referred to theNew York City Department of Health NYC DOHguidelines for the cleanup of asbestos contamination inresidences and business locations surrounding Ground Zeroin lower Manhattan. I cited the fact that EPA wasresponsible for ensuring that any state or city guidelines forthe cleanup of asbestos were as least as stringent as those of the EPA national standards under 40 CFR 61.145 and61.150, and that the NYC DOH guidelines were much lessprotective.

You are quoted in a New York Daily News article by JuanGonzalas on November 20, 2001 (www.nydailynews.com)as claiming that no regulations were being waived sincethey did not apply in this case. See below:

"We haven't waived any regulations," said Walter



Mugdan, the agency's regional counsel, whoinsisted Jenkins was misreading the law."She [Jenkins] assumes that they [the regulations]apply to the cleaning up of dust in residential oroffice buildings in lower Manhattan.

"When they were written, they were neverintended to apply to something like a terrorist act.These regulations apply to owners and operatorsof a facility who are carrying out a demolition orrenovation. They were never contemplated toapply to someone cleaning an apartment," Mugdansaid.

I respectfully submit the following arguments to counter

your narrow reading of the statute and its implementingregulations:____________________________________________________________________________

NO WAIVER WAS GRANTED BY EPAADMINISTRATOR DUE TO EMERGENCY NATUREOF TERRORIST ACTS

It is true that in emergency cases, a waiver can be grantedfor compliance with EPA regulations. There is a formal

process for these waivers. However, in this instance, theEPA administrator has granted a waiver.

For another CAA regulation, EPA is in the process of granting a waiver because of the emergency conditionscreated by the September 11 attack. The waiver wouldaddress rules requiring New York road projects to meet airquality regulations. The justification is that a key officecharged with monitoring transportation projects wasdestroyed by the attack and serious disruptions to the city’straffic patterns and public transportation system have made

existing plans meaningless. See the publication INSIDEEPA, October 12, 2001 (www.insideepa.com).

However, there is nothing in the record that EPA either hasor is contemplating any waiver or exemption of the CAArules for the cleanup of asbestos in residences, schools, andbusiness locations in lower Manhattan.



For EPA Region 2 to now claim that they have unilaterallymade such a waiver without necessary approvals withouteven informing the public of such a waiver isunconscionable.

____________________________________________________________________________

NATIONAL ASBESTOS CLEANUP STANDARDSHAVE BEEN APPLIED IN PAST TO OTHERUNLAWFUL DEMOLITIONS OF BUILDINGS

In the past, other buildings have collapsed because of unlawful activities, such as from arson or the illegal use of explosives. These unlawful acts might even be branded as

terrorism.

There is no past precedent to establish that asbestos cleanupprocedures after these unlawful activities were exemptedfrom the national standards, allowing less protectivecleanup methods of surrounding homes, schools, andbusinesses.____________________________________________________________________________

NATIONAL ASBESTOS CLEANUP STANDARDS

HAVE BEEN APPLIED PREVIOUSLY TOSURROUNDING HOMES AND BUSINESSES FROMTHE DEMOLITION OF BUILDINGS BY EXPLOSIVES

The demolition of buildings by explosives is an acceptedremediation technique. In the past, under the CAAauthority, permits have not been granted for explosivedemolitions based on the potential for hazardous asbestosexposures to occupants of surrounding businesses, schools,and homes.

Thus, the CAA national standards clearly have the authorityto address exposures to asbestos not only to the partiesactually working on the demolition of a particular building,but also to other affected parties in properties surroundingthe building under demolition.

____________________________________________________________________________



THERE IS NO EMERGENCY SITUATION AT THISTIME JUSTIFYING THE WAIVER OF THESTRINGENT CAA ASBESTOS CLEANUPSTANDARDS

There is no emergency situation at the present time to justify any waiver of the stringent CAA national standardsfor asbestos cleanup. The rescue phase of the recovery isover. The re-entry into residences, business locations, andschools is proceeding in an orderly fashion. Again, there isno current emergency.____________________________________________________________________________

NEW YORKERS DESERVE THE PROTECTIONS OFTHE STRINGENT NATIONAL ASBESTOS CLEANUP

STANDARDS

Even if some legal argument could be upheld from a jurisprudence standpoint for protecting New Yorkers to alesser extent compared to other categories of workersengaged in asbestos abatement, this argument cannot beallowed to hold sway.

Why not? It is not moral.

Furthermore, there is no lack of available funds to protect

New Yorkers. Look at the amount of resources that isbeing poured into the recovery of human remains at GroundZero. Are we now going to ignore the living victims,mocking them, honoring only the dead?

This is my personal opinion.



Cate Jenkins

01/15/2002 12:54 PM

To: Walter Mugdan/R2/USEPA/UScc:

Subject: Walter, need to know your testing strategy rationale, whether AHERA ornot

Walter, now that I am officially on the WTC case, I have been talking to staff at congressional officesthinking about testing, funding, etc. So I am going to the source, rather than playing theblind-man-and-the-elephant game.

I believe that the reason that Region 2 has not done any sophisticated testing is because they are tryingto follow AHERA protocols. Am I right on this? Whether or not they are really following the protocols is atotally separate question.

It may also be that since regions typically enforce AHERA and NESHAPS, staff is really not aware ofsome of the limitations of the AHERA TEM test and PLM, and that in all good faith, it did not occur toanyone to try to do anything differently.

I am very familiar that under a CERCLA investigation, any methods may be used. They used ISO and ASTM methods, not validated EPA methods.

Please give me a call at 703/308-0453 and fill me in on the strategy. I think it would be faster if we justtalked. I am trying to feel out the issue right now.

----- Cate



Environmental Law Issues Raised by Terrorist Events in 2001

by:

Walter E. MugdanRegional Counsel

U.S. Environmental Protection AgencyRegion 2

New York, New YorkJanuary,2002

The first year of the current millennium will long be remembered, and not fondly, for abrace of very different terrorist attacks on the United States - first, the September 11 suicideplane bombings that brought down the World Trade Center and wreaked havoc at the Pentagon,and then the insidious anthrax letters that came shortly thereafter.

The U.S. Environmental Protection Agency (EPA) ha s played a comparatively small butvery important role in the subsequent governmental response to the first of these attacks, and alarger, more central role in the response to the second. A number of difficult, novel andinteresting environmental law issues have been presented by these terrible events. Thoughperhaps not central in the grand scheme of things, grappling with them was at once necessary.vexing and intellectually stimulating. Several of the environmental law issues related to theterror attacks and their aftermath are discussed in this paper.2

The ' ·11 Attacks

The events of September 11111 are painfully familiar to all Americans. In the immediateaftermath. aU attention was correctly focused on the rescue efforts, and on trying to understandwhat had occurred and how. But starting immediately on the 11th. and continuing withoutinterruption every day thereafter. EPA began carrying out the activities that would form a majorpart of its mission assignment for the disaster response: environmental monitoring to helpdetennine what short- and longer-term health risks were presented by the terrible events o f that

This article was written in the author's private capacity. Any opinions expressedherein are the author's own. No endorsement by the Environmental Protection Agency isintended or implied.

2 This paper will not address scientific questions concerning the environmentalmonitoring done for. and the risks posed by the pollutants associated with the terror attacks andtheir aftennath. Some of those issues are also current and controversial. but are beyond the scopeof this paper or the expertise of the author.

5

SEE page11 footnote where Mugdan claims the protective procedures specified under the EPA AsbestosNESHAP do not apply to the WTC cleanup, and Mugdan's defense pf tje do-it-yourself guidelines for residence/office cleanups with wet rags and mops, not even wearing dust masks, protects citizens.



day, and the extent and severity of such risks. 3 Working cooperatively with other governmentagencies (including in particular the New York State Department of Environmental Conservation(NYSDEC), the New York City Departments of Environmental Protection (NYCDEP) andHealth (NYCDOH). and the federal Occupational Safety and Health Administration (OSHA»,BP A has since that first day gathered and published literally thousands of pieces ofenvironmental data from the impact areas around the World Trade Center CWTC) and thePentagon. 4

Within the first hour after the attack on the Twin Towers. the Regional and NationalEmergency Response Teams (ERTs) were activated and EPA Region 2'8 Emergency OperationsCenter was established at its Edison facility. EPA sent teams of On-Scene Coordinators (OSCs)and ERT sampling personnel inlo the field to monitor the ambient ai r in Brooklyn neighborhoodswhere the massive plume from the wrc site was drifting. Ai r samples were conected also at

sites in New Jersey across the Hudson River from the WTC. OSCs went to Ground Zero tosurvey the environmental damage, and collect bulk debris and dust samples that had thick1ycoated the immediate area. Air, dust and bulk samples were quickly delivered to ERT'slaboratory in Edison and to private laboratories. The results were obtained overnight, providingvaluable infonnation on what types of contaminants had been released into the environment sothat appropriate guidance could be given to the thousands of rescue workers and residents in thesurrounding areas.

This monitoring effort continued and expanded dramatically in the subsequent days and

weeks. Many monitoring sites were established in concentric rings around Ground Zero. Publicinterest in and concern about environmental risks related to the disaster - particularly in thedensely populated downtown Manhattan areas around the WTC site - also began to rise quicklywithin a few days after the event, reaching high intensity by late October and throughoutNovember.

Among those most directly affected by the destruction and dust clouds from thebuildings' collapse ~ e r ethe thousands of residents who lived in the shadow of the TwinTowers. Their homes and lives were violently and profoundly affected by the events of 9-11.Apartment windows were blown out; and the pervasive dust infiltrated through open and

) EP A soon acquired additional related tasks in the response mission. Chief amongthese were the removal of the vast quantities of dust from the WTC building collapses that hadcovered streets, buildings, trees - virtually everything for blocks around the s i t e ~and theestablishment of a washing operation (which was later winterized in an enonnous heated tent)which provided for every worker and every vehicle exiting the site to be washed so thatcontamination would nol be c'arried outside the work area.

~EPA's web site at http://esjepa.&Qv/epahome/wtcl for all data and datasummaries, as well as related information about EPA's role and activities in the 9-11 response

effort



sometimes even closed windows. Depending on location, affected residents might haveanywhere from a very Jight coating to literally inches of dust covering every object and surface in

their apartments. s

Also much affected were tens of thousands of people who live elsewhere but workeddowntown. For some, their place of business no 10nger exists or is uninhabitable, and they arenow either unemployed or are obliged to work in new and sometimes distant and inconvenientlocations. Many others were able to return to their offices, stores and shops within a few d ays 6 orweeks after 9-11. But they returned to an area dominated by constant reminders of thedevastation - from a generally welcome increased security presence, to the very unwelcome andsometimes literally sickening odors that emanated from the fires in the ruins of the Trade Center.

And, of course, none were more directly affected by and concerned about environmentalrisks than the heroic rescue, emergency and recovery workers at Ground Zero - those mostfrequently and extensively exposed to the dust and the combustion products from the fires.

Those persistent fires and the pollutants they generated represented one of two majorthemes that dominated EPA's environmental monitoring efforts, and public inquiry, in the weeksand months after 9-11. The other was asbestos. Both were air quality issues, concerning bothindoor and outside air; both demanded extensive environmental monitoring on an unprecedentedscale and pace, ' The environmental concern about the dust focused largely on the presence of

5 The dust is only one of many problems these residents had to face. Others

included the difficulty of travel - getting to and from their apartments; the noise and traffic fromand night-long illumination of what quicldy became one of the largest construction sites in theworld, operating on a round-the-clock basis; fears about air quality outside their dwelJings aswell as i n s i d e ~and, of course, a whole suite of emotional reactions from living close to GroundZero.

IS Alileve)s of government commited themselves to do what was necessary to allowthe New York City financial markets to open again by Monday, September 17, six days after theattack. Region 2 o s e s provided assistance to financial companies that needed to access theiroffices prior to that date in order to get ready for the resumption of trading.

7 Since shortly after 9-11 EPA has sampled air for asbestos at some 21 sites inJower Manhattan twice daily. and at an additional 10 "outer" sites once daily; and EPA has alsosampled extensively for asbestos at the Fresh Kills Landfill. By the beginning of January, 2002,over 4,300 air samples have been taken and analyzed for asbestos. In addition, EPA has sampledfor dioxins, metals, PCBs and SiUcates at 10 sites twice weekly; for PM 2 .,S at 11 sites daily andfor PM 10 at 7 sites daily (in conjunction with NYSDEC); for VOCs daily at several work sites atGround Zero; for various gases at 19 sites daily; and additional sampling at and around FreshKills Landfill. in the outer Boroughs, in New Jersey and at the steel recycling operations.

1n addition to this air quality-related sampling. EPA conducted water monitoring at



asbestos; the dust also generated concerns about fine particulates (PM 2.5)' The fires thatcontinued to bum for months, accompanied by characteristic acrid odors that often penneateddowntown. raised concerns about volatile organic compounds (VOCs), semi-volatile organic

compounds, dioxins and furans. polychlorinated biphenyls (PCBs), polycyclic aromatichydrocarbons (PAHs). metals and particulates.

Asbestos Issues Associated with the WT C Collapse

Asbestos-containing material (ACM) including spray-on fireproofing (SOP) andinsulation was present in the Twin Towers. Although it was not used throughout the buildings, itwas present on many different floors in both towers. Thus, when the buildings collapsed it wasto be expected that asbestos would be among the components of the vast cloud that engulfedlower Manhattan. As noted previously, EPA ambient air monitoring and bulk dust sampling wascommenced by the early afternoon of September 11th. EPA's sampling immediately confirmedthese expectations:

• About a third of the bulk dust samples taken from streets, vehicles and buildings nearGround Zero were found to have more than 1 % asbestos.

• A relatively smaIl number of ambient air samples. primarily those taken closest toGround Zero in the days immediately after the attack. were found to have concentrationsin excess of 70 structures per square millimeter (s/mml) on a filter from an ambient

collection device.

These sampling efforts raised some difficult environmental Jaw questions: Do any EP A

asbestos-related regulations apply to the conditions or circumstances encountered after the WTCcollapse? I f so, how and to what extent? What standards should be used for reference whenreporting environmental sampling results?8

EP A has two sets of regulations that deal with asbestos. To borrow some well-knownSuperfund terminology. neither set of regulations is direct1y applicable to the conditions

outfal1s discharging from the WTC site into the Hudson River, at influent and effluent dischargelocations at the Newtown Creek Sewage Treatment Plant which receives wastewater from thewrc area, at sites next to piers that were dredged to allow for better access of barges that weregoing to be used to transport the debris from lower Manhattan to the Fresh Kills Landfill and tosteel recycling facilities in New Jersey, at fixed stations in lower Manhattan that are part of

NYC's drinking water system. and from water tanks on top of residential buildings. Thismonitoring was conducted to detennine any adverse impacts to the drinking water supply and theambient waters as a result of the disaster. No discharges of significance were identified.

8 Th e origin and significance of both the values cited - I % asbestos content and 70/ 2 i a i r di d f th b l



encountered in the wake of the WTC disaster. but selected elements of those regulations arerelevant and appropriate to the situation.

• The first set of asbestos-related regUlations are part of the National Emission Standardsfor Hazardous Air Pollutants (NESHAPs) promulgated pursuant to Section 112 of theClean Air Act, 42 U.S.C. §7412, and codified at 40 CPR Part 61, Subpart M. Asbestos isamong the hazardous air pollutants identified in these regulations. Of panicular interestare the asbestos NESHAPs rules for demolition and renovation of.buildings, 40 CFR§61.145 er seq.

• The second set of regulations are those promulgated by EPA pursuant to the AsbestosHazard Emergency Response Act (AHERA), which was an amendment to and is codifiedas Subchapter n of the Toxic Substances Control Act (TSCA). 15 U.S.C, §2641 et seq.AHERA concerned itself exclusively with asbestos in schools. EPA's AHBRAregulations are found at 40 CPR Part 763, Subpart E, §763.80 et seq.

Both sets of regulations include a definition and standard for "asbestos-containing material,"The AHERA regulations also include a "clearance" standard for inside air in school buildings to

be used after asbestos abatement work has been completed; in order to ensure that the space issafe for re-entry by children, teachers and other employees.

The Asbestos NESHAPs R u l ~ s

The asbestos NESHAPS rules define several categories of "asbestos-containing material"(ACM) and a subset thereof, "regulated asbestos-containing material" (RACM). The rulesspecify scientific test methods and concentration standards to determine whether a given materials ACM. See 40 CF R §61.141. To be classified as ACM. the material must have more than 1 %

asbestos; as determined using the specified test methods.

The a s b e s t o ~demolition/renovation NESHAPs rules apply to the "owner or operator of ademolition or renovation activity:; These terms are defined at 40 CFR §61.141:

"Demolition means the wrecking or taking out of any load-supporting structural memberof a facility together with any related handling operations or the intentional burning ofany facility."

"Renovation means altering a facility or one or more facility components in any way.including the stripping or removal of RACM from a facility component. Operations inwhich load-supporting structural members are wrecked or taken ou t are demolitions."

To be subject to the demolition/renovation regulations, the facility being demolished orhe portion of the facility being renovated must have in excess of cetain specified amounts of

RACM Specifically there must be more than 260 linear feet of RACM on pipes or more than



160 square feet of RACM on other facility components, or more than 35 cubic feet of RACMfacility components where the length or area cannot be measured.

I f a demolition or renovation activity is subject to the regulations. then specified workpractice requirements apply. The most important among these is that aU RACM be made"adequately wet" before removal. The purpose of wetting is to minimize emissions of asbestosto the outside air. (The Clean Air Act authorizes EPA to regulate for the protection of outsideair, not indoor air.)

One of the first decisions that EPA had to make when sampling for asbestos in the dustfrom the wrc collapse was what reference value to use when reporting the data - in otherwords. at what concentration of asbestos in the bulk dust samples would the Agency characterizethe dust as containing asbestos in quantities of significance? BP A elected to use the definitionACM from the NESHAPs regulations - i.e • the 1% asbestos content standard. 9

Around 35% of the samples of bulk dust taken in lower Manhattan in the first few daysafter the collapse exceeded the 1% value.

It is important to emphasize that the NESHAPs regulations which are the source of the1% reference value do not, on their face, have any direct legal applicability to the wre dust thawas deposited on the streets of lower Manhattan. The regulations govern asbestos manufacturingoperations and the renovation and demolition of buildings by building owners and operators. IO

They were not intended to address acts of terrorism. nor broad-scale contamination that may

9 ~ www,epa.govlepahomelwtc/actiyities.hun. an EPA web site pagedescribing the "Benchmarks, Standards and Guidelines Established to Protect Public Health"which EPA is utilizing in connection with 9-11 environmental data reporting. A comparabledefinition appears in the AHERA regulations, discussed further below. Note that the 1 %

standard is not necessarily health- or risk-based, but rather keyed to the detection limits of thespecified analytical methods. Note also that finding low levels (below 1 %) of asbestos in dustsamples at any time and anywhere in the City would not be unexpected, In an urban environmenlike New York, it would not be unusual to detect the presence of low levels of asbestos undernormal circumstances - i.e., "background levels".

10 When ACM or RACM is used in manufacturing operations. or is found inbuBdings, it is genera1ly present in high concentrations - 60%. 70% and higher. By contrast,when WTe dust was found to contain concentrations in excess of 1%, it was nevertheless still



ensue from such acts. 1I However, use of the NESHAPs definition of AC M to help characterize

WT C dust was an obvious and sensible choice.

Other NESHAPS-reIated asbestos questions arose in the weeks after the disaster. Forexample. EPA was asked whether the demolition/renovation regulations can be interpreted asbeing applicable to the cleaning of apartments and office spaces that received dust from theWorld Trade Center collapse. 12 We think not. The answer turns on whether or not cleaning dustfrom an apartment or office constitutes "renovation" as that term is used in the regulations. B

The definition of "renovation." quoted above. does not appear to contemplate this kind ofactivity, though it is possible to argue that the definition is elastic enough to cover the cleaning odust.

There is no case law directly on point. To this writer's knowledge, the only judicialopinion that grapples with the definition of the word "renovation" is U.S. \I . American National

CM Co., 126 F.Supp.2d 521 (ND.m.2000). There the government filed an enforcement caseagainst the owner of a building from which unauthorized scavengen; ha d removed structural steelcovered with RACM. Th e scavengers had, of course, not compJied with the NESHAPs rules.The court found. however. that the activity of unauthorized scavenging was not "renovation."

11 In the wake of several other disasters. including the Sa n Francisco earthquake andHurricane Hugo in 1989. EPA prepared 'lGuidelines for Catastrophic Emergency SituationsInvolving Asbestos," EPA 340/1-92-010, February 1992. Th e guidance recognizes that the

NESHAPs asbestos demolition/renovation rules are not applicable in all emergency situations,though they certainly are applicable in some.

12 The question wa s posed by at least one news reporter, whose inquiries wereprompted by a memorandum written by Dr. Cate Jenkins. an employee in the Office of SolidWaste in EPA's Washington Headquarters. dated November 15, 2001. Though not writingofficially fo r EPA, Dr. Jenkins sent this memorandum to a number of groups and individuals.Tw o major assertions sh e made were: (1) that the NESHAPs demolition/renovation regulationsdo apply to the cleaning of apartments and offices, and that EPA has "waived" these r e g u l a t

and (2) that EP A has not given appropriate advice to those who live and work in downtownManhattan with respect to cleaning dust from their homes or offices. EPA strongly disagreeswith both assertions. Both issues are discussed in the text above. In summary, as to the first, it isinaccurate to say that the regulations apply to cleaning of WTC dust from apartments or offices;and, in any event EP A did not "waive" the regulations (indeed, EP A has no legal authority towaive NESHAPs regulations). As to the second. EP A believes it has given consistent, practicaland protective advice to response workers. residents and workers in downtown Manhattan.

11 While the acts of the terrorists themselves probably do me t the definition of«demolition," prosecution for NESHAPs violations is not likely to be the most effective weaponin the war on terrorism. In any event, cleaning an office or apartment is certainly not·'demolition" - if i t is regulated at all, it would only be as a Urenovation."



The court's careful analysis of that word is instructive, if not dispositive of the question ofapplicability of the NESHAPs rules to cleaning of offices and apartments:

"Added to the asbestos NESHAP in 1975. renovation was initia1Jy defined as the'removing or stripping of friable asbestos material.' 40 Fed.Reg. at 48299. The EPAexplained its reasons for adding renovation as a regulated activity in a backgrounddocument published in 1974.... The EPA was concerned that 'major renovation

operations' that 'potentially result in asbestos emissions of a magnitude similar to thatfrom demolition' would go unregulated ... The 1974 Background Document cites the'rebuilding of industrial plants' and the 'replacement of apparatus' (e.g • 'replacement ofa boiler in an apartment building'), as examples of the sort of activity the EPA wasproposing to regulate as renovation.... The usage of these descriptive tenns suggests thatthe EPA had major restoration work ... in mind when it drafted the regulations ....

"The asbestos NESHAP has been amended and revised since 1975. Bach proposed andfinal amendment to the regulation has contained slight variations in the wording of thedefinition of 'renovation.' ... The EPA has repeatedly emphasized. however, that the

proposed and final changes were meant to clarify the regulations and not increase theirstringency ..... Id. at 526.

This analysis suggests that "renovation" cannot plausibly be stretched to include the cleaning ofWTe dust that reached apartments and offices. The original 1975 definition of renovation.which was unchanged and merely clarified by subsequent amendments. would clearly not applyto such activities. and the court cites EPA's own statements confirming that subsequentamendments were intended to clarify but not change the original scope of the rule.

On the other hand, the court does quote a standard dictionary definition for renovation:

"to restore to a former better state (as by cleaning, repairing or rebuilding).t Id. Thus, althoughthis writer submits that the better reading is that the NESHAPs regulations do no t app1y to the

cleaning of wrc dust from apartments and buildings. an argument could be fashioned from thedictionary definition. that "renovation" includes cleaning of WTC dust from inside buildings.

Be that as it may. it is clear that the instructions in the NESHAPs regulations for how toremove and handle asbestos-containing materials during a "renovation" are generaJ1y notpractical for or germane to the task of cleaning residential and office space of wec dust that maycontain relatively small amounts of asbestos.

EPA's objective, from the outset, has been to provide residents and those who work inlower Manhattan with Qur best advice about how to evaluate the safety of their space, and howbest to go about cleaning it if it was affected by WTC dust. We have focused on giving advicethat is both protective and practical. We have advised people that if they have WTC dust in theirhomes or offices, it may be easiest for them simply to assume that i t meets EPA's definition for"asbestos-containing materia)" rather than paying to test each dusted area separately and awaiting

12



the results before taking any further a c t i o n . l ~We have further advised people to use professionalasbestos abatement contractors to carry out cleaning wherever there is more than a minimalamount of dust.

By contrast. the instructions in the EPA demolition/renovation regulations would not beeither helpful or gennane to the problems faced by residents and workers in downtownManhattan. These regulations require that when ACM is to be disturbed during a demolition orrenovation activity. it must first be throughly wetted down before removal 15 This would becompletely impractical in homes and offices, where dust has covered papers, files. clothing,bedding. carpeting, upholstery. and so on. Soaking all such items with water would often destroythe very items that people are trying to clean and protect. And it would make it much harderperhaps even impossible - to then remove the soaked dust from those i t e m s ~the itemsthemselves would probably have to be discarded.'l'i And much of the dust was actuallypulverized concrete, which might pose additional problems when soaked with water. In short,advising people to foHow the instructions in the NESHAPs demolition/renovation regulationswould be unhelpful - even absurd - and we can be sure such advice wouldnot be followed.

Use of a professional asbestos contractor- as EPA has consistently recommended - ispractical advice, and likely to be more protective. While such contractors should not be expectedto adhere to the instructions in EPA's demolition/renovation regulations. for the reasons justnoted, they would be expected to have trained personnel. with adequate personal safety

14

We have been giving this advice because,inter alia,

a significant number of theWTC bulk dust samples that we analyzed did have more than 1% of asbestos. Moreover, wefound a great deal of variability in the results: dust samples taken very close to one anothernevertheless had very different asbestos concentrations. Finally, it is difficult and maybeimpossible to analyze "wipe" samples (taken where there is not enough dust for a "bulk" sampJe)in the same manner, using the same analytical technique. Thus. we felt our advice was prudentand practical: assume that WTC dust has a smal1 amount of asbestos in it, and act accordingly.

15 40 CPR §§ 61.145(c)(2)(i) and (3). A person carrying out a demolition orrenovation may, with EPA' s prior approval. remove ACM without first wetting it, i f the person

can demonstrate that wetting the ACM would "unavoidably damage equipment...... Id. But evenif EPA grants such approval. there are alternate requirements in the regulations that areimpractical for an apartment or office space (e.g., use of specially designed ventilation andparticulate collection systems). Moreover, it is unrealistic to think that each resident, building oroffice manager in downtown Manhattan could have made a written request for such approvalfrom EPA, with full supporting documentation; or that EPA could meaningfully evaluate suchrequests.

16 It may be that a professiona1 asbestos abatement contractor will advise thatcarpeting coated with WTC dust should be discarded and replaced. because it may be difficult to

fully clean asbestos from such carpeting. See also followingnote.



protection. They would be expected to use powerful HEPA-filter equipped vacuum cleaners. andthey would be expected to lmow how to properly use and service such equipment. 17 And theycan be expected to carry out clearance testing using air monitoring equipment after the cleanup,in order to confirm that it has been successful. ~ AHERA discussion, below.)

Questions about the applicability of the demolition/renovation NESHAPs have also beenposed with respect to the WTe steel recycling activities. Vast quantities of structural steel fromthe collapse site must be removed and disposed. Three disposal options were available: landfillthe s t e e l ~place it in the ocean as an artificial reef; or arrange for it to be recycled. In consultationwith EPA and the States of New York and New Jersey, New Yorle City chose the third option.Several recycling firms in New Jersey agreed to accept scrap WTC steel. The steel is brought tothe recyclers by barge from lower Manhattan.

EPA and the recyclers themselves have been sampling spray-on frreproofing material(SOP) left on some of the steel beams. Asbestos in excess of 1 % has been found in about 6% of

these samples. The environmental law question is whether the extraction of these steel beamsfrom Ground Zero, and their transport to New Jersey, and their further handling at the recyclingoperations, constitute either "demolition" or "renovation" within the meaning of the NESHAPregulations. Once again. though the better answer is probably "no," the issue could be debated.In any case, EPA focused on ensuring that practical and protective management practices be used

11 HEPA (high efficiency particulate) filters are used in vacuums when cleaningasbestos-containing dust. Note that there is some question as to whether a dry vacuum or wetvacuum cleaner would be best suited to removing asbestos-containing dust from carpeting. EPAstudied the issue twice in the early 1990's. The second study, "EvaJuation of Three CleaningMethods for Removing Asbestos from Carpet: Detennination of Airborne Asbestos

Concentrations Associated with Bach Method" (1993), compared three cleaning methods in a"real life" situation where carpet was heavily contaminated by friable asbestos-containingmaterial (1.6 billion S l f t ~ .The study evaluated dry vacuuming. with and without HEP Afiltration. as well as a wet vacuuming (no HEPA filtration) technique. The study concJudes: "Inbuildings containing friable ACM. vacuuming of carpets during routine custodial activitiesshould be perfonned with REP A-filtered dry vacuum cleaners. Carpets should be cleanedperiodically by a wet-cleaning method (e.g., a hot-water extraction cleaner). I f ACM has beenreleased onto a carpeted area during an operation and maintenance activity or as a result of fallensurfacing material, the gross debris should be removed by a HEPA filtered dry vacuum cleaner,followed by wet cJeaning of the carpet:'



in the handling of the steel. IS rather than grappling blindly with a regulatory scheme that wasnever designed for this kind of crisis.

AHERA Regulations

Along with the bulk dust samples, EPA began taking ambient air samples on September11111in an effort to determine the amount of airborne asbestos to which workers, residents andvisitors might be exposed. Once again, the key questions were what method we would use forthis ambient air testing. and to what reference standard the test results would be compared inorder to detennine whether the air was "safe. o

EPA has not promulgated an outdoor ambient air quality standard for asbestos; nor hasany other regulatory agency done so, for that matter. I9 The only standard for asbestos in air thatEPA has promulgated is found in the AHERA regulations referenced above. These rules includewhat is commonly called a clearance test, which is to be used by regulated schools to confirmthat an action to "remove. encapsulate, or enclose" asbestos-containing building material(ACBM. a term of art used in the AHERA regulations, which constitutes a subspecies of ACM)is comp1ete. 40 CFR §763.90(iX3). I f he school space in which such work has been performed'passes' the test specified in that regulation 20 it is presumed to be 'cleared' for use by children

18 For example. steel with SOF material (which may contain asbestos) stm intact

leaving Ground Zero is to be wetted down before transport to New Jersey; beams with SOP is tobe handled as gently as possible during transit to minimize disruption of the SOP; there should beno dry scraping or air blasting of SOF off beams when the material is dry (friable); sampling ofSOF at the recycling operations should continue, with at least 10% of beams with SOP beingsampled; and a reasonable amount of air monitoring should be conducted at the recyclingfacilities.

19 In fact, ambient air quality standards have been promulgated under the Clean AirAct for only a few (albeit ubiquitous) pollutants such as particulate matter, carbon monoxide.sulfur dioxide, oxides of nitrogen, ozone and lead. No such ambient standards have beenestablished for asbestos or most of the other hazardous air pollutants about which peopleexpressed justifiable concern in the aftennath of the WTC disaster, such as benzene, PCBs. vinylchloride and dioxin.

20 The regulations require that five air samples be taken inside the school spacewhere such work occurred. These samples are to be taken in a manner specified in an appendixto the regulation, and analyzed using transmission e1ectron microscopy (fEM). The results are tobe compared with five samples taken outside the affected space. The work may be considered"complete" (and the affected school space therefore cleared for use by children and schoolemployees) if there is no statistically significant difference between the five interior and the fiveexterior samples (as detennined by a prescribed statistical test); and the average concentration of



and school employees. The specified AHERA clearance test procedure includes, inter alia. astep in which air monitored in the affected space is compared with the specified "background"level of 70 structures 21 per square millimeter (70 slmm1) .

EPA elected to use the AHERA test method for our ambient air sampling in conectionwith the WTC and Pentagon disasters; and to use the 70 slmm2 background value as thereference value to which we would compare our ambient air asbestos sampling data. n ,

As in the case of the NESHAPs standard utilized for determining whether WTC dustwould be characterized as having Significant levels of asbestos. here too it is important toremember that the AHERA clearance test value is not directly applicable. in a traditionalregulatory sense, to the situation that presented itself in the wake of 9-11. The AHERA standardapplies only to indoor air in schools. after asbestos work has been done. But while not explicitly

applicable, to once again borrow Superfund tennino)ogy it is certainly "relevant andappropriate." I f we are satisfied that air in a school space where asbestos abatement work haSocurred is suitable for children and teachers when it does not exceed 70 slmml. then we shouldhave a comparable level of comfort when ambient air in downtown Manhattan does not exceedthe same 70 s/mm 2 value.23 And indeed. except for a few instances in the days soon after thedisaster, and at monitoring locations closest to Ground Zero, that value has rarely beenexceeded.24

three "field blank" filters is also below the specified "filter background level" of 70 slmm 2 (setext, above). 40 CFR §763.90(i)(3).

21 "Structures" is the tenn of art used to describe the tiny objects that are identifiedas asbestos when examined microscopicalJy using the TEM method. This identification is madebased on size. shape and proportion, rather than through chemistry or similar means. A"structure" is defined as a "microscopic bundle, cluster, fiber, or matrix which may containasbestos," 40 CPR Part 763, Subpart E, Appendix A, n.21. A "fiber" is definied as a "structur

greater than or equaJ to 0.5 p.m [micron] in length with an aspect ratio (length to width) of 5: 1greater and having substantially parallel sides." Id. at n.9. The terms "bundle," "cluster" and"matrix" are all defined as groups of fibers. Id. at n. 4., n. 6. and n.14.

22 EPA reviewed the federal OSHA standard for asbestos exposure, which is usedprotect workers on the job. That standard is 0.1 fibers per cubic centimeter (f/cc) averaged overan eight-hour day, a less stringent standard than the AHERA clearance level. To be asprotective as possible, EPA used the school re-entry standard as a reference value when reportingWTCdata.

23 Note that this AHERA standard was not explicitly developed as a risk-basedstandard Rather it is intended to represent a reasonably anticipated background value



Air Quality Concerns Related to the WTC Fires

The fires firstignited

by the jet liners crashing into the Twin Towers continued to bumfor many weeks in the massive pile of rubble left by the buildings· collapse.2S

The materials that were presumably burning were the kinds of materials found throughothe modern offices that filled the WTC buildings: carpeting, fabrics. plastics. composites, wooelectrical insulation, electronic equipment, etc. 16 The emissions from the burning of suchmaterials could be expected to include a variety of potentially hazardous air pollutants.

Immediately after the attack EPA deployed ERT's "TAGA" Mobile Laboratory to

Ground Zero. (In November, Region 2'8 Superfund Environmental Mobi1e Laboratory wasretrofitted so that air samples could be anaJyzed on-site for VOCs, and it replaced the TAGAunit.) Daily air samples are collected on and around the debris pile by EPA staff. and the VOCvalues are reported immediately. EPA also takes grab samples when and where smoke pJumesare sighted. The results are snapshots of the levels at a moment in time. The purpose of thissampling is to determine if there is any immediate danger to the rescue workers. EPA hasworked closely in this effort with the federal Occupational Safety and Health Administration(OSHA). EPA has also maintained a network of fixed monitors at and sufficiently beyond theGround Zero perimenter to evaluate exposure further away for residents, employees and visitors.

As with asbestos, ambient air quality standards do not exist for most of the pollutantsEPA was measuring; consequently. EPA has used as reference or screening values standards anguidelines developed in connection with other programs, andlor for other purposes. Forexample, Superfund Removal Action Guidelines were used for po]Jutants Hke dioxin, PCBs anbenzene. These are typically 30-year exposure standards. so calculations had to be perfonned t

s/mm 2• (Of these, 27 were collected prior to September 30; the three others were collected ne,a

Ground Zero on October 9. November 27 and December 27.) Additional samples have beentaken at locations in northern Manhattan and in the outer Boroughs, and show no levelsexceeding the AHERA standard. ~ www.epa.gov/epabome/wtc/datasummary.htm. Note,further. that ambient air levels above 70 s/mm2 do NOT imply an immediate health threat.Asbestos exposure becomes a health concern when high concentrations of asbestos fibers are

inhaled over a long period. IUness is very unlikely to result from a single, high-level exposure,nor from a short period of exposure to 10wer levels. ~www.epa.f:Qv!e.pahQmelwtclactiyjties.htm.

2S Not until late November or early December had enough debris been removed tosufficiently control or extinguish these fires so that they were no longer a frequent source ofi i i id d l i h di



generate I-year equivalent values, on the assumption that exposures to these pollutants wouldextend for less than one year. Existing OSHA standards were also used for benzene and otherVOCs. For most of these hazardous air pollutants. related to the fires, levels of concern werealmost never detected outside the immediate area of Ground Zero. Even there. the frequency

with which levels of concern were detected was generally quite low from the outset. and droppedoff as the fires were brought under control. Z7

Fine Particul@te Matter in Ambient Air

A variety of sources associated with the WTC disaster contribute particulate matter intothe air. These include the dust from the origina1 collapse; the re..entrainment of that dust duringresponse operations, and emissions from the many diesel-fueled vehicles and equipment used forthe response effort. Unlike many of the other emissions discussed above. EPA has promulgated

National AmbientAir

Quality Standards (NAAQS) for particulate matter, and specifically for"fine" particulates - those smaller than 10 microns in size (pM1O>and, more recently. forparticulates smaller than 2.S microns (pM1.s)' The sma1ler particulates are judged to create agreater risk. because they can be breathed into the lungs more deeply and easily.

EPA and State and loca1 agencies were able to draw on the existing network of particulatemonitoring stations for data in the aftermath of the wrc attack. Like other environmental dataassociated with the disaster, these data can be found on the EPA web site previously referenced,which also provides links to the NYSDEC web site where data from the State's monitoring

network is published. With only avery

few exceptions in the first days after 9·11,no

exceedences of the NAAQS for either PM IO or PMu were detected.

The Anthrax At taw

A completely different and more insidious kind of terrorist attack was the mailing ofanthrax-laced letters in mid-September, 2001. A number of letters, containing a potent form of

anthrax (reported to be what is known as the Ames strain, originally developed at a lab in Ames,Iowa), were mailed to a variety of addressees. I t appears that contamination from those letters -both directly and through cross-contamination of other pieces of mail - caused anthrax: infectionsin a number of persons, including postal workers and other citizens who were not addressees.

7:1 Benzene was the hazardous air pollutant detected at the most elevated levels.although almost exclusively at ground level in the WTC work area (i.e., below the "breathingzone" for a worker of ordinary stature). Outside the WTC work area, benzene values were neverrecorded at more than a small fraction of the selected reference values. Several samples showedlevels of concern for lead in the first two weeks at sites near Ground Zero; PCBs were neverdetected in the air at levels of concern; and dioxin levels of concern were detected a few times in



EPA has been actively involved in the response to the anthrax threat. EPA has had thelead responsibility for the decontamination of the Hart Senate Office Building in Washington,D.C., contaminated by an anthrax-filled letter addressed to Senate Majority Leader Tom Daschle.EPA also participated in the initial response to the contamination of the Miami newspaper officebuilding where the first case of anthrax was identified; and, to a lesser extent, the response toother instances of anthrax contamination such as that at the Morgan Processing and DistributionCenter, a major postal facility in mid-town Manhattan (through which passed the anthrax-finedletter addressed to teJevision news anchor Tom BrokaW).28

Several cha1lenging environmental law issues have arisen in connection with the responseat the Morgan postal facility. In November, the union representing workers at that facility filedsuit against the U.S. Postal Service (USPS) pursuant to the citizen suit provision of the ResourceConservation and Recovery Act (RCRA), an amendment to the Solid Waste Disposal Act, 42U.S.C. §6901 et seq.Z9 The citizen suit provision of RCRA appears at Section 7002, 42 U.S.C.§6972. The pertinent provisions of this (rather long) section are set out in Appendix A. below.

In summary, the lawsuit alleges that (a) anthrax is a hazardous waste. as that lenn is usedin RCRA; (b) the USPS has violated one or more provisions of subchapter i ll of RCRA, 42U.S.C. §6921 et seq. with respect to its handling or management of the anthrax at the Morganfacility; and (c) the USPS' handling or management of the anthrax at the facility presents animminent and substantial endangennent to health or the environment. 30

As we shal1 see below, it is important to note here that the second of these threeallegations was required for the plaintiff to avoid the otherwise mandatory 60- or 90-day periodfor advance notice to EPA before such a suit may be filed. See §7002(b} of RCRA, 42 U.S.C.

§6972(b).In

other words. only by alleging a subchapterm

violation could the postal workersunion file its complaint prior to expiration of the applicable 60- or 9O-day periods. as indeed itdid. Subchapter ill, also known as Subtitle C of RCRA. is the section of the law that authorizedEPA to promulgate the familiar hazardous waste regulations applicable to generators.transporters. and owners and operators of treatment. storage and disposal (TSD) facilities. Theseregulations are codified at 40 CPR Parts 260 et seq.

2& EPA Region 2 has had two On-Scene Coordinators assigned to the Morgan PostOffice building; however, the United States Postal Service has been the lead agency for responseto post office contamination, i n c 1 ~ d i n gat the Morgan building.

29 Smith et al. v. Potter. 01 Civ. 9512 (SDNy), filed 10/29/01. William Smith isPresident of the New York Metro Area Postal Union. John Potter is the Postmaster General ofthe United States. A similar suit was subsequently filed against the U.S. Marshall's Service andits contractor by the union representing court workers in the federal courts in Manhattan; andanother was filed inv01ving the New York State courts.

30 The suit also includes a common law nuisance claim under New York State law.



The plaintiffs asked the court for both a preliminary and a pennanent injunction againstthe operation of any mail facility found to contain anthrax spores, including Morgan, and torequire testing at all facilities that received mail processed through Morgan. and to close anyfacmty that tests positive for anthrax.

By way of factual background. around September 18. 2001 letters containing 8J)thraxwere mailed in New Jersey and sent to the Morgan facility. (Morgan is the central processingfacility fOf mail destined for Manhattan and the Bronx.) The letters containing anthrax wereprocessed at the Morgan facility, and - as was subsequently learned - anthrax was released intothe facility. When anthrax was later found on or in several pieces of equipment at Morgan, theaffected area was closed and cleanup initiated, and antibiotics were provided to workers.31

On November 9 the court denied the requested preliminary injunction to c10se Morgan. 32

On November 15 the court issued a more complete opinion and order, in which it concluded intealia that the USPS' activities with respect to the anthrax contamination at Morgan did not posean imminent and substantial endangennent under RCRA. 33

The court did not rule on whether the anthrax constituted a RCRA "solid waste" or"hazardous waste." Those are, however, among the most important and fundamental questionsraised by the lawsuit. In considering these questions it is, moreover, necessary to parse evenmore finely: one must analyze whether the anthrax is a "statutory hazardous waste" - i.e •satisfying the definition in the statute itself - and, separately, whether it is a "regulatory

hazardous waste" - i.e., satisfying the definition in the EPA regulations promulgated pursuant tSubtitle C (subchapter III) of RCRA. Somewhat counter-intuitively, these two definitions arenot the s a m e ~rather, Subtitle C regulatory hazardous wastes are a smaller subset of statutoryhazardous wastes. 3oC

31 Fortunately. to date none of the postal workers at the Morgan facility havecontracted anthrax.

32

~ Order Denying Preliminary Injunction. dated November 9, 2001.33 Smith v. Poner, 2001 WL 1448460 (Nov. 15,2001 S.D.N.Y.). The Court found

that the USPS "had taken appropriate remedial measures to diminish any safety risk created bythe presence of anthrax at the Morgan Facility," and that "thanks to the remedial actionsemployed. the continued operation of the Morgan Facility currently poses no imminent andsubstantial risk to the health or environment." Order at 5, 7. The court also concluded that thefederal government had not waived sovereign immunity to injunctive reUefbased on the publicnuisance cause of action. The court did require additional testing and reporting of the resullS

back to the court.30C Stated another way all regulatory hazardous wastes are statutory hazardous



As anyone who has dealt with RCRA is well aware, both the statutory and regulatorydefinitions of these terms are deceptively complex, and it is not always easy to detennine how aparticular substance. used a particular way, or generated by a particular process or activity,should be characterized.

In the statute, Congress defined "hazardous waste" as:

" ... a solid waste, or combination of solid wastes, which because of its quantity,concentration, or physical, chemical or infectious characteristics may _.

(A) cause, or significantly contribute to an increase in mortality or an increase inserious irreversible. or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or theenvironment when improperly treated, stored. transported, or disposed of. or otherwisemanaged." 42 U.S.C. §9603(5).

Anthrax self-evident1y satisfies the criteria for hazardousness in both (A) and (B), above.

However. in order to be a "hazardous waste" a substance must first be properly classified as a"solid waste" and thus the definition of the latter term is of central importance. That termbroadly encompasses any garbage. refuse, sludge or other discarded materials. 42 U.S.C.§6903(27). With respect to the classification of anthrax from the terrorist letters. the keyquestion is if and when it can be characterized as having been "discarded. t That word is notitself further defined in the statute.

In Subtitle C of RCRA. Congress directed EPA to identify and Jist. by regulation. solidwastes which are determined to be "hazardous!' Section 3001,42 U.S.C. §6921. It is theseregulatory hazardous wastes which are the subject of the elaborate RCRA regulations applicableto hazardous waste generators and transporters, and those who own or operate TSD facilities.RCRA gave EPA little guidance beyond the above-quoted statutory definition on how to identifywastes which are hazardous.

In the RCRA regulations promulgated by EPA. there are definitions of both usolid" and"hazardous" waste, and the word "discarded" is also defined.lS But, for the purpose of this

lS A "solid waste" is defined at 40 CFR §261.2(a)(1) as "any discarded material"that is not otherwise excluded from the definition by other regulatory provisions. "Discardedmaterial" is defined in pertinent part to mean any material which is "abandoned." 40 CPR§261.2(a)(2). Materials are defined as "abandoned" if they are disposed of. burned orincinerated; or accumulated, stored or treated (but not recycled) before or in lieu of beingabandoned by one of those means. 40 CPR §26L2(b). Thus, under the regulations. somewhatelliptically a material is "discarded" if it is disposed of. "Disposal" is defined. not in theregulations but in the statute, as .....the discharge, deposit ... dumping. spilling, leaking, or placingof any solid waste or hazardous waste into or on any land or water so that such solid waste orhazardous waste or any constituent thereof may enter the environment or be emitted into the air



discussion, what is important about the regulatory definitions and listing of hazardous waste isthat anthrax is definitely no t included. The RCRA Subtitle C regulations identify regulatedhazardous wastes either by characteristic or by listing. 40 CPR Part 262. Anthrax displays noof the four characteristics by which a soHd waste may be identified as a hazardous waste (i.e.,toxicity. corrosivity. reactivity or ignitability; 40 CPR §261. Subpart C); nor does i t appear onlists of chemicals or industrial process wastes which, if solid wastes, are defined as hazardouswastes pursuant to the regulations (40 CPR Part 261, Subpart D).

In short, anthrax is not - even when discarded (and thus a solid waste) - a regulatoryhazardous waste. By definition, therefore, it is not possible for one to be in violation of SubtitleC (subchapter Ill) of RCRA with respect to the management of anthrax or anthrax-contaminatedmaterial. as the USPS is alleged to be in Smith v. Potter.

(An interesting but ultimately tangential question related to this issue concerns RCRAstate authorization. The hazardous waste regulatory program of New York, like many otherstates, has been authon:-.ed byEPA under §3006 of RCRA, 42 U.S.C. §6926. The authorizedportions of a state's program are applied in Heu of the comparable federal regulations. I t ispossible that anthrax might satisfy a state's criteria for a regulatory hazardous waste, Howeverto the extent authorized state regulations are "broader in scope" than the federa1 regulations. tbroader portions are not federally enforceable.lIS The identification by a state of a substance ahazardous waste which is not so identified under the federal rules is the classic example of stateregulation that is "broader in scope" than the federal rules.:n Thus, even i f a state listed anthraxin its federaUy authorized hazardous waste rules, the federal government and the federal courtswould lack jurisdiction to apply the RCRA regulatory requirements to that sUbstance.J8)

or discharged into any waters. including ground waters,"

16 EPA regulations expressly provide that "[wJhere an approved State [hazardouswaste] program has a greater scope than required by Federal law, the additional coverage is not

part of the Federal1yapproved program." 40 C.F.R. § 271.1(i)(2). (This is distinguished fromstate regulations that are more stringent than the federal rules; when authorized, these arefederally enforceable.)

37 For example. many states regulate PCBs and/or asbestos as hazardous wastes, bthe federal RCRA rules do not (because these pollutants are regulated under other laws - TSCAand the Clean Air Act). State hazardous waste rules listing these substances are not federallyenforceable, even when authorized.

311 The government has also argued in its January 11,2002 Motion to Dismiss thecomplaint in Smith v. Potter that, in any event, the Complaint wrongly cited violations of fedeRCRA regulations rather than the New York State rules authorized by EPA pursuant to RCR



That anthrax is not a regulatory hazardous waste is a conclusion that has a potentiallyimportant implication for the Morgan facility lawsuit. It could be argued that the case oUght noto have been filed before the expiration of the statutory 60- or 90-day notice period, as in fact itwas. As noted earlier, immediate filing is permitted under RCRA §7002(b) only if a subchapteri l l violation is alleged. The postal workers' lawsuit certainly alleged such a violation, but asshown above, no such violation could possibly exist since anthrax is clearly no t a "regulatory

hazardous waste/' and subchapter m applies only to such regulatory hazardous wastes;

An interesting question. then. is whether or not the mere allegation of a subchapter i l l

violation, no matter how unsupportable, is sufficient to defeat the requirement that the plaintiffwait until the expiration of the statutory notice period. However, that issue has not beenaddressed in Smith v. Potter.

In any event, the conclusion that anthrax is not a regulatory hazardous waste, andtherefore there can be no subchapter m violations, is ultimately dispositive of several of thecontentions in the postal workers' lawsuit. For most of the remaining contentions, the analysismust now return to the statutory definition of "hazardous waste," which governs all ofRCRA'snon-Subtitle C provisions, including the "imminent and substantial endangerment" provision of§7002 (the citizen suit provision under which Smith v. Poner was filed) and the analogousfederal enforcement provision of §7003, 42 U.S.C. §6973.

As noted above. the key question is whether the anthrax spores found in the Morganfacility can be said to have been "discarded" and. if so, at what point in time did they become"discarded." There are various points along the timeline of events related to the anthrax letterswhich one may analyze whether the anthrax spores themselves can be said to have becomediscarded. five points along that timeline which may be considered representative are:

1. when the terrorist first acquired the anthrax andlor manufactured the anthrax-ladenpowder;

2. when the terrorist deposited the letters into the mailbox;3. when the letter was being processed through one or another mail facility, and spores

began to leak out of the envelope and contaminate equipment and surrounding a r e a s ~

4. when the Jetter reached the addressee and was opened;5. or finally, when the escaped anthrax spores were found at the Morgan Post Office facility.

With respect to timeline points 1 and perhaps 2, above, it is possib1e to advance thesomewhat macabre argument that anthrax spores in the letters sent by the terrorist are not"discarded" because they are stiU being used for their intended purpose - to sicken and kill

be dismissed.



people - and have thus not been disposed of, abandoned, or thrown away.J9 Regarding theterrorist's "state of mind." this analysis may be accurate enough. so far as it goes. But contraryarguments could also be made, at least with respect to timeline point 2, at which moment the

terrorist relinquishes custody of the letter to the USPS.

At the other end of the timeline - point 5 - the issue is much more clear. Once .anthraxspores have been found by the USPS in its own facility. the "state of mind" of the terrorist is ono further possible relevance. Upon discovery. the USPS will inevitabJy undertake to dispose othe spores (safely, of course) at the earliest possible time and i ~ the most effective and completeway. At that point on the timeline the spores can definitively be said to have been "discarded,"and they would therefore constitute a statutory (though still not a regulatory) hazardous waste. 4

39 This argument builds on some of the reasoning in Connecticut CoastalFisherman's Assn v. RemingtonAnns Co • Inc., 989 F.2d 1305 (2d Cir, 1993) and No SprayCoalition. Inc. v. City of New York. 2001 WL 604987 (2d Cir. 2(01). See following note.Indeed, essentially this argument was advanced in a brief filed by the U.S. in oppOsition to thepreliminary injunction demand in the Smith case. However. that argument was later retractedafter the matter was considered further by USPS and the Department of Justice in consultationwith EPA. ~ Government's January 11 Memorandum in Support of DefendanCs Motion toDismiss.

40 This analysis is consistent with the positions taken by EPA in some analogoussituations. For example, EPA has long held that spilled materials or materials that leak from abarrel are solid waste. And unused military munitions are solid waste if and when the custodiandecides to throw them away. Nor is this analysis inconsistent with the Second Cin:::uit decisioncited in the previous note. In Connecticut Coastal, the court refused to decide whether the leadshot and clay targets that fell into Long Island Sound as the result of past activities at a shootingrange feU within the narrow regulatory definition of "solid waste." The court agreed with EPAthat the spent lead shot and targets. which had been accumulating for about 70 years, had"accumulated long enough to be considered solid waste" under the broader statutory definition.The court did not decide whether the lead shot and targets were statutory solid waste at someearlier point in time. Notably, the entity that controlled the spent shot and target in the Soundwas not treating it as discarded material. which is very different from how the USPS treatedanthrax once it was discovered at its facility. In No Spray. the court concluded that pesticideapplied through aeriaJ spraying was not a statutory o r regulatory solid waste because it was notdiscarded until after it served its intended purpose of reaching and ki1ling mosquitoes and theirlarvae. This case, too, is distinguishable because (a) no one was treating the pesticide as a

discarded material. as USPS treated anthrax. Both the pesticide manufacturer and applicatorintended the substance to be used as a pesticide to kill mosquitoes and their 1arvae. In contrast,the laboratory that originally created the Ames strain of anthrax (the strain found in the terrorist's



A similar analysis can be made for timeline point 4, especially i f the recipient of the letter knoor suspects the contents to be anthrax.

The argument is a little more complex at timeline point 3. Here, the spores have escapthe envelope, but the USPS is not yet aware of that fact. Some interesting legal arguments coube made about this moment on the t i m e l i n e ~but the issue is entirely academic and need notconcern us too much. After all, if nobody is aware that anthrax spores are present, it driesn'tmake much practical difference whether or not they can theoretically be characterized as a

statutory hazardous waste ...

1

Even though theanthrax spores are conceded to have been "discarded" by no later thathe time when they werefound by the USPS in the Morgan faciJity, in order to prevail theplaintiffs must stin prove that the USPS' "handling, storage, treatment, transportation, ordisposal of any [anthrax] may present an imminent and substantial endangerment to public healthor the environment." In its initial decision. denying the requested preliminary injunction, thecourt detennined that no such endangerment continued to exist (i.e., after the cleanup workalready carried out by the USPS).42

A final legal hurdle for the plaintiffs is that the response of the USPS to the anthrax atMorgan facility has been identified as a Superfund response action under §104 of theComprehensive Environmental Response, Compensation and IiabiHty Act (CERCLA), 42U.S.C. §9604.43 This confronts the plaintiffs with the prohibition against commencement of aRCRA citizen suit for imminent and substantial endangennent where a Superfund removal orother response action has been commenced. 42 U.S.C. §6972(b)(2)(B).44 That provision is

against the addressees, and not against people in the postal service. In any event. once USPSdecided to clean up the contamination, the spores were no longer being used to further the

terrorist's presumed purpose. '

41 This may be the environmental Jaw analog to the philosopher's old saw: " i f a tre

falls in the forest, and nobody is there to hear it, did it make a sound?"

42 Smith v. Potter, 2001 WL 1448460 (Nov. 15.2001 S.D.N.Y.).

43 Like the heads of other federal agencies, the Postmaster General has beendelegated the authority to carry out CERCLA removalactions at facilities controlled by hisagency. The Postmaster has executed an action memorandumapproving under CERCLA theremoval action at the Morgan facility. ~ Memorandumof La w in Support of Defendant'sMotion to Dismiss, Smith v. Poner, filed Ian. 11,2002.



further bolstered by the statutory prohibition against pre-enforcement review of any chaJlenge toa Superfund response action, set out in §113(h) of the Comprehensive Environmental Response.Compensation and liability Act (CERCLA). 42 U.S.C. §9613(h). Implicitly, the RCRA citizensuit represents a challenge to the USPS' Superfund response action at the Morgan facility, andwould thus also be barred by this provision of CERCLA.

Cosine Note

Both the 9-11 attacks and the terrorism of the anthrax letters presented a number ofintellectually stimulating environmental law issues. several of which have been explored in thispaper. It goes without saying, however. that the significance of these issues pales in comparisonwith the overwhelming tragedies associated with these terrorist acts, and the anxieties andwidespread disruption they have caused,

Supp. 152 (D, N.Mex. 1992) at 154, in which the court rejected an argument that the bar onRCRA citizen suit under 42 U.S.C. § 6972(b)(2)(B)(H) did'not apply merely' because the federalBureau of Land Management undertook a CERCLA § 104 removal action instead of EPA.



APPENDIX A

Seetion 7002 of RCRA, "CitlWn Suits"

This section provides. in pertinent part:

"(a) In general.Except as provided in subsection (b) or (c) of this section, any person may

commence a civil action on his own behalf-(l)(A) against any person (including (a) the United States, and (b) any other

governmental instrumentality or agency. to the extent pennitted by the eleventhamendment to the Constitution) who is alleged to be in violation of any pennit, standard

regulation, condition, requirement. prohibition, or order which has become effectivepursuant to this chapter; or

(B) against any person. including the United States and any other governmentalinstrumentality or agency, to the extent pennitted by the eleventh amendment to theConstitution, and including any past or present generator, past or present transporter, or

past or present owner or operator of a treatment. storage, or disposal facility, who hascontributed or wh o is contributing to th e past or present handling. storage, treatment.transportation, or disposal of any solid or hazardous waste which may present animminent and substantial endangerment to hea1th or the environment ...

(b) Actions prohibited(1) No action may be commenced under subsection (a)(l)(A) of this section-

(A) prior to 60 days after the plaintiff has given notice of the violation t o -

(i) the Administrator [o f EPA];(ii) the State in which the alleged violation occurs; and(iii) to any alleged violator of such permit, standard. regulation. condition,

requirement, prohibition. or order,except that such action may be brought immediately after such notification in the case oany action under this section respecting a violation of subchapter m of this chapter; or

(B) if the Administtator or State has commenced and is diligently prosecuting acivil or criminal action in a court of the United States or a State to require compliancewith such permit. standard, regulation, condition, requirement, prohibition, or order .. .

(2)(A) No action may be commenced under subsection (a)(1 )(B) of this sectionprior to ninety days after the plaintiff has given notice of the endangerment to -

(i) the Administtator;(ii) the State in which the alleged endangerment may occur; and



(iii) any person alleged to have contributed to or to be contributing to thepast or present handling, storage. treatment. transportation or disposal of any solid orhazardous waste referred to in subsection (a)(l)(B) of this section,except that such action may be brought immediately after such notification in the case of

any action under this section respecting a vioJation of subchapter i l l of this chapter.

(B) No action maybe

commenced under subsection (a)(1)(B) Oflhis sectionif

the Administrator; in order to restrain or abate acts or conditions which may havecontributed or are contributing to the activities which may present the allegedendangerrnent-

(i ) has commenced and is diligently prosecuting an action under ...section 106 of [CERCLA];

(ii) is actua1lyengaging in a remova1 action under section 104 of

[CERCLA];(iii) has incurred costs to initiate aCn RIIFS] under section 104 of

[CERCLA); or(iv) has obtained a court order (including a consent decree) or issued an

administrative order under section 106 of [CERCLA] or section 6973 of this title[RCRA §7003] pursuant to which a responsible party is diligently conducting aremoval action, ... RIlFS .., or proceeding with a remedial action . . . .



New York City Department of HealthResponds to the World Trade Center Disaster

Recommendations for People Re-Occupying Commercial Buildingsand Residents Re-Entering Their Homes

What steps should I take upon returning to my workplace or home? If you were evacuated from a residence or workplace south of Warren Street, west of Broadway, and north of Exchange Street, and have been approved to resume tenancy by your building manager, you are advised to weara dust mask upon entering this area to decrease the possibility of dust inhalation and throat irritation. Outside

these boundaries, masks are not necessary, but may be worn for your own comfort. If there is dust presentindoors, it should not be necessary to wear this mask if you follow the cleaning procedures detailed below.

In a workplace, speak to your supervisor to see if there are special startup and cleaning procedure. In very dustyplaces, clean-up may be necessary before equipment can be restarted. Follow the cleaning procedures discussedbelow.

In your home, you should first make sure that conditions are safe. You should enter your home dressed in a longsleeve shirt and pants, and with closed shoes. Upon entry:

Check for the smell of gas. If the apartment smells of gas, leave immediately and report it to your buildingmanager and to Con Edison.Check for broken glass and fixtures. Wrap any broken glass in paper and mark it “broken glass.” If largepieces of glass are broken, ask your building superintendent for instructions on disposal.Run hot and cold water from each of the taps for at least two minutes, or until water runs completely clean.Flush toilets until bowls are refilled. For air pressure systems, you may need to flush several times. If thereare any problems with the toilet or plumbing system, call a plumber -- do not try to fix the problemyourself.Follow the cleaning procedures discussed below.

I have heard that asbestos was released from the collapse of the World Trade Center. What are the healtheffects of asbestos? Because some asbestos was used in the building of the World Trade Center, City, State, and Federal agencieshave been collecting dust, debris, and air samples since the World Trade Center collapse. As expected, someasbestos was found in a few of the dust and debris samples taken from the blast site and individuals working inthis area have been advised to take precautions. However, most of the air samples taken have been below levelsof concern. Based on the asbestos test results received thus far, there are no significant health risks to occupantsin the affected area or to the general public.

In general, asbestos-related lung disease results only from intense asbestos exposure experienced over a periodof many years, primarily as a consequence of occupational exposures. The risk of developing anasbestos-related illness following an exposure of short duration, even to high levels, is extremely low.

What should I do with food left in my apartment?

1/22/02

DOH - Recommendations for People Re-Oc...ings and Residents Re-Entering Their Homes http://www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html

THE ORIGINAL WEBSITE POSTING IS UNAVAILABLE, BUT THIS DOCUMENT CAN STILL BE FOUND AT THE "WWW.ARCHIVE.ORG"http://web.archive.org/web/20011111024046/http://www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html

"If there is dust present indoors, it should not be necessary to wear this mask [common dust mask, not even a HEPA respirator] if you follow the cleaningprocedures detailed below. ... Where dust is thick, you can directly wet the dustwith water, and remove it with wet rags and mops."



The power outage in much of lower Manhattan may have caused refrigerated and frozen food to spoil. Raw orcooked meat, poultry and seafood, milk and milk-containing products, eggs, mayonnaise and creamy dressings,and cooked foods should be thrown out if power was out for two or more hours. Frozen foods that have thawedshould be thrown away. Do not re-freeze thawed food.

Throw away any food that may have been contaminated with dust, except for food in cans, jars, or containerswith tight-fitting lids. Wash cans and jars with water and wipe it clean. When it comes to food left in yourbuilding, if in doubt, throw it out.

How should I clean the dust in my apartment when I move back in? The best way to remove dust is to use a wet rag or wet mop. Sweeping with a dry broom is not recommendedbecause it can make dust airborne again. Where dust is thick, you can directly wet the dust with water, andremove it with wet rags and mops. Dirty rags can be rinsed under running water, being careful to not leave dustin the sink to dry. When done, used rags and mops should be put in plastic bags while they are still wet andbags should be sealed and discarded. Cloth rags should be washed separately from other laundry. Wash heavilysoiled or dusty clothing or linens twice. Remove lint from washing machines and filters in the dryers with eachlaundry load. Rags should not be allowed to dry out before bagging and disposal or washing.

To reduce dust recirculation, the Health Department recommends using HEPA (high efficiency particulate air)

filtration vacuums when cleaning up apartments, if possible. If a HEPA vacuum is not available, it isrecommended that either HEPA bags or dust allergen bags be used with your regular vacuum. If these optionsare not available, wetting down the dust and removing it as described above is recommended.

Carpets and upholstery can be shampooed and then vacuumed.

If your apartment is very dusty, you should wash or HEPA vacuum your curtains. If curtains need to betaken down, take them down slowly to keep dust from circulating in the air.To clean plants, rinse leaves with water. Pets can be washed with running water from a hose or faucet;their paws should be wiped to avoid tracking dust inside the home.

How can I remove dust from the air? Air purifiers may help reduce indoor dust levels. HEPA air purifiers are superior to other models in filtering thesmallest particles. Air purifiers are only useful for removing dust from the air. They will not remove dustalready deposited on floors, shelves, upholstery or rugs. Keep windows closed when using an air purifier.

Additional recommendations include:

Keep outdoor dust from entering the home;Keep windows closed;Set the air conditioner to re-circulate air (closed vents), and clean or change the filter frequently;Remove shoes before entering the home for several days (once you first make sure there is no brokenglass)

Avoid sweeping or other outdoor maintenance.

For more information, call the Health Department’s General Information Line at (212) 213 - 1844.

Go to WTC Information page || NYC DOH Home Page || Health Topics || Public Information |||| ff || || || d || f ||

DOH - Recommendations for People Re-Oc...ings and Residents Re-Entering Their Homes http://www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html

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