jenkins 031102 asbestos status wtc

* The conclusions and opinions in this memorandum are those of the author and donot necessarily reflect those of the U.S. Environmental Protection Agency.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

OFFICE OF

SOLID WASTE AND EMERGENCY

RESPONSE

MEMORANDUM

DATE: March 11, 2002 - c

SUBJECT: Status of air and dust asbestos testing after WTC collapse

1. Misrepresented “safe levels” and standards for asbestos

2. Failure to test at low levels related to safety

3. Region 2 relied on more sensitive TEM tests for settled

dusts in own building, required by EPA policy, did not

provide same sensitive testing for rest of NYC, and refused

Region 8 offer of free sensitive testing for rest of NYC

FROM: Cate Jenkins, Ph.D.*

[email protected]

Waste Identification Branch (Mail Code 5304 W)

Hazardous Waste Identification Division

TO: Affected Parties and Responsible Officials

This memorandum provides documentation of EPA Region 2's failure to address theaftermath of the World Trade Center (WTC) collapse with adequate environmentalmonitoring for asbestos. Region 2's rationales for its actions and decisions are provided inthis memorandum. These are contrasted with extensive abstracts of the Code of FederalRegulations and other EPA guidance which contradict the contentions of Region 2. Thetesting methods upon which Region 2 relied as a basis for abating its own building forasbestos are compared to the testing methods Region 2 utilized to evaluate asbestos for therest of New York City, and the official EPA policy requiring the use of the more sensitivetesting methods.

The following table of contents also serves as a summary.

Cate

Text Box

Also includes copy of Congressman Nadler's 4/12/02 White Paper which references Jenkins' reports/memos dated: 11/15/01, 12/19/01, 1/11/02, 3/6/02, and 3/11/02

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TABLE OF CONTENTS page

ASBESTOS IN AIR 6

Region 2 falsely claims 70 structures/square millimeter is “AHERA standard” 6

70 s/mm2 is not the AHERA standard, as explained in the AHERA regulationsthemselves

8

– It is a LABORATORY BACKGROUND, the same as a DETECTION LIMITor lab SENSITIVITY

8

– A “LABORATORY BACKGROUND” is like going to a salad bar with acontainer for the salad.

8

– The scale at the cashiers is good for weighing the large amount of salad,because the weight of the container is relatively small.

8

– But if you went to the cashiers with an empty container and asked that it beweighed for traces of cyanide, you would be out of luck, since the cyanidewould weigh much less than the container.

8

– The container for the salad is like a “LABORATORY BACKGROUND” 8

Region 2 mistakes 70 s/mm2 as a normal air “background” level 10

The actual AHERA standard for asbestos in air is ZERO 11

– The AHERA regulations explicitly state: “there are no safe exposures toasbestos”

11

The Asbestos School Hazard Detection and Control Act states that the only standardor safe exposure level to asbestos is ZERO

11

There are no other EPA ambient air standards other than ZERO asbestos 12

EPA acceptable risk levels for comparison to the 70 s/mm2 – AHERA level 12

Explanation of “PCM equivalent” asbestos fibers 13

70 s/mm2 – AHERA is 2375 to 4750 times higher than EPA’s 10 -6 risk level 13

70 s/mm2 – AHERA is higher than levels found at the Libby Superfund site 15

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If asbestos were present at Region 2's detection limits, levels would be higher thanEPA’s 10 -6 risk level

17

– A sensitive laboratory method is like looking at something with a microscope,or even an electron microscope

17

– A cruder or less sensitive method is like looking for something with a hand-heldmagnifying glass.

17

– A low detection limit is the same thing as high sensitivity. A much loweramount can be detected, like a microscopic grain of sand. The microscopicgrain of sand is the “detection limit.”

17

– A high detection limit means low sensitivity. The detection limit would belarger, like only being able to detect a piece of gravel. The piece of gravelwould be the “high detection limit.”

17

If asbestos were present at Region 2's detection limits, levels would be higher than theLibby Superfund site

18

Typical background air levels are lower than Region 2's detection limits 19

70 s/mm2 – AHERA must be used in combination with a leaf blower (aggressivetesting) in an enclosed space to be relevant to predicting risks

20

– The law (through implementing regulations) requires this combination 20

– You can’t have one without the others 20

Reasons why EPA and laboratories misuse the term “AHERA test” 20

EPA developed the “aggressive leaf-blower/short term air test” to save time 21

– Previously, EPA required air sampling for at least 8 hours or more 21

EPA did not test air indoors, or air where children actually breathe 22

Chart of cancer risks associated with different asbestos test levels, standards, Region2 detection limits, inside homes at Libby Superfund site, and typical normalbackground air levels

24

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ASBESTOS IN SETTLED SURFACE DUSTS AND SOILS 25

EPA Region 2 claims that 1% is the safe level for asbestos in dusts lying on surfacesor in soils

25

Under the EPA NESHAP, 1% asbestos is not considered a safe level 26

– 1% only applies when defining the asbestos-containing building material itself 26

– Region 2 agrees that 1% is not related to health risks 26

– Region 2 states that 1% is only the detection limit of a crude method, PLM,that lacks sensitivity to test for lower levels

26

– Region 2 fails to state that EPA policy requires a more sensitive method, TEM,for settled dusts and other solids

26

In Superfund guidance, EPA found 1% asbestos or lower is hazardous 27

Soils containing only 0.001% asbestos can lead to hazardous air levels 27

Decontamination of demolition sites must be cleaned up to background, not just 1%, under the EPA asbestos NESHAP

28

Under both the EPA NESHAP and AHERA regulations, ZERO emissions ofasbestos-contaminated dusts is required, not emissions containing only 1% asbestosor less

29

EPA guidance requires the most sensitive method, transmission electron microscopy(TEM), for certain bulk materials under both the asbestos NESHAP and AHERA

31

– Region 2 only used the less sensitive method, PLM, in violation of EPA policy 31

EPA NESHAP regulations require testing by the sensitive TEM method for asbestos-derived wastes to determine if they asbestos free

32

– The asbestos-free level is “no asbestos detected by TEM” – not 1% 32

OSHA regulations recommend TEM analyses of settled, bulk dusts 34

Settled dusts in Lower Manhattan had higher asbestos than soils in Libby, MT 34

– Region 2 claims that asbestos levels are “low” in Manhattan dust 34

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REGION 2 ASBESTOS ABATEMENT AT THEIR OWN 290 BROADWAYBUILDING

36

EPA Region 2 had positive results from sensitive TEM testing for its own buildingand on this basis decided to abate for asbestos

36

– Less sensitive PLM tests, the only one used for bulk dusts for the rest ofManhattan, were negative for the Region 2 building

36

– But for the results from the more sensitive tests, Region 2 would not haveabated asbestos from its building

36

– TEM tests for bulk dust are required by EPA policy, but Region 2 did not usethese tests for the rest of Manhattan

36

– EPA Region 2 was offered free access to similar more sensitive testing (SEM)by Region 8 for the rest of Manhattan but refused

36

– The same, more sensitive test method (SEM) was used after the first bombingof the WTC in 1993, but Region 2 refused it after the WTC

36

Difference in testing methods and sensitivities for: 38

– EPA Region 2 building at 290 Broadway 38

– All of Manhattan and surrounding NYC after WTC collapse 38

– After the first bombing of the World Trade Center 38

Region 2 defends the sensitive TEM settled dust tests on its own building “becausethe lab suggested it to GSA”

41

– The lab suggested it only because it was official EPA guidance and a NY Stateregulatory requirement to perform TEM tests of settled dusts and solidmaterials under certain conditions

41

Region 2 withheld testing results for its own building in response to FOIA request 42

CONCLUSIONS

43

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ASBESTOS IN AIR

Region 2 falsely claims 70 structures/square millimeter is “AHERA standard”

The EPA website relating to the WTC disaster, pages maintained by EPA Region 2,repeatedly claim that there is an air standard under the Asbestos Hazard EmergencyResponse Act (AHERA), and that this standard for asbestos is “70 structures persquare millimeter”:

The samples are evaluated against a variety of benchmarks, standards and

guidelines established to protect public health under various conditions. ... EPA

analyzed 34 samples taken in and around ground zero from October 8 to October

9. All samples showed results less than 70 structures per millimeter squared,

which is the Asbestos Hazard Emergency Response Act (AHERA) standard for

allowing children to re-enter school buildings after asbestos removal activities.

[U.S. Environmental Protection Agency (EPA) Daily Summary, Wednesday, October 10, 2001. Posted at http://www.epa.gov/epahome/wtc/ or www.NYenviroLAW.org ]

The following is a statement that appears in most of Region 2's daily air monitoringsummaries:

In evaluating data from the World Trade Center and the surrounding areas, EPA

is using a protective standard under AHERA, the Asbestos Hazard Emergency

Response Act, to evaluate the risk from asbestos in the outdoor and indoor air.

This is a very stringent standard that is used to determine whether children may

re-enter a school building after asbestos has been removed or abated. It is based

on assumptions of long-term exposure. EPA has chosen to use this standard,

because it is the most stringent and protective, even though it is unlikely that the

public will be exposed to asbestos from the World Trade Center site for extended

periods of time.

To determine asbestos levels, air filters are collected from monitoring equipment

through which air in the school building has passed and viewed through a

microscope. The number of structures – material that has asbestos fibers on or in

it – is then counted. The measurements must be 70 or fewer structures per

square m illimeter before children are allowed inside.

[EPA Response to September 11, Benchmarks, Standards and Guidelines Established to ProtectPublic Health, posted at http://www.epa.gov/epahome/wtc/activities.htm ]

Regional Counsel for EPA’s Region 2 made the following assertions:

EPA has two sets of regulations that deal with asbestos ... neither set of

regulations is directly applicable to the conditions in the wake of the WTC disaster

... The first set of asbestos-related regulations are part of the National Emission

Standards for Hazardous Air Pollutants (NESHAPs) ... pursuant to ... the Clean

Air Act ... The second set of regulations are those promulgated by EPA pursuant

to the Asbestos Hazard Emergency Response Act (AHERA) ... The AHERA

regulations also include a “c learance” standard for inside air in school buildings to

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be used after asbestos abatement work has been completed, in order to ensure

that the space is safe for re-entry by children, teachers and other employees. ...

EPA began taking ambient air samples ... Once again, the key question ... to what

reference standard the test results would be compared in order to determine

whether the air was “safe.” ... EPA has not promulgated an outdoor am bient air

quality standard for asbestos; nor has any other regulatory agency done so, for

that matter. The only standard for asbestos in air that EPA has promulgated is

found in the AHERA regulations referenced above. These rules include what is

commonly called a clearance test ... The specified AHERA clearance test

procedure includes, inter alia , a step in which air monitored in the affected space

is compared with the specified “background” level of 70 structures per square

millimeter (70 s/mm 2).

[Mugdan, Walter E., Esq. (January 25, 2002) Environmental law issues raised by terrorist events in2001. Speech before the NY Bar Association. Posted at www.NYenviroLAW.org ]

In a document drafted by Region 2 legal counsel, the following statement is made:

It was developed to determine whether school buildings where asbestos was

used are safe. Under this test, an air monitor pumps room air through a special

filter for a specified amount of time. Then the number of asbestos “structures,” or

fibers, on a square millimeter of the filter are counted. If there are fewer than 70

such structures, the air is judged to be acceptable. EPA has used this same

school-based standard to evaluate the safety of outside air in downtown

Manhattan.

[US EPA Region 2 (November 27, 2001) Draft. Attorney work product, attorney-clientcommunication. Made available by EPA Region 2 in response to a January 3, 2002 Freedom ofInformation Act request by the New York Environmental Law and Justice Project. Posted athttp://www.nyenvirolaw.org/PDF/EPA-FOIL-scannedOn-2-27-02.pdf ]

The New York City Departments of Health and Environmental Protection also claimthat the 70 s/mm2 level is a safe level:

PCM sample results are compared to the clearance/re-occupancy standard for

indoor air following an asbestos abatement project. This standard is 0.01 fibers

per cubic centimeter. Samples found to be above this standard are re-examined

using TEM (Transmission Electron Microscopy). The TEM analysis identifies the

type of particles collected. TEM results are compared to the clearance/re-

occupancy standard for indoor air in schools after an asbestos abatement project.

This standard is 70 structures of asbestos per square m illimeter. The standard

was established pursuant to the federal “Asbestos Hazard and Emergency

Response Act”, usually known as AHERA.

[Testimony of Thomas R. Fireden, M.D., M.P.H., Commissioner, New York City Department ofHealth and Joel A. Miele Sr., P.E., Commissioner, New York City Department of EnvironmentalProtection before the U.S. Senate Committee on Environment and Public Works, Subcommittee onClean Air, Wetlands, and Climate Change, February 11, 2002. Posted at www.NYenviroLAW.org ]

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70 s/mm2 is not the AHERA standard, as explained in the AHERA regulationsthemselves

– It is a LABORATORY BACKGROUND, the same as a DETECTION LIMITor lab SENSITIVITY

– A “LABORATORY BACKGROUND” is like going to a salad bar with acontainer for the salad.

– The scale at the cashiers is good for weighing the large amount ofsalad, because the weight of the container is relatively small.

– But if you went to the cashiers with an empty container and askedthat it be weighed for traces of cyanide, you would be out of luck,since the cyanide would weigh much less than the container.

– The container for the salad is like a “LABORATORY BACKGROUND”

In their naivete of analytical testing methods, Region 2 is under the mistaken beliefthat 70 s/mm2 is the natural, typical background level of asbestos in normal air. Region 2 states this explicitly, seen in the excerpts in the preceding section.

EPA Region 2 has unfortunately completely misinterpreted the regulations at Title40 of the Code of Federal Regulations, which describe in detail the meaning of the 70s/mm2 level for the AHERA TEM clearance test.

It is only the detection limit of a particular air test for asbestos, or the sensitivity ofthe method, a LABORATORY BACKGROUND. The word “background” refers tothe fact that one particular filter material through which air is drawn is alreadycontaminated with asbestos.

Analysts have the choice of using either polycarbonate filters or methyl cellulosefilters. Polycarbonate filters have asbestos fibers in the filter material itself. TheAHERA clearance test was designed to allow for the presence of the asbestos in thepolycarbonate filters, so it set the level at 70 s/mm2 to allow for this contamination. Typically, the methyl cellulose filters are used today because it is understood thatusing polycarbonate filters would result in finding some asbestos as part of the labbackground. Using methyl cellulose filters gives a “free pass” of 70 s/mm2.

Extensive excerpts are given of the AHERA regulations, which make it very clearthat 70 s/mm2 only refers to the detection limit or sensitivity or laboratorybackground of the AHERA TEM clearance test. Nowhere in the AHERAregulations is the word “standard” or “safe” used in conjunction with 70 s/m2. Infact, in the next section, it can be seen that the same AHERA regulations state thatthere is NO safe exposure to asbestos.

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[AHERA] 40 CFR Part 763 Subpart E - Asbestos-Containing Materials in Schools

§763.90 Response actions. (a) The local education agency shall select and

implement in a timely manner the appropriate response actions in this section

consistent with the assessm ent conducted in §763.88. ...

(i) Completion of response actions.

...

(3) Except as prov ided in paragraphs (i)(4), and (i)(5), of this section, an action to

remove, encapsulate, or enclose ACBM shall be considered complete when the

average concentration of asbestos of five air samples collected within the affected

functional space and analyzed by the TEM method in appendix A of this subpart

E, is not statistically significantly different, as determined by the Z-test calculation

found in appendix A of this subpart E, from the average asbestos concentration of

five air samples collected at the same time outside the affected functional space

and analyzed in the same manner, and the average asbestos concentration of the

three field blanks described in appendix A of this subpart E is below the filter

background level, as defined in appendix A of this subpart E, of 70 structures per

square millimeter (70 s/mm2).

(4) An action may also be considered complete if the volume of air drawn for each

of the five samples collected within the affected functional space is equal to or

greater than 1,199 L of air for a 25 mm filter or equal to or greater than 2,799 L of

air for a 37 mm filter, and the average concentration of asbestos as analyzed by

the TEM method in appendix A of this subpart E, for the five air samples does not

exceed the filter background level, as defined in appendix A, of 70 structures per

square millimeter (70 s/mm2). ...

...40 CFR §763, Appendix A.

II. Mandatory Transmission Electron M icroscopy Method A.

Definitions of Terms

...

13. Filter background level -- The concentration of structures per square

millimeter of filter that is considered indistinguishable from the concentration

measured on a blank (filters through which no air has been drawn). For this

method the filter background level is defined as 70 structures/mm 2.

...A response action is determined to be completed by TEM when the abatement

area has been cleaned and the airborne asbestos concentration inside the

abatement area is no higher than concentrations at locations outside the

abatement area. ... After the abatement area has passed a thorough visual

inspection, and before the outer containment barrier is removed, a minimum of

five air samples inside the abatement area and a minimum of five air samples

outside the abatement area must be collected. Hence, the response action is

determined to be completed when the average airborne asbestos concentration

measured inside the abatement area is not statistically different from the average

airborne asbestos concentration measured outside the abatement area.

...

When volumes greater than or equal to 1,199 L for a 25 mm filter and 2,799 L for

a 37 mm filter have been collected and the average number of asbestos

structures on samples inside the abatement area is no greater than 70 s/mm2 of

filter, the response action may be considered complete without comparing the

inside samples to the outside samples. EPA is permitting this initial screening test

to save analysis costs in situations where the airborne asbestos concentration is

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sufficiently low so that it cannot be distinguished from the filter

contamination/background leve l (fibers deposited on the filter that are unre lated to

the air being sampled).

...

The initial screening test is expressed in structures per square millimeter of filter

because filter background levels come from sources other than the air being

sampled and cannot be meaningfully expressed as a concentration per cubic

centimeter of air . The value of 70 s/mm2 is based on the experience of the panel

of microscopists who consider one structure in 10 grid openings (each grid

opening with an area of 0.0057 mm2) to be comparable with

contamination/background levels of blank filters. The decision is based, in part,

on Poisson statistics which indicate that four structures must be counted on a

filter before the fiber count is statistically distinguishable from the count for one

structure.

[emphasis added]

[The Code of Federal Regulations are available from most larger libraries, all law libraries, and alsoonline at: http://www.access.gpo.gov/nara/cfr/index.html, or for EPA-only (faster) athttp://www.epa.gov/epahome/cfr40.htm ]

It is true that EPA Region 2's air tests in Manhattan had greater sensitivity than 70s/mm2. That is because they used methyl cellulose filters, which do not have theasbestos contamination problem.

Region 2 mistakes 70 s/mm2 as a normal air “background” level

Regional Counsel for EPA’s Region 2 explained his belief of the meaning of 70s/mm2. He believes that it is a normal air background, and when the AHERAclearance test is run, the results of the test are COMPARED WITH the 70 s/mm2 “background” level:

These rules include what is commonly called a clearance test ... The specified

AHERA clearance test procedure includes, inter alia , a step in which air

monitored in the affected space is compared with the specified “background” level

of 70 structures per square millimeter (70 s/mm 2).


This is wrong. There is no comparison going on at all with the results of the test andany purported background level of 70 s/mm2. Instead, the AHERA TEM clearancetest requires a comparison with the actual background air, which must be done bysampling the air outside and actually testing it, according to the procedures of theAHERA test.

As seen above, the word “background” in the regulations refers to a laboratorybackground from unavoidable asbestos contamination of the filter through which airis drawn.

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Later, the actual typical background levels of asbestos in air will be given, and thereasons why EPA has regulations that would allow the air in schools to “pass” withsuch abnormally high and dangerous asbestos results of 70 s/mm2. (You have to use“aggressive sampling” with a one-horsepower leaf blower inside an enclosed space,which makes asbestos concentrations in air abnormally high.)

The actual AHERA standard for asbestos in air is ZERO

– The AHERA regulations explicitly state:

“there are no safe exposures to asbestos”

The AHERA regulations actually do give a standard for asbestos in air, namelyZERO. The AHERA regulations are explicit, saying there are no safe exposures toasbestos:

40 CFR § 763. Appendix B to Subpart E to Part 763 -- Asbestos Model

Accreditation Plan

...

1. WORKERS [same language included for supervisors and all others involved in

abatement] ...

...

(b) Potential health effects related to asbestos exposure. The nature of asbestos-

related diseases; routes of exposure; dose-response relationships and the lack of

a safe exposure level; the synergistic effect between cigarette smoking and

asbestos exposure; the latency periods for asbestos-related diseases; a

discussion of the relationship of asbestos exposure to asbestosis, lung cancer,

mesothelioma, and cancers of other organs.

[emphasis added]

[The Code of Federal Regulations are available from most larger libraries, all law libraries, and alsoonline at: http://www.access.gpo.gov/nara/cfr/index.html, or for EPA regulations only (faster) athttp://www.epa.gov/epahome/cfr40.htm ]

The Asbestos School Hazard Detection and Control Act states that the onlystandard or safe exposure level to asbestos is ZERO

Asbestos School Hazard Detection and Contro l Act

...

§ 3601. Congressional statement of findings and purposes (a) The Congress

finds that-- (1) exposure to asbestos fibers has been identified over a long period

of time and by reputable medical and scientific evidence as significantly

increasing the incidence of cancer and other severe or fatal diseases, such as

asbestosis; (2) medical evidence has suggested that children may be particularly

vulnerable to environmentally induced cancers; (3) medical science has not

established any minimum level of exposure to asbestos fibers which is

considered to be safe to individuals exposed to the fibers;

[June 14, 1980, P.L. 96-270, § 1, 94 Stat. 487, 20 USCS § 3601 (2001). Available athttp://www.findlaw.com/ or http://uscode.house.gov/ ]

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There are no other EPA ambient air standards other than ZERO asbestos

Furthermore, there are no other EPA standards for asbestos in air, such as anambient air quality standard, other than the “zero” level or “no exposure” level. EPAguidance states the following:

Q: What is the acceptable exposure/ambient air standard for asbestos?

A: EPA does not specify an acceptable exposure/ambient air standard.

[US EPA (1990) Common Questions on the Asbestos NESHAP. EPA Publication No. 340/1-90-021. Available online at: http://www.epa.gov/ncepihom/nepishom/ ]

Even EPA Region 2 agrees that there are no ambient air standards for asbestos. Walter Mugdan, Regional Counsel, stated:

EPA has not promulgated an outdoor ambient air quality standard for asbestos;

nor has any other regulatory agency done so, for that matter.


EPA acceptable risk levels for comparison to the 70 s/mm2 – AHERA level

Although there are no standards for asbestos in air, there are levels or concentrationsthat are cleanup goals in the event of asbestos contamination. EPA does not considerany exposure to a carcinogen to be acceptable.

In the event of contamination, it is the policy and goal of EPA to clean up theenvironment to protect citizens from any increased risk of cancer at the 1 in a millioncancer risk level for a lifetime exposure. This is called the “10-6 risk level,” or the“ten to the minus six risk level.”

Exposing citizens after a cleanup to anything less than the 10-6 risk level is neverdone by EPA without due public process with opportunity for public input andreview. EPA would never even propose deciding that citizens be exposed to higherrisk levels than one-in-a-million without extensive environmental monitoring,considering all feasible options, considering whether or not there are relatively fewcitizens that would be exposed, etc. Regardless, in all cases, action by EPA istriggered by any risk greater than 1 in 10,000.

The EPA risks for asbestos at different air concentrations are given in the tablebelow:

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AIR CONCENTRATION OF ASBESTOS

“PCM equivalent” fraction, fibers over 5 micrometers long

CANCER RISK LEVEL, LIFETIME

number of cancers risk level

concentration fibers per

milliliter

expressed as exponent

0.000004 f/mL 4E-6 f/mL 1 in 1,000,000 10-6

(= E-6)

0.00004 f/mL 4E-5 f/mL 1 in 100,000 10-5

(= E-5)

0.0004 f/mL 4E-4 f/mL 1 in 10,000 10-4

(= E-4)

Source: U.S. EPA (August, 2001) Integrated Risk Management Information System (IRIS) Summary for Asbestos,posted at http://www.epa.gov/iris/subst/0371.htm

Explanation of “PCM equivalent” asbestos fibers

The “PCM fraction” or “PCM equivalents” are those asbestos fibers at least 5micrometers (:m) long, with a width greater than 0.25 :m, and an aspect ratiogreater than or equal to 3 to 1. These are the fibers that are small enough to beinhaled deeply into the lungs (“respirable size”), but also large enough to be retainedby the lungs. It is believed that fibers shorter than 5 :m can be engulfed bymacrophages and carried out of the lungs.

EPA policy currently uses this “PCM-equivalent” theory, which means that asbestosfibers smaller than 5 :m in length are eliminated from the risk assessment, since theyare believed not to contribute to cancer. Not all scientist agree with this theory, thatthe smallest of the small asbestos fibers are harmless.

Because the established EPA risk level is expressed in PCM equivalents, and becauseother asbestos in air data is typically expressed as PCM equivalents, it is useful toconvert units from “total asbestos fibers” to “PCM equivalent fibers.” This makescomparisons of data easier.

70 s/mm2 – AHERA is 2375 to 4750 times higher than EPA’s 10 -6 risk level

The table below compares the AHERA 70 structures per square millimeter (70s/mm2) level with the EPA one-in-a-million risk level (10-6 risk level; ten to theminus six risk level).

Since the EPA one-in-a-million cancer risk level for asbestos is 0.000004 fibers permilliliter (PCM), the AHERA level is 2375 to 4750 times higher than the EPAcancer risk level. In other words, the 70 s/mm2 level would lead to 2.4 to 4.8 excesscancers per one thousand. This is unacceptable.

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The 70 s/mm2 level is converted to “PCM equivalents” to make this comparisonpossible. See section above for an explanation of PCM equivalents. The theoreticallevel of PCM equivalents for 70 s/mm2 is given in the AHERA regulations at 40 CFR§ 763 App. A. The Region 2 air monitoring data also gives real-world PCM-equivalents to 70 s/mm2. For Manhattan asbestos air tests, the PCM equivalentsrange from 0.0095 to 0.019 f/mL (PCM).

70 structures per square millimeter (s/mm2) COMPARISON WITH CANCER RISKS

AHERA TEM clearance test levels, different units. All numbers are roughly equal

THEORETICAL EQUIVALENTS TO 70 s/mm2 from 40 CFR § 763 App. A

= 0.01 fibers per milliliter (f/mL) (PCM)

= 0.01 fibers per cubic centimeter (f/cc) (PCM)

= 2500 times the EPA one per million cancer risk

= 2.5 excess cancers per one thousand

fibers over 5 :m, “PCM-equivalent”

= 0.02 structures per milliliter (s/mL)

= 0.02 structures per cubic centimeter (s/cc)

[all fibers plus bundles]

EPA REGION 2 EQUIVALENTS TO 70 s/mm2, if 50% of fibers are “PCM equivalent”







[all fibers plus bundles, not just PCM-equivalent fiberswhich are over 5 :m in length]]

EPA REGION 2 EQUIVALENTS TO 70 s/mm2, if 25% of fibers are “PCM equivalent”







[all fibers plus bundles, not just PCM-equivalent fiberswhich are over 5 :m in length]]

The following table gives some of Region 2's air measurements for Manhattan thatwere significantly higher than the detection limit, along with the fraction of fibersthat are “PCM equivalent.” A conservative estimate would be that 25% to 50% ofthe fibers are PCM equivalent. Since the Region 2 data lacked the necessarysensitivity, there is no basis for concluding that the PCM fraction was any lower.

AVAILABLE AIR ASBESTOS LEVELS SIGNIFICANTLY ABOVE DETECTION LIMITS

EPA REGION 2 DATA, MANHATTAN

concentration in

fibers or structures permilliliter (f-s/mL)

concentration in

structures per squaremillimeter (s/mm2)

fibers lessthan 5 :m

fibersgreaterthan 5 :m(PCM)

date

0.0143 24 3 0 10/1

0.0095 17.78 2 0 9/28

0.0171 32 4 0 9/23

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0.0128 24 3 0 9/23

0.0095 17.78 1 1 9/25 a

0.019 35.56 2 2

0.033 62.22 8 1

0.0074 17.78 1 1

0.0095 17.78 1 1 9/25

0.0190 35.56 4 0

0.0476 89.89 7 3

0.0143 26.67 2 1 9/29 a

0.0095 17.78 2 0

0.038 71.11 6 2 10/2

0.045 88.88 8 4

0.0143 26.67 2 1

Source: EPA air monitoring laboratory sheets. Made available in response to a Freedom ofInformation Act request from the New York Environmental Law and Justice Project. Posted atwww.NYenviroLAW.org Note that EPA only posted incomplete data on its web site, giving onlyasbestos concentrations expressed as structures per square millimeter, which is not helpful forscientists attempting to quantify risks.

70 s/mm2 – AHERA is higher than levels found at the Libby Superfund site

The 70 s/mm2 AHERA TEM clearance level is higher than the air levels found insidehomes at the Libby, Montana Superfund site, the air levels that caused Libby tobecome a Superfund site.

The following table gives the air levels inside residences that resulted in thedesignation of Libby as a Superfund site. Because most of the inside air samples hadnon-detectable asbestos, it was necessary to estimate the detection limit of the testsperformed at Libby. This estimate was from 0.0001 to 0.0003 f/mL (PCM).

The average level of asbestos inside residences in Libby is 0.0024 f/mL (PCM).

The AHERA 70 s/mm2 level is equivalent to 0.0095 to 0.019 f/mL (PCM). (Seepreceding section.)

The AHERA 70 s/mm2 level is 4 to 8 times higher than the air inside residences atLibby.

- 16 -

COMPARISON OF AHERA 70 s/mm2 LEVEL WITH LIBBY SUPERFUND SITE

70 s/mm2 equivalent

low range, Region 2 data

0.0095 f/mL (PCM) 4 times higher than Libby

70 s/mm2 equivalent

high range, Region 2 data

0.019 f/mL (PCM) 8 times higher than Libby

AIR LEVELS INSIDE RESIDENCES IN LIBBY, MONTANA

Average concentration of

asbestos in air inside Libby

residences**

0.0024 f/mL (PCM) 0.0023 - 0.0024

f/mL (PCM), range

Air levels during routine

activities, samples where

asbestos detected.

0.009 f/mL (PCM) 0.003 - 0.036

f/mL (PCM), range

4/10 samples

with detectable

asbestos

Air levels during active

cleaning, samples where

asbestos detected.

0.008 f/mL (PCM) 0.007 - 0.010

f/mL (PCM), range

3/17 samples

with detectable

asbestos

Non-detect samples, both

from tests done while routine

and active cleaning taking

place. Estimated detection

limit

0.0002 f/mL (PCM) 0.0001 - 0.0003

f/mL (PCM), range

20/27 samples

with NON-

detectable

asbestos. 27

total samples

(10 + 17)

** Calculated as follows: (0.0002)(20/27) + (0.008)(3/27) + (0.009)(4/27) = 0.00237

Source: Table, page 10 of risk assessment, Weis, C. P., Senior Toxicologist/Science Support Coordinator, U.S. EPA(December 20, 2001) Excerpts from: Amphibole mineral fibers in source materials in residential and commercial areasof Libby pose an imminent and substantial endangerment to public health. Posted at: http://www.epa.gov/region8/superfund/libby/riskassess.html

- 17 -

If asbestos were present at Region 2's detection limits, levels would be higherthan EPA’s 10 -6 risk level

– A sensitive laboratory method is like looking at something with amicroscope, or even an electron microscope

– A cruder or less sensitive method is like looking for something witha hand-held magnifying glass.

– A low detection limit is the same thing as high sensitivity.

A much lower amount can be detected, like a microscopic grain ofsand. The microscopic grain of sand is the “detection limit.”

– A high detection limit means low sensitivity. The detection limitwould be larger, like only being able to detect a piece of gravel. The piece of gravel would be the “high detection limit.”

The detection limits of the Region 2 air tests are too high, meaning that the tests didnot have enough sensitivity to find asbestos at the levels that could harm people.

It is true that Region 2 was able to detect asbestos at levels lower than 70 s/mm2, theAHERA test level. Many of Region 2's tests had no detectable asbestos at all. However, they were still not sensitive enough, and there are many ways of makingthe tests more sensitive.

The sensitivities, or detection limits, for the air tests Region 2 performed after theWTC collapse were only 0.0043 to 0.0096 structures per milliliter (s/mL), for allfibers and bundles. This corresponds to 0.0011 to 0.0043 f/mL (PCM). Thisassumes that either 25% or 50% of the fibers are PCM-equivalent, a conservativeestimate, explained in an earlier section.

If asbestos were present at the detection limits or slightly below it, it wouldcorrespond to excessive cancer risks from nearly 3 per 10,000 up to 1 per 1000. Seethe following table.

CANCER RISKS AT REGION 2 DETECTION LIMITS

Cancer risk level Air concentration for “PCM-equivalent” fibers

1 per million 0.000004 f/mL (PCM) EPA’s Integrated Risk Information

System

2.75 cancers per

10,000

0.0011 f/mL (PCM) estimated 25% PCM-equivalents for

lowest detection limit for Region 2 tests

1 cancer per 1000 0.0043 f/mL (PCM) estimated 50% PCM-equivalents for

highest detection limit for Region 2 tests

- 18 -

The following table gives some typical detection limits for the Region 2 tests, alongwith the estimated amount that would be “PCM-equivalent.”

DETECTION LIMITS –- LOWEST LEVELS OF ASBESTOS IN AIR THAT REGION 2 COULD DETECT

Estimated “PCM equivalent” fibers, those over 5 :min length – f/mL (PCM)

structures per milliliter(s/mL)

structures per squaremillimeter (s/mm2)

date

50% PCM fractionassumption

25% PCM fractionassumption

all fibers and bundles(“structures”)

all fibers and bundles(“structures”)

0.0024 0.0012 0.0048 8.89 9/24

0.0022 0.0011 0.0043 8.0 9/25

0.0031 0.0016 0.0062 7.75 9/29

0.0027 0.0013 0.0053 8.0 9/29

0.0043 0.0024 0.0096 8.0 9/29

0.0025 0.0012 0.0049 8.89 9/29

EPA air monitoring laboratory sheets. Made available in response to a Freedom of Information Act request from theNew York Environmental Law and Justice Project. Posted at www.NYenviroLAW.org Note that EPA only postedincomplete data on its own web site, giving only asbestos concentrations expressed as structures per squaremillimeter.

If asbestos were present at Region 2's detection limits, levels would be higherthan the Libby Superfund site

The detection limits of the Region 2 air tests are also higher than or comparable tothe air found inside homes at the Libby Superfund site. An earlier section showedthat if asbestos were present at the AHERA levels, it would be higher than in homesin Libby.

On other words, even if Region 2 found no asbestos, even testing inside residenceswith normal activities going on, it would not be able to say that the air was safer thanat Libby. See the table below.

COMPARISON OF REGION 2 DETECTION LIMITS WITH LIBBY SUPERFUND SITE

Higher Reg. 2 detection limits 0.0043 f/mL (PCM) almost 2 times higher than Libby

Lower Reg. 2 detection limits 0.0011 f/mL (PCM) about one-half that in Libby

AIR LEVELS INSIDE RESIDENCES IN LIBBY, MONTANA

Average concentration,

Libby residences

0.0024 f/mL (PCM) 0.0023 - 0.0024

f/mL (PCM), range

See table in earlier section for a calculation of the average residential air concentration of asbestos found in Libby.

In home asbestos levels are from Table, page 10 of risk assessment, Weis, C. P., Senior Toxicologist/ScienceSupport Coordinator, U.S. EPA (December 20, 2001) Excerpts from: Amphibole mineral fibers in source materials inresidential and commercial areas of Libby pose an imminent and substantial endangerment to public health. Postedat: http://www.epa.gov/region8/superfund/libby/riskassess.html

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Typical background air levels are lower than Region 2's detection limits

The typical concentrations of asbestos in air are much, much lower than Region 2'stesting sensitivity (detection limits). The following table gives typical indoor andoutdoor air concentrations from the Agency for Toxic Substances and DiseaseControl (ATSDR) of the Centers for Disease Control.

Region 2's detection limits are 550 to 2150 times higher than typical background airlevels for asbestos. Thus, we have no idea at this time whether the air in New YorkCity has returned to normal.

ATSDR TYPICAL AIR LEVELS COMPARED TO REGION 2 DETECTION LIMITS

Region 2 detection limits are 550 to 2150 times higher than typical air levels

0.0011 to 0.0043 f/mL (PCM) range of detection limits for Region 2 tests

0.000002 f/mL (PCM) typical outside air, urban and rural (background)

0.000003 f/mL (PCM) typical inside air (background)

Source: Table 5-2, ATSDR (2000) Toxicological Profile for Asbestos, Centers for Disease Control, ATSDR. Availableby calling 1-888-42-ATSDR. Currently, only the final draft version is posted atwww.atsdr.cdc.gov/toxprofiles/tp61.html ]

Note that the concentrations are “PCM equivalents.” This means that only thefraction of asbestos that is over 5 micrometers long is included. If the total level ofasbestos were given, it would be higher.

Urban air usually contains higher levels of asbestos just because of general pollutionfrom brake linings and other sources. However, the ATSDR did not develop anyspecific overall estimate for urban air in particular. A few individual studies cited bythe ATSDR generally showed that urban air contains 10 times more asbestos thanrural air. The table above gives an average value for both urban and rural air.

These typical air concentrations represent the consensus of the ATSDR peer reviewprocess from evaluating many studies on background air concentrations by differentresearchers. Different scientist may have favorite studies that they like to cite forbackground levels of asbestos in air. However, the ATSDR conclusions about typicalbackground levels must be referred to unless there is statistically significant data froma particular site before and after a contamination event. We do not have statisticallysignificant air monitoring data at these low concentrations for many differentlocations in New York City prior to the collapse of the WTC.

- 20 -

70 s/mm2 – AHERA must be used in combination with a leaf blower(aggressive testing) in an enclosed space to be relevant to predicting risks

– The law (through implementing regulations) requires thiscombination

– You can’t have one without the others

The 70 s/square millimeter level must always be coupled with the use of a one-horsepower or greater leaf blower in an enclosed space, following a certifiedprofessional abatement, and other requirements. YOU CAN’T HAVE ONEWITHOUT THE OTHER REQUIREMENTS.

The regulations are explicit about aggressive testing:

40 CFR Part 763 Subpart E - Asbestos-Containing Materials in Schools

...

(1) At the conclusion of any action to remove, encapsulate, or enclose ACBM

[asbestos containing building materials] ... A person designated by the local

education agency shall collect air samples using aggressive sampling as

described in appendix A ...

...

Appendix A ... The following appendix contains three units. The first unit is the

mandatory transmission electron microscopy (TEM) method which all laboratories

must follow ...

d. After the area has passed a thorough visual inspection, use aggressive

sampling conditions to dislodge any remaining dust.

...

iii. Prior to air monitor ing, floors, ceiling and walls shall be swept with the exhaust

of a minimum one (1) horsepower leaf blower.

...

iv. Stationary fans are placed in locations which will not interfere with air

monitoring equipment. Fan air is directed toward the ceiling. One fan shall be

used for each 10,000 ft 3 of worksite.

[emphasis added]

[The Code of Federal Regulations are available from most larger libraries, all law libraries, and alsoonline at: http://www.access.gpo.gov/nara/cfr/index.html, or for EPA-regulations only (faster) athttp://www.epa.gov/epahome/cfr40.htm ]

Reasons why EPA and laboratories misuse the term “AHERA test”

EPA, laboratories, and contractors usually misuse the term “AHERA test.” Thereare several reasons for this.

First, the laboratory who receives the sample does not have any idea whether or not

- 21 -

the air sample was taken using the full AHERA protocols. The lab just looks at theform that the client filled out, and must assume that the air sampling followed theAHERA sampling protocols involving aggressive leaf blower testing followed by afan, with the right amount of air being pumped through the filter, an enclosed space,after abatement, etc. The lab does its part only, following the AHERA countingprotocols for classifying the different lengths and sizes of asbestos fibers and otherrequirements. The lab then generates a sheet saying “AHERA method” or somesuch equivalent statement.

When EPA or others look at the lab sheet, their belief that the whole testingprocedure was actually according to the full AHERA protocols is reinforced.

There is another reason that EPA and others are confused about what constitutes agenuine AHERA asbestos test. This is because the 1985 version of the Purple Bookis still being distributed by EPA. The Purple Book only states that the aggressivetesting method is “recommended.” (US EPA (1985) Guidance for ControllingAsbestos-Containing Materials in Buildings, Office of Pesticides and ToxicSubstances, Publication No. EPA 560/5-85-024.)

However, the aggressive method became mandatory in 1987, and was formallyadded to the AHERA regulations in the Code of Federal Regulations. (52 FederalRegister 41826, October 30, 1987; 40 CFR §763 App. A.)

But the Purple Book has never been updated to reflect the change to the mandatoryaggressive testing. Most asbestos abatement professionals and EPA staff onlyconsult the Purple Book. They believe that aggressive testing is only recommended. This is unfortunate.

EPA developed the “aggressive leaf-blower/short term air test” to save time

– Previously, EPA required air sampling for at least 8 hours or more

The reason that EPA developed the AHERA TEM clearance test was to save timeand costs. Previously, it required sampling the air for at least 8 hours, under “workday” conditions of human activity if possible, so that enough air would pass throughthe filter to collect enough asbestos fibers to detect:

Sampling for asbestos consists of collecting fibers by drawing air through a filter

at a known rate. Usually sampling equipment is placed at a fixed location for a

certain period of time. But this approach may fail to detect the presence of fibers.

For example, if sampling is conducted for a short time during a quiet period (i.e.,

when air movement is limited), many fibers will settle out of the air onto the floor

and other surfaces and may not be captured on the filter. Under these conditions,

air measurements could show little or no asbestos.

Previously, EPA recommended sampling for at least eight hours to cover various

- 22 -

air circulation conditions and thus increase the likelihood of capturing asbestos

fibers if they are present. A quicker and more effective way to accomplish this,

however, is to circulate the air artific ially so that the fibers remain airborne during

sampling.

This “aggressive sampling” is recomm ended for the post-abatement air test.

[Actually, the regulations at 40 CFR 763 Appendix A require it.] Recommended

methods for conducting aggressive sampling are presented in Appendix M. They

use forced-air equipment such as a leaf blower to dislodge free fibers then slow-

speed fans to keep the fibers suspended during sampling.

[emphasis added]

[US EPA (1985) Guidance for Controlling Asbestos-Containing Materials in Buildings, Office ofPesticides and Toxic Substances, Publication No. EPA 560/5-85-024, Section 6.4.2.1. The“PURPLE BOOK” Available at no charge from: National Service Center for EnvironmentalPublications (NSCEP), PO Box 42419 Cincinnati, OH 45242, 1-800-490-9198 or (513) 489-8190,Fax: (513) 489-8695, http://www.epa.gov/ncepihom/ ]

EPA found that using a leaf blower increased asbestos concentrations in air bythousands of times. It was a “worse case” scenario.

One study showed that using a leaf blower increased airborne asbestos concentrationsover 100 times that caused by even vigorous broom cleaning. (Millette, J., et al.Applications of the ASTM Asbestos in Dust Method D5755. In: Advances inEnvironmental Measurement Methods for Asbestos, ASTM Special TechnicalPublication 1342.) And vigorous broom cleaning has been demonstrated to increaseasbestos levels hundreds or thousands of times over that of passive conditions whichdo not disturb dusts.

EPA did not test air indoors, or air where children actually breathe

EPA only tested air outdoors after the WTC disaster, and did nothing to test indoors. The New York City Department of Health, who claimed to have responsibility forthe indoor environment, did not test air indoors, but left it up to the building ownersand occupants.

EPA Headquarters has acknowledged now that its outdoor testing was irrelevant toshowing asbestos levels indoors. On February 12, EPA Administrator ChristineWhitman wrote to Senator Hilary Clinton, stating:

Of course, the environmental issues of concern to those who live, work, and visit

Lower Manhattan are not limited to outdoor air quality issues. People are also

justly concerned about indoor environmental quality. The enormous amount of

particulates released by the collapse of the World Trade Center towers

permeated many of the surrounding buildings, including apartments, offices, and

other indoor spaces throughout the area surrounding Ground Zero.

- 23 -

As you may recall, in the days immediately following September 11th, the City of

New York assumed responsibility for indoor environmental quality. ... Despite the

City’s best efforts to address indoor environmental issues, it is apparent that

many concerns and challenges remain. I am committed to providing additional

assistance to the City and its residents and stand ready to do so. In addition, as

you suggested yesterday, I will be working with our local, state, and federal

partners to establish a Task Force on Indoor Air in Lower Manhattan, so that we

can move as quickly as possible to address the remaining concerns we all share.

Even if testing is done at the low levels associated with asbestos health effects(0.000004 f/mL (PCM)), there must be human activities or simulated humanactivities in the same room at the same time of the testing. When testing airborneasbestos levels inside homes in Libby, Montana, the Superfund site, EPA had bothstationary air monitors and monitors worn by residents going about their normal dailyactivities. The monitors worn by the people picked up higher concentrations ofasbestos than the stationary monitors in the same rooms sampling air at the sametimes. See the risk assessment for the Libby site for a description, posted at:http://www.epa.gov/region8/superfund/libby/riskassess.html .

Another study showed that asbestos concentrations in air can be undetectable orbelow 0.005 s/mL when there are no activities in the room to stir up dusts, but ashigh as 0.09 to 54 s/mL when activities such as vacuuming, broom sweeping, gymactivities, etc. are going on in the room to disturb the dusts. (Millette, J. R., andHays, S. M. (1994), Chapter 8, Resuspension of Settled Dust, in: Settled AsbestosDust Sampling and Analysis, page 63, Table 2, Lewis Publishers, ISBN 0-87371-948-4.)

To date, Region 2's tests of outdoor air are irrelevant to determining theconcentration of asbestos in indoor air, because outdoor air becomes diluted withother air. Indoors, however, asbestos dust in a confined space will result in muchhigher asbestos concentrations.

Furthermore, the recent tests on indoor air performed by the Agency for ToxicSubstances and Disease Registry (ATSDR), part of the Centers for Disease Control,at the request of the New York City Department of Health (NYC DOH) are alsoinadequate, in all probability. The NYC DOH, while not releasing the actualresults, claims that the ATSDR tests showed no elevated air levels. We can assumethat the NYC DOH is contending that the 70 s/mm2 level, or 0.01 f/mL (PCM) iswhat is safe, because testimony of Thomas Frieden, Commissioner of the NYC DOHon February 11, 2002 made these assertions.

An earlier section above shows that this 70 s/mm2 level is higher than even found atthe Libby, Montana Superfund site.

The following table gives the legal/legitimate and illegal/illegitimate ways todetermine whether asbestos levels in air in homes, offices, or schools meets EPAstandards:

- 24 -

LEGAL/LEGITIMATE

AIRBORNE ASBESTOS TESTING METHODS

ILLEGAL/ILLEGITIMATE

AIRBORNE ASBESTOS TESTING METHODS

0.000004 f/mL (PCM)

laboratory sensitivity(detection limit), the EPA10 -6 risk level

Conditions of actual orsimulated humanactivities, such as a childjumping on acontaminated couch orrolling around oncontaminated carpet

0.01 f/mL (PCM)

= 0.02 s/mL (all fibers)

= 70 structures per squaremillimeter

Testing for this level ONLYAFTER the followingconditions, as required by40 CFR 763:

1. Completion ofprofessional certifiedasbestos abatement

2. Suspension of dusts byusing one-horsepower leafblower followed by fansduring actual testing.

0.000004 f/mL (PCM)

laboratory sensitivity(detection limit), the EPA10 -6 risk level

Passive conditions, i.e., noactivities to disturb duststo cause them to beairborne.

0.01 f/mL (PCM)

= 0.02 s/mL (all fibers)

= 70 structures per squaremillimeter

This level under eitherpassive testing conditions(no human activity) oreven normal humanactivities

Chart of cancer risks associated with different asbestos test levels, standards,Region 2 detection limits, inside homes at Libby Superfund site, and typicalnormal background air levels

The following page is a chart showing different cancer risks associated with differentasbestos air levels. The different air levels include the AHERA test level of 70structures per millimeter squared, air levels found inside homes at the LibbySuperfund site, the lowest level that Region 2 could test for, and the Agency forToxic Substances and Disease Registry peer reviewed consensus findings for typicalbackground air both inside and outside.

ASBESTOS AIR CONCENTRATIONS AND RISKS

Excess CancerRisks, LifetimeExposure

Air Level - fibers permilliliter, PCMequivalentf/mL (PCM)

Air standards, levels actually found, detection limits, etc.

1 per 100 0.04 EPA’s Integrated Risk Information System (IRIS) cancer risk level

0.0095 - 0.019 AHERA level of 70 structures per square millimeter, converted to PCM-equivalentfibers per milliliter (25 to 50% of fibers estimated to be PCM equivalent). This isa lab background for a test using filters known to be contaminated withasbestos, not the AHERA standard.

1 per 1,000 0.004 EPA’s Integrated Risk Information System (IRIS) cancer risk level

0.0011 - 0.0043 Region 2's detection limits, converted to PCM equivalents (25 to 50% of fibersestimated to be PCM equivalent). THE LOWEST LEVEL THEY COULD FIND

0.0024 Libby Superfund site, average inside homes resulting in Superfund designation



1 per 1,000,000 0.000004 EPA’s Integrated Risk Information System (IRIS) cancer risk level

0.000003 inside air, Agency for Toxic Substances and Disease Registry, peer reviewedoverall value

0.000002 outside air, Agency for Toxic Substances and Disease Registry, peer reviewedoverall value

0 cancers 0 AHERA safe level standard, 40 CFR §763, Appendix C - Asbestos ModelAccreditation Plan

Asbestos School Hazard Detection and Control Act safe level

- 25 -

ASBESTOS IN SETTLED SURFACE DUSTS AND SOILS

EPA Region 2 claims that 1% is the safe level for asbestos in dusts lying onsurfaces or in soils

EPA Region 2 has repeatedly claimed only dusts from the WTC collapse containing1% or more asbestos should be treated as hazardous, strongly implying that 1% is thesafe level:

In Dust. If a substance contains 1% or more asbestos, it is considered to be an

"asbestos-containing material." There are federal regulations in place to ensure

the proper handling and disposal of asbestos-containing material. If a substance

contains less than 1% asbestos, these regulations do not apply.

EPA is using the 1% definition in evaluating dust samples from in and around

ground zero. The vast majority of the samples taken to date have levels of

asbestos below 1%. In fact, in an urban environment like New York City, we can

expect the presence of a low level of asbestos under normal circumstances

(these low everyday levels are called "background leve ls").

[EPA website on September 11 Response posted at http://www.epa.gov/epahome/wtc/activities.htm ]

Regional Counsel for EPA’s Region 2 made the following assertions:

EPA has two sets of regulations that deal with asbestos ... neither set of

regulations is directly applicable to the conditions in the wake of the WTC disaster

... The first set of asbestos-related regulations are part of the National Emission

Standards for Hazardous Air Pollutants (NESHAPs) ... pursuant to ... the Clean

Air Act ... The second set of regulations are those promulgated by EPA pursuant

to the Asbestos Hazard Emergency Response Act (AHERA) ...

Both sets of regulations include a definition and standard for “asbestos-containing

material.” ...

One of the first decisions that EPA had to make when sampling for asbestos in

the dust from the WTC collapse was what reference value to use when reporting

the data – in other words, at what concentration of asbestos in the bulk dust

samples would the Agency characterize the dust as containing asbestos in

quantities of significance? EPA elected to use the definition of ACM [asbestos

containing material] from the NESHAPs regulations – i.e., the 1% asbestos

content standard.


- 26 -

Under the EPA NESHAP, 1% asbestos is not considered a safe level

– 1% only applies when defining the asbestos-containing buildingmaterial itself

– Region 2 Counsel agrees that 1% is not related to health risks

– Region 2 Counsel states that 1% is only the detection limit of a crudemethod, PLM, that lacks sensitivity to test for lower levels

– Region 2 Counsel, however, fails to state that EPA policy requires amore sensitive method, TEM, for settled dusts and other solids

In guidance under the Clean Air Act asbestos NESHAP, the EPA clearly states thatthe 1% level is only to be used to determine whether a building material itselfcontains asbestos, and that 1% is not a safe level, or a “standard.” Under theNESHAP, any dusts or contamination resulting from the use of building materialscontaining asbestos, which are called emissions, are regulated at much, much lowerconcentrations of asbestos in the dusts themselves.

In April 1973, the US Environmental Protection Agency (EPA) issued the National

Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos (38 FR

8820). The NESHAP regulation governs the removal, demolition and disposal of

asbestos containing bulk waste. An asbestos-containing product, as stated by

the regulation was defined for the first time to be a product with greater than 1%

asbestos, by weight. The intent of the 1% limit was:

... to ban the use of materials which contain significant quantities of asbestos, but

to allow the use of materials which would (1) contain trace amounts of asbestos

which occur in numerous natural substances, and (2) include very small

quantities of asbestos (less than 1 percent) added to enhance the material’s

effectiveness. (38 FR 8821).

It most be clearly understood that the EPA NESHAP definition of 1% by weight

was not established to be a health-based standard.

[emphasis added]

[US EPA (April 18, 1989) Interim Asbestos NESHAP Enforcement Guidance - “Friable asbestos” 1%by Area of Volume vs. 1% by Weight. Office of Enforcement and Compliance Monitoring EPAPublication No. EPA 560/5-88-001. Available online at:http://es.epa.gov/oeca/ore/aed/comp/ecomp/e6.html ]

Region 2 Counsel agrees that the 1% level is not a safety standard, contradicting theother Region 2 claims. He states that this level only relates to the detection limit ofthe method that Region 2 chose to use in Lower Manhattan, the crude PLM method.

Note that the 1% standard is not necessarily health- or risk-based, but rather

keyed to the detection limits of the specified analytical method.

[Mugdan, Walter E. (January 25, 2002) Environmental law issues raised by terrorist events. Speechbefore the NY Bar Association, NYC. Walter Mugdan is Regional Counsel for EPA Region 2.

- 27 -

Posted at www.NYenviroLAW.org ]

However, what Region 2 Counsel fails to admit is the fact that more sensitive testmethods, namely TEM, is required by official EPA policy when the less sensitive test,PLM, fails to show the presence of asbestos. See later sections on the EPA guidancerequiring TEM testing of settled dusts and other solid materials.

In Superfund guidance, EPA found 1% asbestos or lower is hazardous

In guidance for Superfund cleanup actions, EPA has also stated that less than1%asbestos in soils could present hazards:

Questions and Answers about Asbestos and EPA's Libby Investigation

Q : I recently read that EPA found less than 1% (or trace levels) asbestos at

Fireman's Park and other locations that were sampled. Is that a safe level?

A : This is a very difficult question, and at this time we are not sure. Levels at 1%

or less may be safe. Even higher levels could be considered safe at remote

locations where no one comes in contact with the material. The key to

determining whether there is a risk is exposure. If there is no exposure pathway

i.e., a way for the asbestos to get into your body, such as contact with the

material, or people driving over the material so that they breathe in the fibers,

there is no risk. Levels of 1% or less could present a risk where there is enough

activity to stir up soil and cause asbestos fibers to become airborne.

[www.epa.gov/region8/superfund/libby/qsafe.html ]

Soils containing only 0.001% asbestos can lead to hazardous air levels

One study found that soils containing only 0.001% asbestos can lead to airconcentrations of 0.01 fibers per milliliter (f/mL) (PCM). As seen from thepreceding section on asbestos in air, this level of 0.01 f/mL is many times over eitherthe EPA one-in-a-million cancer risk level of 0.000004 f/mL (PCM), or the typicalbackground levels of asbestos in outdoor air of 0.000002 f/mL (PCM); or indoor airof 0.000003 f/mL (PCM).

Suitable Action Levels ... Airborne dust clouds were generated from mixtures of

soils w ith different asbestos varieties in bulk concentrations ranging from 1 to

0.001 % asbestos. ... The experiments showed very clearly that even the lowest

bulk amphibole asbestos content tested (0.001%) was still capable of producing

measurable airborne asbestos concentrations (greater than 0.01 fibers ml -1).

[Addison, J. (1995) Vermiculite: A review of the mineralogy and health effects of vermiculiteexploitation. Reg. Tox. and Pharm. 21: 397 - 405 ]

- 28 -

Decontamination of demolition sites must be cleaned up to background, notjust 1%, under the EPA asbestos NESHAP

Under EPA’s NESHAP, the surrounding soils around a demolition site must becleaned up to background levels of asbestos.

Region 2 has attempted to draw guidance from these NESHAPs regulations, citingthem in its justification for claiming that 1% is the cleanup level, drawing an analogyto the regulations for the asbestos containing building materials themselves.

The correct analogy, however, would be to compare what is required for soilssurrounding a demolition site, where the WTC is considered the demolition site. Asseen below, the surrounding soils are required to be cleaned up to background levels,not 1%.

Decontamination of Demolition Site

If the surrounding soil has been contaminated by the demolition activities at the

site, the site must be cleaned up to background levels of asbestos contamination.

Alternatively, the site may be operated in accordance with section 61.154

(Standard for active waste disposal sites) and closed in accordance with section

61.151 (Standard for inactive waste disposal sites for asbestos mills and

manufacturing and fabricating operations). However, according to 40 CFR 61.05,

the establishment of an active waste site requires prior approval from EPA or the

delegated State program . To clean up the site to background levels, it w ill

probably be necessary to remove all the asbestos contaminated soil. The

contaminated soil should be treated and disposed of as asbestos-containing

waste material.

Decontamination of Area Surrounding Demolition Site

If a site assessment detects contamination of soil surrounding a demolition site,

the site must be cleaned up to background levels of asbestos contamination.

Alternatively, the site may be operated in accordance with section 61.154

(Standard for active waste disposal sites) and closed in accordance with section

61.151 (Standard for inactive waste disposal sites for asbestos mills and

manufacturing and fabricating operations). However, according to 40 CFR 61.05,

the establishment of an active waste site requires prior approval from EPA or the

delegated State program . To clean up the site to background levels, it w ill

probably be necessary to remove all the asbestos contaminated soil. The

contaminated soil should be treated and disposed of as asbestos-containing

waste material.

[emphasis added]

[US EPA (1994) Asbestos/NESHAP Demolition Decision Tree. EPA Manufacturing, Energy, andTransportation Division, Office of Compliance. Available from the EPA OPPTS Ombudsman’s office]

Region 2 would need to establish background levels for soils and dusts by measuringenough samples from other parts of the city and surrounding suburbs using sensitivetesting. As shown later, the required laboratory method would be TEM analyses forbulk soils and dusts, according to EPA policy under both AHERA and the NESHAP.

- 29 -

The Agency for Toxic Substances and Disease Registry found no studies measuringtypical soil background levels of asbestos. From a limited additional literature search,I also found no studies. Thus, I am not able to provide data for typical soil levels orbackground levels for asbestos. (ATSDR (2000) Toxicological Profile for Asbestos,Centers for Disease Control, ATSDR. Available by calling 1-888-42-ATSDR. Atthis time, only the final draft version is posted on the internet atwww.atsdr.cdc.gov/toxprofiles/tp61.html )

Under both the EPA NESHAP and AHERA regulations, ZERO emissions ofasbestos-contaminated dusts is required, not emissions containing only 1%asbestos or less

Under both the asbestos NESHAP and AHERA regulations, ZERO emissions ofasbestos-containing dusts are required, not “emissions of dusts containing less than1% asbestos.”

In the collapse of the WTC, the airborne dusts are also analogous to the dustemissions from the transport or disposal of asbestos wastes under AHERA or theNESHAP. From the above section, they are probably more analogous tocontaminated soils around a demolition site. They are not, however, as Region 2 istrying to argue, analogous to the original building materials themselves where the 1%rule applies..

The requirement for zero emissions, not emissions of dusts containing less than 1%asbestos, is made clear in the following guidance and regulations:

[NESHAP] Q: Is there a numeric emission limit for the release of asbestos fibers

during renovations or demolitions in the asbestos NESHAP regulation?

A: No, the Asbestos NESHAP relating to demolitions or renovations is a work

practice standard. This means that it does not place specific numerical emission

limitations for asbestos fibers on asbestos demolitions and removals. Instead, it

requires specific actions be taken to control emissions. However, the Asbestos

NESHAP does specify zero visible emissions to the outside a ir from activity

relating to the transport and disposal of asbestos waste.

[emphasis added]

[US EPA. Common Questions on the Asbestos NESHAP. Posted athttp://www.epa.gov/opptintr/asbestos/neshap.pdf ]

[NESHAP] 40 CFR §61.144 Standard for manufacturing. ...

(b) Standard. Each owner or operator of any of the manufacturing operations to

which this section applies shall either:

(1) Discharge no visible emissions to the outside air from these operations or

from any building or structure in which they are conducted or from any other

fugitive sources; or

(2) Use the methods specified by §61.152 to clean emissions from these

operations containing particulate asbestos material before they escape to, or are

- 30 -

vented to, the outside a ir.

(3) Monitor each potential source of asbestos emissions from any part of the

manufacturing facility, including air cleaning devices, process equipment, and

buildings housing material processing and handling equipment ...

[AHERA] 40 CFR § 763 - Appendix D to Subpart E -- Transport and Disposal of

Asbestos Waste

For the purposes of this appendix, transport is defined as all activities from receipt

of the containerized asbestos waste at the generation site until it has been

unloaded at the disposal site. Current EPA regulations s tate that there must be no

visible emissions to the outside a ir during waste transport. However, recognizing

the potential hazards and subsequent liabilities associated with exposure, the

following additional precautions are recommended.

[emphasis added]


The regulations themselves define the building materials as those containing 1% ormore asbestos, and the dusts emanating from these materials are defined as emissionsor debris. The 1% regulations do not apply to the emissions.

[AHERA] 40 CFR §763.83 Definitions. For purposes of this subpart: Act means

the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601, et seq. ...

Asbestos-containing material (ACM) when referring to school buildings

means any material or product which contains more than 1 percent asbestos.

Asbestos-containing building material (ACBM) means surfacing ACM,

thermal system insulation ACM, or miscellaneous ACM that is found in or on

interior structural members or other parts of a school building. Asbestos debris

means pieces of ACBM that can be identified by color, texture, or composition, or

means dust, if the dust is determined by an accredited inspector to be ACM. ...

Fiber release episode means any uncontrolled or unintentional disturbance

of ACBM resulting in visible emission.

4. "Major fiber release episode" means any uncontrolled or unintentional

disturbance of ACBM, resulting in a visible emission, which

involves the falling or dis lodging of more than 3 square or linear feet of fr iable

ACBM.

5. "Minor fiber release episode" means any uncontrolled or unintentional

disturbance of ACBM, resulting in a visible emission, which

involves the falling or dislodging of 3 square or linear feet or less of friable ACBM.

[NESHAP] 40 CFR §61.141 Definitions. ...

Category I nonfriable asbestos-containing material (ACM) means

asbestos-containing packings, gaskets, resilient floor covering and asphalt

roofing products containing more than 1 percent asbestos ...

Category II nonfriable ACM means any material, excluding Category I

nonfriable ACM, containing more than 1 percent asbestos ...

Fugitive source means any source of emissions not controlled by an air

pollution control dev ice. ...

Visible emissions means any emissions, which are visually detectable

without the aid of instruments, coming from RACM [regulated asbestos containing

material] or asbestos-containing waste material, or from any asbestos milling,

- 31 -

manufacturing, or fabricating operation. This does not include condensed,

uncombined water vapor.

[emphasis added]


EPA guidance requires the most sensitive method, transmission electronmicroscopy (TEM), for certain bulk materials under both the asbestosNESHAP and AHERA

– Region 2 only used the less sensitive method, PLM, in violation ofEPA policy

EPA advises against the use of polarized light microscopy (PLM) for those situationswhere the asbestos fibers are thin and cannot be detected by PLM. EPA has issuedguidance for the use of a more sensitive test method for bulk materials (buildingmaterials, dusts and soils lying on surfaces) using transmission electron microscopy(TEM).

The asbestos fibers from the WTC are primarily of the chrysotile category, wheremany of the fibers are thin and cannot be detected using PLM. TEM is the moresensitive method that can detect them in settled dusts, soils, and other solidmaterials, as well as in air.

In 1994, EPA issued guidance to offer added precaution and protection for workersand building occupants under both the asbestos in schools rule (AHERA) and theClean Air Act asbestos NESHAPS for the improved method for the analysis of bulksamples. EPA recommended that if any materials were found not to contain asbestosby the old method (PLM, polarized light microscopy) should be retested usingtransmission electron microscopy (TEM).

Abstracts of the EPA advisory from the Federal Register follow:

This notice announces the availability of an improved asbestos bulk sample

analysis test method for use with bulk samples collected for identification of

asbestos-containing materials under the Asbestos Hazard Emergency Response

Act (AHERA) regulations and the asbestos National Emission Standard for

Hazardous Air Pollutants (NESHAP).

...

The test method provides clarifications and improvements to the 1982 EPA

``Interim Method for the Determination of Asbestos in Bulk Insulation Samples ''

(as found in 40 CFR part 763 Appendix A to Subpart F). Specifically, use of the

improved method can provide more precise analytical results especially at low

asbestos concentrations, enhanced analysis of floor tiles which may contain thin

asbestos fibers below the limits of resolution of the polarized light microscope

(PLM), and clearer instruction on the analysis of bulk materials, particularly where

- 32 -

multiple layers are present.

The 1982 method is limited in that it does not provide guidance for analyzing

materials that contain thin (<0.25 micrometers) asbestos fibers. As a

consequence, floor tiles which were analyzed according to the 1982 method and

for which negative results were reported may actually contain undetected

asbestos. At this time EPA does not have data to support identification of other

materials which may have thin fibers.

The improved method addresses the thin fiber limitation of the 1982 method by

providing directions for using transmission electron microscopy (TEM). The test

method includes improved procedures for reducing matrices so that fibers may be

made available for microscopic analysis.

In light of the availability of the improved method, EPA recommends that local

education agencies (LEAs) use the improved method in place of the 1982

procedures as found in 40 CFR part 763 Appendix A to Subpart F. EPA has

made the determination that the improved method is more capable of producing

accurate results than the 1982 protocol and thus serves as a preferred substitute

method. Further, EPA recommends that LEAs which have PLM laboratory results

indicating floor tiles to be non-asbestos-containing (asbestos present in less than

or equal to 1 percent) reconsider whether these materials may have thin asbestos

fibers.

...

Before undertaking activities which might trigger asbestos NESHAP

requirements, it is recommended that LEAs consider resampling multi-layered

materials which have been found to be nonasbestos-containing for AHERA

purposes or assume them to be asbestos-containing prior to disturbance

according to the guidelines set forth in this current notice, in the January 5, 1994

NESHAP Federal Register notice, and in the improved analytical method to avoid

potential violation of the asbestos NESHAP.

[emphasis added]

[FR notice is posted athttp://yosemite.epa.gov/R10/OWCM.NSF/d14dabb756dc1fb3882565000062f164/878a5d97c3853a2e882566dd0056fee7?OpenDocument .

This guidance was published in the Federal Register for AHERA on August 1, 1994 (59 FR 38970),and for the asbestos NESHAP on January 5, 1994 (59 FR 542). 1994 FR is posted athttp://www.access.gpo.gov/su_docs/multidb.html . See also the Asbestos Sampling Bulletin, 1994EPA Order Number: EPA745K94058, US EPA Environmental Assistance Division, TSCA AssistanceInformation Service Hotline, 1200 Pennsylvania Ave NW (7408), Washington, DC 20460, PhoneNumber: 202-554-1404, Fax Number: 202-554-5603]

EPA NESHAP regulations require testing by the sensitive TEM method forasbestos-derived wastes to determine if they asbestos free

– The asbestos-free level is “no asbestos detected by TEM” – not 1%

The NESHAP regulations themselves require the use of transmission electronmicroscopy (TEM) to determine whether wastes can be considered “asbestos free.” The standard for being asbestos free is not 1%, but instead no detectable asbestos bythe most sensitive test method, TEM. The use of polarized light microscopy (PLM)is not sufficient according to the regulations, because this method cannot reliably

- 33 -

determine asbestos at concentrations less than 1%, and because this method cannotdetect the thinner, smaller asbestos fibers, such as chrysotile.

[NESHAP] 40 CFR § 61

§61.155 Standard for operations that convert asbestos-containing waste material

into nonasbestos (asbestos-free) material.

Each owner or operator of an operation that converts RACM and asbestos-

containing waste material into nonasbestos (asbestos free) material shall: (a)

Obtain the prior written approval of the Adm inistrator to construct the facility.... In

addition to the information requirements of §61.07(b)(3), a (i) Description of waste

feed handling and temporary storage. (ii) Description of process operating

conditions. (iii) Description of the handling and temporary storage of the end

product. (iv) Description of the protocol to be followed when analyzing output

materials by transmission electron microscopy.

...

(b) Conduct a start-up performance test. Test results shall include:

(1) A detailed description of the types and quantities of nonasbestos material,

RACM, and asbestos-containing waste material processed, e.g., asbestos

cement products, friable asbestos insulation, plaster, wood, plastic, wire, etc. Test

feed is to include the full range of materials that will be encountered in actual

operation of the process.

(2) Results of analyses, using polarized light microscopy, that document the

asbestos content of the wastes processed.

(3) Results of analyses, using transmission electron microscopy [TEM], that

document that the output materials are free of asbestos. Samples for analysis are

to be collected as 8-hour composite samples (one 200-gram (7-ounce) sample

per hour), beginning with the initial introduction of RACM or asbestos-containing

waste material and continu ing until the end of the performance test.

...

(c) During the initial 90 days of operation ... (2) Monitor input materials to ensure

that they are consistent with the test feed materials described during start-up

performance tests in paragraph (b)(1) of this section. (3) Collect and analyze

samples, taken as 10-day composite samples (one 200-gram (7-ounce) sample

collected every 8 hours of operation) of all output material for the presence of

asbestos. Composite samples may be for fewer than 10 days. Transmission

electron microscopy (TEM) shall be used to analyze the output material for the

presence of asbestos. During the initial 90-day period, all output materials must

be stored on-site until analysis shows the material to be asbestos-free or

disposed of as asbestos- containing waste material according to §61.150....

(h) Nonasbestos (asbestos-free) output material is not subject to any of the

provisions of this subpart. Output materials in which asbestos is detected, or

output materials produced when the operating parameters deviated from those

established during the startup performance testing, unless shown by TEM

analysis to be asbestos-free, shall be considered to be asbestos-containing

waste and shall be handled and disposed of according to §§61.150 and 61.154 or

reprocessed while all of the established operating parameters are being met.

[emphasis added]


- 34 -

OSHA regulations recommend TEM analyses of settled, bulk dusts

The Occupational Safety and Health Administration (OSHA) also recommends theuse of sensitive TEM analyses for settled, bulk dusts and other solid asbestosmaterials. The following are the relevant OSHA regulations:

[OSHA] 29 CFR 1926.1101 Appendix A -Polarized Light Microscopy of Asbestos -

Non-Mandatory

...

Light microscopy has been used for well over 100 years for the determination of

mineral species. This analysis is carried out using specialized polarizing

microscopes [PLM] as well as bright field m icroscopes. ...

When electron microscopy was applied to asbestos analysis, hundreds of fibers

were discovered present too small to be visible in any light microscope [such as

PLM]. There are two different types of electron microscope used for asbestos

analysis: Scanning Electron Microscope (SEM) and Transmission Electron

Microscope (TEM). Scanning Electron Microscopy is useful in identifying

minerals. The SEM can provide two of the three pieces of information required to

identify fibers by electron microscopy: morphology and chemistry. The third is

structure as determined by Selected Area Electron Diffraction -- SAED which is

performed in the TEM. Although the resolution of the SEM is sufficient for very

fine fibers to be seen, accuracy of chemical analysis that can be performed on

the fibers varies with fiber diameter in fibers of less than 0.2 um diameter. The

TEM is a powerful tool to identify fibers too small to be resolved by light

microscopy and should be used in conjunction with this method when necessary.

The TEM can provide all three pieces of information required for fiber

identification. Most fibers thicker than 1 um can adequately be defined in the light

microscope.

The light microscope remains as the best instrument for the determination of

mineral type. This is because the minerals under investigation were first

described analytically with the light microscope. It is inexpensive and gives

positive identification for most samples analyzed. Further, when optical

techniques [PLM] are inadequate, there is ample indication that alternative

techniques [TEM and SEM] should be used for complete identification of the

sample.

[emphasis added]

[Code of Federal Regulations posted at either OSHA site athttp://www.osha.gov/OshStd_toc/OSHA_Std_toc.html orhttp://www.access.gpo.gov/nara/cfr/cfr-table-search.html ]

Settled dusts in Lower Manhattan had higher asbestos than soils in Libby, MT

– Region 2 claims that asbestos levels are “low” in Manhattan dust

The settled dusts in Lower Manhattan tested in the early days after the WTCcollapse had higher concentrations of asbestos than outdoor soils in the town ofLibby, Montana, the Superfund site.

- 35 -

Around 35% of the samples of bulk dust taken in Lower Manhattan in the first few

days after the collapse exceeded the 1% level.

[Mugdan, Walter E. (January 25, 2002) Environmental law issues raised by terrorist events. Speechbefore the NY Bar Association, NYC. Walter Mugdan is Regional Counsel for EPA Region 2. Posted at www.NYenviroLAW.org ]

There was a higher percentage of samples that had over 1% asbestos from the WTCthan soils in Libby, Montana, the town that is a Superfund site. The concentrationsof asbestos, when the asbestos was found, are the same in Libby as in LowerManhattan. In Libby, soils from yards from residences, etc., are being removedbecause of the asbestos hazard they pose.

The following table compares the WTC dust levels to soils in Libby.

COMPARISON OF WTC DUST CONTAMINATION WITH ASBESTOS IN YARD SOILS AT

LIBBY SUPERFUND SITE

Outdoor dusts or soils Percent samples with 1%

or higher asbestos

Levels of asbestos that

were over 1%

Lower Manhattan, first few days 35 % 1 - 4.5 %

Libby, Montana, soils from yards 2.6 % 1 - 5 %

Table 1, page 6 of risk assessment, Weis, C. P., Senior Toxicologist/Science Support Coordinator, U.S. EPA(December 20, 2001) Excerpts from: Amphibole mineral fibers in source materials in residential and commercial areasof Libby pose an imminent and substantial endangerment to public health. Posted at: http://www.epa.gov/region8/superfund/libby/riskassess.html

Mugdan, Walter E. (January 25, 2002) Environmental law issues raised by terrorist events. Speech before the NYBar Association, NYC. Walter Mugdan is Regional Counsel for EPA Region 2. Posted at www.NYenviroLAW.org

Region 2 Counsel has claimed that the asbestos concentration in WTC dusts was lowand not a health hazard. This directly contradicts the findings of the extensive riskassessment for Libby where the same concentrations, occurring less frequently, werethe basis for placing Libby on the Superfund list:

By contrast, when WTC dust was found to contain concentrations in excess of

1%, it was nevertheless still quite low – typically between 1% and 4%.

[Mugdan, Walter E. (January 25, 2002) Environmental law issues raised by terrorist events. Speechbefore the NY Bar Association, NYC. Walter Mugdan is Regional Counsel for EPA Region 2. Posted at www.NYenviroLAW.org ]

Dusts from the collapse of the WTC present more risk than soils in Libby becausethey are a finely divided surface dust with no vegetation to hold them in place. Although the dusts from the WTC have now been removed to some extent, we donot know how effective the removal is to date, or whether dusts have been effectivelyremoved from roofs, which have a larger surface area than the streets in LowerManhattan.

- 36 -

REGION 2 ASBESTOS ABATEMENT AT

THEIR OWN 290 BROADWAY BUILDING

EPA Region 2 had positive results from sensitive TEM testing for its ownbuilding and on this basis decided to abate for asbestos

– Less sensitive PLM tests, the only one used for bulk dusts for the restof Manhattan, were negative for the Region 2 building

– But for the results from the more sensitive tests, Region 2 would nothave abated asbestos from its building

– TEM tests for bulk dust are required by EPA policy, but Region 2 didnot use these tests for the rest of Manhattan

– EPA Region 2 was offered free access to similar more sensitivetesting (SEM) by Region 8 for the rest of Manhattan but refused

– The same, more sensitive test method (SEM) was used after the firstbombing of the WTC in 1993, but Region 2 refused it after the WTC

EPA had positive results for settled asbestos in its own building at 290 Broadway

from a very sensitive test, transmission electron microscopy (TEM). This test is able

to detect asbestos in much lower concentrations and is able to detect much smaller

asbestos fibers than the older method, PLM.

But for the fact that Region 2 had the results of this more sensitive method, TEM on

settled dusts, it would have taken no action to clean its building. This is because the

results of the other tests, the air tests and the PLM tests of the settled dusts, were

negative.

On the basis of the results of the sensitive test, EPA cleaned the lobby of its building

with HEPA vacuum trucks, and also cleaned the lobbies of other buildings in the

area. The General Services Administration also cleaned the EPA building, using wet-

wiping methods using standard janitorial services. The filters on the air handling

equipment were also changed, even though tests showed no detectable asbestos in

these filters. EPA employees were “displaced” for a week (employees evacuated from

their offices) during these unusual cleaning operations.

The air both outside the entrance to the building, as well as inside the lobby, were

monitored for asbestos before and after the cleaning procedures. Although Region 2

- 37 -

is not calling these cleaning procedures “professional abatement,” they appear not to

differ from what other Manhattan residents have paid to have performed on their

apartments.

In marked contrast, Region 2 only performed PLM tests for bulk dusts on the ground

for the rest of Manhattan and other parts of New York City and the surrounding

boroughs. This is despite the fact that EPA has issued guidance under both the

asbestos in schools rule (AHERA) and the Clean Air Act asbestos NESHAPS for the

use of TEM for bulk materials, such as settled dusts or other solids. It is EPA policy

that if any materials were found not to contain asbestos by the old method (PLM,

polarized light microscopy) should be retested using transmission electron

microscopy (TEM). This guidance was published in the Federal Register and was

summarized in a preceding section.

This improved TEM method was developed to address situations where small, thin

fibers are present, which are frequently not detected by the magnification and

resolution limits of PLM. Since the primary form of asbestos from the WTC is

chrysotile, and since chrysotile has thin fibers that cannot always be detected by the

older, cruder PLM method, the improved TEM method should have been used for

the rest of Manhattan.

Scanning electron microscopy (SEM) is similar to TEM in its ability to detect the

thin fibers of chrysotile asbestos. Chrysotile asbestos is the primary form of asbestos

found from the WTC collapse.

EPA Region 8 offered Region 2 free SEM analytical capabilities for the evaluation of

bulk asbestos dusts after the WTC collapse. In a September 12 conference call,

Region 8 offered the use of 30 to 40 SEM’s, along with analysts. Region 8 had a

contract with EMSL Laboratories for the SEM’s, since they were using them to

evaluate soils at the Libby, Montana Superfund site. Region 8 was willing to divert

its resources to Region 2 to assist after the disaster. Twelve of the SEM’s were close

by and could have been in Manhattan the next day. However, Region 2 refused the

offer.

The figure shows graphically the difference in the testing methods used at the EPA

Region 2 building, for the rest of Manhattan after the WTC collapse, what was

offered to Region 8 but refused, and what was used after the bombing of the WTC in

1993.

- 38 -

DIFFERENCE IN TESTING METHODS AND SENSITIVITIES FOR:

– EPA Region 2 building at 290 Broadway

– All of Manhattan and surrounding NYC after WTC collapse

– After the first bombing of the World Trade Center

TEMlow sensitivity air tests using

transmission electron

microscope (TEM) lab

instruments

Air

NEGATIVE at Region 2 building,

290 Broadway, inside

and outside lobby,

except 1 sample out

of the 47 had 25

s/mm2, below what

Region 2 calls “safe.”

The detection limits

(sensitivities) of the

air tests ranged from

16.7 - 25 s/mm2

MA

NH

A

T

T

A

N

2

9

0

Br

oadway

PLMlow sensitivity polarizing light

microscopes which can see only

larger asbestos fibers and can

only reliably give concentrations

for 1% or higher

Dusts onSurfacesand bulkdusts

NEGATIVE at Region 2 building,

290 Broadway

E

P

A

TEMhigh sensitivity transmission

electron microscopes which can

see the smaller asbestos fibers

and can also see them in much

lower concentrations in dusts,

probably lower than 0.001%.

See 59 FR 38970 for AHERA

and 59 FR 542 for NESHAP

requirement to use TEM on

solid bulk materials.

Dusts onsurfacesand bulkdusts

POSITIVE at Region

2 building, 290

Broadway. EPA

guidance requires

TEM on dusts and

other bulk materials

for thin fibers under

both AHERA and the

NESHAP

SEMhigh sensitivity scanning electron

microscopes which can see the

smaller asbestos fibers and can

also see them in much lower

concentrations in dusts,

probably lower than 0.001%

Dusts onsurfacesand bulkdusts

Offered to EPA Region 2

by Region 8 for free for

Manhattan after WTCcollapse. Also used afterfirst bombing of WTC in1993

- 39 -

The following are excerpts from the report summarizing the asbestos testing and actionstaken at the Region 2 building. The testing was performed under contract to theGeneral Services Administration, who had overall responsibility for the maintenance ofthe building.

On 13 September 2001, air sampling was performed in the building by Phase

Contrast Microscopy (PCM), and by Transmission Electron Microscopy (TEM). All of

the PCM results were less than 0.01 fibers per cubic centimeter (f/cc), and all of the

TEM sample results were No Asbestos Structures Detected (NSD). On 14

September 2001 Stratus Corporation was directed to collect two TEM air samples,

and “wipe” samples inside and outside the building lobby, as well as to collect some

bulk samples from W A C filters. These samples were collected to determine if

asbestos fibers are now present w ithin the dust around the area. After consulting with

the laboratory, it was decided that the following types of samples would be collected:

1. Vacuum Samples - These are samples where a normal asbestos air sampling

cassette is attached to a pump, and used like a small vacuum cleaner. ... The

material collected can then be analyzed for asbestos by Qualitative Polarized

Light Microscopy [PLM], and Qualitative Transmission Electron Microscopy

[TEM].

2. Tape Samples - This is a sample where the collector uses a piece of clear tape,

like scotch tape, to collect the sample. Where surfaces are visibly dirty, the piece

of tape is applied to the surface, and then removed. ... The material collected can

then be analyzed for asbestos by Qualitative Polarized Light M icroscopy [PLM],

and Qualitative Transmission Electron M icroscopy [TEM].

3. Filter Samples - These samples are generated by cutting a piece of filter material

out of the HVAC unit in the building and placing it in a plastic bag for delivery to

the laboratory. The material collected can then be analyzed for asbestos by

Qualitative Polarized Light Microscopy [PLM], and Qualitative Transmission

Electron M icroscopy [TEM].

On 14 September 2001, two dust samples were collects outside the building

entrance, and three samples were collected inside the lobby. The initial TEM

qualitative analysis did find chrysotile asbestos to be present in the dust at all

locations inside, and outside the building.

On 14 September 2001, two tape samples were collected outside the building

entrance, and three samples were collected inside the lobby. No asbestos was

detected in any of these three samples by PLM qualitative analysis, or by TEM

qualitative analysis.

On 14 September 2001, three samples were collected from the HVAC filters. One

sample was collected from AC-1, one sample was collected from AC-32, and one

sample was collected from AC-31. No asbestos was detected in any of these three

samples by PLM qualitative analysis, or by TEM qualitative analysis.

One of the two TEM air samples collected on 14 September 2001, simultaneous to

the “w ipe” sampling both yielded results of No Asbestos Structures Detected (NSD).

The other sample did detect asbestos, as was collected inside the lobby, by the West

wall.

...

- 40 -

After the discovery of asbestos in the lobby of the building, the EPA informed the

building management, that the EPA would be cleaning the lobby areas of all the

buildings in the area. Additionally, building cleaning personnel also began performing

cleaning inside the building lobbies.

On 16 September Stratus was requested to begin a regime of continuous TEM air

sampling at the Duane Street entrance, the only operational entrance to the building.

Init ially, two samples were collected outside the Duane Street entrance, and two

samples were collected inside the Duane Street entrance. ... On 19 September 2001

an additional two sets of samples were collected, and samples were taken at the air

intake location to some HVAC systems at this time.

From 16 September through 19 September 2001, a total of 47 TEM air samples were

collected at this site. Except for three samples, all results were No Structures

Detected. Two of the other samples were overloaded, and the lab performed a

qualitative scan on the sample. This means that particulate matter on the samples

prevented the lab from accurately performing an analysis on the sample, so they had

to declare it overloaded. The qualitative scan was then performed to see if any

asbestos fibers could be found. On both overloaded samples, no asbestos structures

were observed.

One sample collected outside the entrance during the morning of 17 September did

find asbestos in the sample. The value for this sample was 0.003 structures per cubic

centimeter [equivalent to ] 25 structures per square millimeter. This reading is

considered a low reading, and would be an acceptable reading for post abatement

sampling after an asbestos abatement project.

[Stratus Corporation (October 5, 2001) Asbestos Emergency Monitoring Report at 290 Broadway after theWorld Trade Center Disaster, Final Report. Made available by EPA Region 2 in response to a January 3,2002 Freedom of Information Act request by the New York Environmental Law and Justice Project. Posted at http://www.nyenvirolaw.org/PDF/EPA-FOIL-scannedOn-2-27-02.pdf ]

A very different version of these events was contained in a February 22, 2002 letter toCongressman Nadler from EPA Administrator Whitman:

EPA did not set a more stringent standard of cleanup for these federal buildings, and

the lobby c leanup was consistent w ith the New York City Department of Health

advisory. After noting significant amounts of dust tracked into 290 Broadway and 26

Federal Plaza by workers responding at the World Trade Center, the General

Services Administration asked EPA to clean the lobbies. The work was done by EPA

contractors using HEPA vacuums already operating in the same area. As outlined in

the enclosure, EPA collected seven air samples at 26 Federal Plaza and six air

samples at 290 Broadway, and found results below levels of concern.

[first attachment to letter follows, full text]

USEPA Air Analytical Results from 9/13/01 Sampling Event

26 Federal Plaza: Seven air samples were collected at the 26 Federal Plaza (13th,

26th, 38th, 39th floor and in the lobby). The asbestos concentrations ranged from non-

detect to 0.0072 fibers/cc (south lobby). Data results are less than the OSHA

Permissible Exposure Limit of 0.1 fibers/cc.

290 Broadway: Six air samples were collected at the 290 Broadway (8 th, 22th, LL-

1, LL-2 and Lobby). The asbestos concentrations ranged from non-detect to 0.0133

fibers/cc (LL-1).

- 41 -

One Chase Plaza: One outdoor air sample was colleted at One Chase Plaza; the

asbestos concentration was 0.0098 fibers/cc.

Methodology.

Air samples were analyzed by TEM EPA 40CFR763 AHERA.

Dust samples were analyzed by PLM – EPA-600 R-93/116.

[Available by FOIA request to EPA Headquarters in Washington, DC, FOIA Office, 1200 PennsylvaniaAve, Washington, DC 20460. May be posted at www.NYenviroLAW.org ]

The above is an erroneous interpretation of events, contradicted by the information andreport and data sheets supplied by Region 2 to the New York Environmental Law andJustice Project. Because Ms. Whitman had no first-hand knowledge of the events, it isprobable that Region 2 again supplied her with misinformation. The errors in Ms.Whitman’s statements are as follows:

! The attachment to Ms. Whitman’s letter, summarizing sampling on September 13,only mentions the 6 air samples which took place at 290 Broadway on September 13. However, between September 16 and September 19, another 47 air samples weretaken at 290 Broadway, before and after the unusual cleaning procedures.

! The attachment to Ms. Whitman’s letter misrepresents the type of test method usedfor the settled dust. It states that only PLM tests were performed. Although theywere, the settled dusts were also tested by the sensitive TEM method. Region 2conveniently omitted this important fact.

! The letter does not mention the fact that the report supplied in response to the FOIArequest shows that it was Region 2 who decided to take action, cleaning not only itsown lobby, but the lobbies of other buildings in the area. Thus, Region 2's excuse of “workers responding at the World Trade Center tracking in dusts” is totally invalid. Why would they have cleaned the lobbies of other buildings in the area if this weretrue?

! The letter does not mention the other special cleaning actions taken at 290Broadway in addition to the HEPA vacuuming of the lobby. This included thedisplacement of all the employees from the building for about a week, the changing ofthe air handling filters, and the wet wiping cleaning process, albeit by standardjanitorial personnel.

Region 2 defends the sensitive TEM settled dust tests on its own building bysaying the lab suggested it to GSA

– The lab suggested it only because it was official EPA guidance and aNY State regulatory requirement to perform TEM tests of settled dustsand solid materials under this type of situation

Region 2 is reportedly defending the inclusion of the sensitive TEM tests for settled dusts

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at its 290 Broadway building by claiming that the laboratory suggested these tests to theGeneral Services Administration.

But that was only right and proper on the part of the laboratory. The laboratory knewthat the primary form of asbestos which emanated from the WTC collapse waschrysotile, commonly used in flooring tiles, and commonly having fiber widths(diameters) to small to be detected by PLM.

In fact, SciLabs was highly responsible in this regard. At the bottom of every table givingthe results of the analyses for the bulk dust analyses on the 290 Broadway building,SciLabs included the following statement, reminding its clients of the obligations underEPA guidance and NY State regulations to perform TEM for both floor covering andsimilar materials, and that TEM was the appropriate method:

Note: PLM is not consistently reliable in detecting asbestos in floor coverings and similar non-

friable organically bound materials. TEM is currently the only method that can be used to

determine if this material can be considered or treated as non-asbestos-containing in New

York State (see also EPA Advisory for floor tile, FR 59, 146, 38970, 8/1/94).

[SciLab (September, 2001) Communications transmitting testing results for 290 Broadway building to S&BEnvironmental, the contractor who took the samples on behalf of GSA. These lab analyses tables from ScientificLaboratories, Inc. are included as part of the Region 2 FOIA response to the NY Environmental Law and JusticeProject posted at http://www.nyenvirolaw.org/PDF/EPA-FOIL-scannedOn-2-27-02.pdf ]

Thus, even at the time, EPA was reminded by the laboratory of their obligation underofficial EPA guidance, published in the Federal Register, and New York State regulations,that TEM analyses were required to determine whether or not a material was non-asbestos-containing.

Region 2 withheld testing results for its own building in response to FOIArequest

It is interesting and telling that Region 2 withheld all of the testing data on its ownbuilding when it provided documents to the New York Environmental Law and JusticeProject (www.NYenviroLAW.org) in response to a 9/21/01 Freedom of Information Actrequest. The request included all documents meeting the following description:

... all monitoring data, studies and reports of air, dust, bulk (including but not limited to

hazardous materials and water samples) taken from September 11, 2001 to present

in response to the World Trade Center disaster (including but not limited to lower

Manhattan and Staten Island land fills). [original FOIA request posted at

www.NYenviroLAW.org ]

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CONCLUSIONS

EPA Region 2 has selectively modified and violated federal EPA regulations andpublished guidance and directives. Air has not been tested with adequate sensitivity, andair has not been tested in the places where it matters, inside homes and at the breathingzones of a small child under conditions of normal activities. Settled dusts and debrishave not been tested with the more sensitive tests required by EPA policy, TEM. Airand settled dusts have been claimed to be “safe” and “within standards” when no suchstandards at the claimed levels exist.

Both the AHERA level of 70 s/mm2 and the detection limits for Region 2's air testing ofasbestos are HIGHER than the levels of asbestos found inside homes in Libby, Montana,which resulted in that town becoming a Superfund site. No testing to date has been withadequate sensitivity to show that the air either outside or inside is safe in Manhattan orthe rest of New York City.

The tests for settled dusts also have not been sensitive enough, because Region 2 hasrefused to test using sensitive TEM methods, violating EPA guidance and policy. The1% criteria for safety Region 2 would have us believe is contradicted by the very EPANESHAP regulations and guidance which Region 2 claims it is following. Furthermore,the level of asbestos in settled dusts in Lower Manhattan were higher than the levels inyard soils at the Libby Superfund site.

To compound these faults, Region 2 utilized the results of more sensitive TEM testingfor settled dusts for its own building, as a basis for an unusual cleanup. Thesimultaneous less sensitive method for its building, PLM of settled dusts, was negative. But this crude PLM test was the only one used by Region 2 for the rest of Manhattan,even when official EPA guidance required the use of TEM. Later, Region 2 obscured thefact that it both had the results of and relied upon the sensitive TEM tests for its ownbuilding to Governor Whitman.

While utilizing the results of TEM to take action on its own building, Region 2 evenrefused the assistance of EPA Region 8 who offered free SEM testing for the dust inManhattan, which is similar to TEM testing.

It is probable that Region 2 has similarly failed other citizens in smaller exposuresituations, where public oversight has been less intense. I personally believe that theprecedents of past failures should not hold sway in this unprecedented tragedy and timeof need of the citizens of New York City.

I also personally believe that Region 2 is not supplying EPA Headquarters and the publicwith accurate information about its own activities, which is a disservice to all involved.

As stated at the beginning, this memorandum represents my own professional judgementand not necessarily the official position of the EPA.

U.S. Congressman Jerrold Nadler

White Paper

Lower Manhattan Air Quality

Last Updated

April 12, 2002

Cate

Text Box

Available on the 9/11 Digital Archive website at: http://old.911digitalarchive.org/objects/112.pdf CITATIONS in Congressman Nadler's 4/12/02 White Paper to Jenkins' reports/memos dated: 11/15/01, 12/19/01, 1/11/02, 3/6/02, and 3/11/02

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U.S. CONGRESSMAN JERROLD NADLERWHITE PAPER

LOWER MANHATTAN AIR QUALITYLast Updated, April 12, 2002

Executive Summary

• EPA Administrator Christine Todd Whitman misled the public when she announced to NewYorkers, shortly after the September 11th terrorist attacks, that their “. . .air is safe to breathe”and that they “. . .need not be concerned about environmental issues as they return to theirhomes and workplaces” as the EPA did not have the proper information to make suchassurances.

• The EPA also misled the public about air quality by mischaracterizing its own data andignoring or withholding other critical data that contradicted Ms. Whitman’s assurances.

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

• As a result of the EPA’s misleading statements about air quality and because it allowed theCity of New York to handle matters related to indoor environments, there has beeninadequate hazardous materials testing and remediation inside residential and commercialbuildings downtown – putting the public health at risk.

• By allowing indoor air quality in residential and commercial buildings to be handled by theCity of New York, and by not properly exercising its oversight authority pursuant to theNational Contingency Plan (NCP), the EPA violated federal law.

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

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

1 EPA Press Release, “Whitman Deta ils Ongoing Agency Efforts to M onitor Disa ster Sites, C ontribute toCleanup Effort,” September 18th, 2001. Ms Whitman’s full statement is as follows: “We are very encouragedthat the results for our mo nitoring air q uality and drinking water conditions in both New York and near thePentagon show that t he public in these areas is not being exposed to e xcessive levels of asbestos or otherharmful substances. Given the scope of the tragedy from last week, I am glad to reassure the people of NewYork and Washington, DC, that their air is safe to breath[sic] and their water is safe to drink.” This sentimenthas been echoed repeatedly by EPA spokespeople and other governmental agencies, and, to this day, has beenused as the definitive government comment on Lower Manhattan air quality post- 9/11. Two days later, Ms.Whitman added in a press release, “New Yorkers. . .need not be concerned about environmental issues as theyreturn to their homes and workplaces.” (September 21, 2001).2 Ferraro, Susan, “EPA Chief Says Water, Air are Safe,” New York Daily News, September 14, 2001.3 Ground Zero Elected Off icials Ta sk Fo rce (C ongressman Je rrold Na dler, C hair) “ Memorandum #4,”September 21, 2001.4 Schneider, Andrew, “NY Officials Underestimate Danger,” St. Louis Post Dispatch, January 13, 2002.5 EPA Region II Press Release, “EPA Statement,” January 17, 2002.6 Jane Kenny (EPA Region II Administrator), “Testimony before the United States Senate Subcommittee onClean Air, Wetlands, and Climate Change,” February 11, 2002.

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Christine Todd Whitman’s “Safe” Assurance

EPA Administrator Christine Todd Whitman misled the public when she announced toNew Yorkers, shortly after the September 11th terrorist attacks, that their “. . .air is safe tobreathe,” and that they “. . .need not be concerned about environmental issues as they return totheir homes and workplaces,” as the EPA did not have the proper information to make suchassurances. Ms. Whitman’s "safe" statement was first made in written form on September 18,20011 (though she had been quoted as early as September 14, 20012), before there was a singletest of indoor air quality conducted by any governmental entity.

In response to criticism on this point, the EPA countered that Ms. Whitman’s statementwas made on the basis of outdoor air tests only. [It should be noted that the EPA had not evenintended to do testing of outdoor air in residential areas until the Ground Zero Elected OfficialsTask Force (GZTF) requested that it do so in a memo dated September 21, 2001, in which it alsorequested indoor air testing.3] On January 13, 2002, an EPA Region II spokesperson stated,“That’s [indoor air testing] not our job and we have no policies or procedures for doing that typeof testing.”4 On January 17, EPA Region II issued a statement saying, “. . .EPA has lead [sic]the effort to monitor the outdoor environment while the city of New York has taken the leadregarding the reoccupancy of buildings”5 thereby denying any responsibility for indoor air. EPARegion II Administrator Jane Kenny, took this "outdoor only" defense even further when shestated to a U.S. Senate panel, ". . .the statement that was made, was basically about walkingaround in Lower Manhattan."6 In any case, indoor air quality data did not even exist at the timeof Ms. Whitman’s September 18 statement.

To date there have only been two small rounds of governmentally conducted orcommissioned tests of indoor air quality in Lower Manhattan post 9/11. Neither can be used asevidence to support the statement that indoor air is “safe.” The first study, commissioned by theGround Zero Elected Officials Task Force (GZTF) on September 18, 2001 found elevated levelsof hazardous materials in a number of apartments that had not been cleaned or professionally

7 Ch atfield, E ric J. (Ph .D) and Ko minshy, John R. (M .Sc., C IH, C SP, C HM M), “Su mm ary R eport:Characterization of Particulate Found in Apartments After Destruction of the World Trade Center,” requestedby the ‘Ground Zero’ Elected Officials Task Force, October 12, 2001.8 NYC DOH Press Release, “NYC Department of Health Presents Findings from Indoor Air Sampling in LowerManhattan,” February 8, 2002.9 Nordgren, Megan D.; Goldstein, Eric A; and Izeman, Mark A (for the Natural Resources Defense Council),"The Environmental Impacts of the World Trade Center Attacks: A Preliminary Assesment," February 2002.10 UC Davis News and Information Press Release, “Trade Center Air Held Unprecedented Amounts of VeryFine Particles, Silicon, Sulfates, Metals, Say UC David Scientists.” February 11, 2002. See also Lau, Edie andBowman, Chr is, “ N.Y. Ai r Hazar ds Fo und: EPA Assurances Contradict ed by UCD Scienti sts,” The

Sacramento Bee, February 12, 2002.11 Polakovic, Gary, “Danger Found in Trade Center Air” Los Angeles Times, February 12, 2002. See also Lau,Edie and Bowman, Chris, “N.Y. Air Harzards Found: EPA Assurances Contradicted by UCD Scientists,” The

Sacramento Bee, February 12, 2002.12 Ibid.

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remediated, and some that had been cleaned or professionally remediated.7 The second study,conducted by the Agency for Toxic Substances and Disease Registry (ATSDR), at the request ofNew York City Department of Health (NYC DOH) in November and December 2001, is still notcompleted. According to a NYC DOH press release and a web site to which the release refers,the agency did find elevated levels of hazardous materials in early results, but the full results ofthe tests will not be available until Spring 2002.8

However, even with respect to outdoor air, Ms. Whitman’s statement has been called intoquestion by a number of respected environmental authorities. In a recent report, NaturalResources Defense Council (NRDC) described the situation post 9/11, "an unprecedentedenvironmental assault," (in terms of size and type) in which the "synergistic impacts of multiplepollutants on human health in the aftermath of an air quality emergency such as the one thatbegan on the day of the attacks are unknown."9 Ms. Whitman's pronouncements of safety areobviously incompatible with the reality that the health effects are "unknown."

Ms. Whitman's safety assurance on outdoor air was also countered directly by apublished report by University of California at Davis scientist, Thomas Cahill.10 Dr. Cahill'steam, known as the DELTA group, working in conjunction with the U.S. Department of Energy,took measurements one mile north of Ground Zero on a 15-story tall building. They found thatthe amount of pulverized “ultra-fine particulate matter” emitted from the World Trade Center(WTC) destruction, was “unprecedented.” And according to the Los Angeles Times, “. . .outdideven the worst pollution from the Kuwait oil fields fires.”11 These measurements were taken inearly October 2001, at the very same time that the EPA was reiterating that the air was safe.

According to Cahill, the EPA did not test for this level of very fine particulate matter (.25to .09 microns), only for larger particles with less sensitive equipment. “The EPA could haveidentified these particles within a couple of days if they looked for them, but they didn’t.”12 Dr.Cahill noted in the article that EPA scientists have acknowledged that the ultra-fine particles arethe “most hazardous” because they can evade the body’s protection and lodge deep inside the

13 Ibid.14 “Off icial Tr anscript,” EPA National Ombudsm an First Investi gative Heari ng on W orld Trade CenterHazardous Waste Contamination,” February 23, 2002, testimony of Dr. Thom as Cahill, Professor, Universityof California at Davis, p. 15-72.15 Jones, Charisse, “Anxieties Over Toxins Rise at Ground Zero,” U.S.A Today, February 7, 2002.16 Mugdan, Walter, Regional Counsel U.S. Environmental Protection Agency Region 2, “Environmental LawIssues Raised by Terrorist Events in 2001,” January 2002 , p. 13. 17 Ne w Y ork En vironmental L aw and Justice P roject, “W orld Trad e Ce nter In ciden t Env ironmental H ealthConcerns: Information Provided by U.S. Environmental Protection Agency Region II in Response to FOIARequest Submitted by New Y ork Environmental L aw and Justice P roject. Wo rk in P rogress.” See websitewww.nyenvirolaw.org.18 Go nzales, Jua n, “A To xic N ightm are at D isaster S ite: Air, W ater, So il Contaminated,” New York Daily

News, October 26, 2001.19 Je nkins, Cat e, (Ph .D., En vironmental Sc ientist WI B, HWID, Off ice of Sol id Was te, U. S. EPA)“Memorandum, December 19, 2001.” See also Jenkins, Cate, (Ph.D., Environmental Scientist WIB, HWID,Office of Solid Waste, U.S. EPA) "Memorandum, Subject: Status of Air and Dust Asbestos Testing AfterWTC Collapse, M arch 11, 2002 ."

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lungs.13 An extended commentary by Dr. Cahill on these topics was made at the February 23,2002 EPA National Ombudsman Hearing in New York City.14

It stands to reason that if there were problems related to outdoor air, problems related toindoor air would necessarily arise. An EPA Region II Spokesperson acknowledged that verypoint when she said recently, “We [the EPA] have from the start been clear that what we foundon the outside was likely to have gotten inside people’s apartments.”15

The EPA Misleads Further

The EPA also misled the public about air quality by mischaracterizing its own data andignoring or withholding other critical data that contradicted Ms. Whitman’s assurances of airsafety. Ms. Whitman’s statement, which continues to be echoed repeatedly by agency officialsat every level of government, was made even as EPA officials possessed evidence thatcontradicted her statement.

Ms. Whitman’s statement mischaracterizes EPA’s own data. For example, in a January25, 2002 speech given by Walter Mugdan, EPA Region II Counsel, he states, “. . .a significantnumber of the WTC bulk dust samples that we analyzed did have more than 1% asbestos.”16 If asignificant number of those dust samples did have more asbestos than the EPA's own so-called"clearance level," it stands to reason that the environment is not safe.

Further, in a document detailing information provided by EPA Region II in response to aFreedom of Information Act (FOIA) request, the New York Environmental Law and JusticeProject cites numerous examples of data points that exceeded EPA “levels of concern.”17 JoelKupferman, Executive Director of the New York Environmental Law and Justice Project (inaddition to other experts) has stated repeatedly that these details contradict Ms. Whitman’ssafety assurances.18 A 22-year veteran of the EPA’s Hazardous Waste Identification Division,Dr. Cate Jenkins, has issued a memo challenging EPA’s testing methods and “clearance levels”for hazardous materials, which she argues belie an honest assessment of safety. 19

20 Jenk ins, C ate, (P h.D., E nvironmental S cientist WI B, HWID, Off ice of Sol id Was te, U. S. EPA)“Memorandum, Subjec t: Prel iminary Asses sment, Janu ary 11, 2 002 .” See also Je nkins, Cate , (Ph.D .,Environmental Scientist WIB, HWID, Office of Solid Waste, U.S. EPA) "Memorandum, Subject: Status ofAir and D ust Asbestos Testing After WTC Collapse, M arch 11, 2002 ."21Haughney, Christine, “In N.Y., Taking a Breath of Fear: Illnesses Bring New Doubts About Toxic ExposureNear Ground Zero,” Washington Post, January 8, 2002.22 Schneider, Andrew, “Public Was Never Told That Dust from Ruins is Dangerously Caustic,” St. Louis Post

Dispatch, February 10, 2002. Also see asbestos effects noted in U.S.EPA Federal Register, Vol 51, No. 19;1/29/86; Asbestos Proposed Mining Restrictions and Proposed Manufacturing, Importation and ProcessingProhibitions.

5

Other government officials also provided the EPA with data challenging Ms. Whitman’ssafety assurances. For example, the above mentioned GZTF report by Chatfield and Kominskywas given to EPA officials by the researchers (who are long-time EPA contractors) on October12, 2001. To this day, the EPA has neither commented on nor taken any action with respect tothe findings of elevated levels of hazardous materials in this report. According to an analysis byDr. Cate Jenkins, Chatfield and Kominsky found 9 asbestos strands to every one found by theEPA. She went on to argue that those levels of asbestos in Lower Manhattan are comparable orin excess of those found in Libby, Montana, a recently-designated federal Superfund site.20 Someof the asbestos utilized in the World Trade Center was made in Libby, Montana. A plethora ofnews reports have detailed the widespread public health problems experienced by Libbyresidents such as lung cancer, asbestosis and mesothelioma.

Beyond downplaying its own findings, and ignoring other contradictory findingspresented to it, the EPA has withheld important data from the public. Specifically, it took aFOIA request by the New York Environmental Law and Justice Project to get test resultsshowing dangerous levels of hazardous materials in outdoor ambient air. The EPA claimed thatits failure to make this information available was an “oversight”21

Additionally, the St. Louis Post Dispatch reported in February that the United StatesGeological Survey (USGS), using the country’s best detection equipment and methods, foundpH levels in World Trade Center dust that are “. . .as corrosive as drain cleaner” and passed thisinformation along to health experts at the EPA on a “government-only” website. In the article,Andrew Schneider (the paper’s Pulitzer Prize-winning environmental journalist) charges “theUSGS data was not released by the EPA nor apparently were the environmental agency’s owntest results on the dust.” The EPA claims to have released this data to the public, but whenSchneider reviewed all of the EPA’s statements made since 9/11, he found nothing that warnedof these high pH levels. According to the New York Committee for Occupational Safety andHealth (NYCOSH), such dust “once it’s in contact with moist tissue – the throat, the mouth,nasal passages, the eyes and even sweaty skin – it becomes corrosive and can cause severeburns.”22 To be clear, the EPA admits that it had this data, but continued to state that the air wassafe.

In addition to directly withholding information, the EPA has also effectively withheldcritical data by providing disparate documents in response to direct requests made by Congressand via the FOIA process. For instance, in response to a request for information made byCongressman Nadler on January 23rd, Ms. Whitman replied that “the City assumed responsibility

23 Letter from Christine Todd Whitman (EPA Administrator) to Congressman Jerrold Nadler (NY-08),February 22, 2002.24 Cardwell, Diane, “Hearing Brings More Debate over Ground Zero Air Quality,” New York Times, February24, 2002.25 See above Schneider, Andrew, “NY Officials Underestimate Danger” and EPA Region II Press Release “EPAStatem ent.”26 Lyman, Francesca, “Yearning to Breathe in a Toxic Zone: Four Months on, WTC Attacks Still HauntingNew Yorkers – And Their Health,” MSNBC, January 11, 2002.

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for indoor testing and reoccupancy of building.”23 However, in response to the previouslymentioned FOIA request, documents indicated that the EPA did environmental assessments of atleast some residential and commercial buildings (at the request of the Ground Zero ElectedOfficials Task Force), and that On-Scene Coordinators were working in lower Manhattan. Otherdiscrepancies included information regarding the type of testing methods used to analyze dustsamples in a downtown federal building (EPA's own building), and Department of Healthrecommendations for residents looking to reoccupy their homes.

Finally, the EPA has refused to participate in its own public accountability process. Inorder to further investigate the environmental conditions in New York City post 9/11,Congressman Nadler hosted two EPA Ombudsman hearings in the Spring of 2002. The Officeof the EPA Ombudsman acts as an EPA watchdog, fielding complaints regarding the work of theEPA and making appropriate recommendations to the EPA Administrator. In the last four years,over one dozen National Ombudsman Investigative Hearings have been held, dealing withcomplaints regarding the EPA’s handling of hazardous waste and material. As a result of theseprevious hearings, the EPA has altered and reversed decisions, and agreed to perform moredetailed environmental testing and remediation.

The situation at the Ombudsman hearings regarding Ground Zero proved to be wildlydifferent than those of the past. EPA officials failed to attend the Ground Zero meetingsa firstin the history of such hearings. “We’ve had Ombudsman hearings all over the country,” saidRobert Martin, the EPA Ombudsman, “and never before have the government officials who’vebeen involved in the testing and work refused to show up. I think they haven’t shown up becausethey’ve got something to hide.”24 In addition, the EPA has not yet responded to requests madeby Robert Martin for information in the form of interrogatories and requests for the productionof documents, thereby further hindering the information-gathering process.

The EPA Passes the Buck to the City

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

As was previously mentioned, it first became clear to the public in mid-January, 2002that the EPA had allowed the City of New York to handle indoor air quality.25 An EPAspokesperson stated, on January 11, that “. . .indoor air is beyond EPA’s jurisdiction.”26 An EPA

27 Rogers, Josh, "Nadler says EPA is Passing the Buck Downtown," Downtown Express, January 22, 2001.28 Miele, Joel (Commissioner, NYC DEP) “Testimony before the United States Senate Subcommittee on CleanAir, W etlands, and Climate Change,” February 11, 2002. 29 Ibid.30 NYC DEP, “Notice to Building Owners Located South of 14th Street, Manhattan,” September 16, 2001.

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Region II spokesperson went a step further later in January and stated the EPA had taken noresponsibility for indoor air quality and was, in fact, satisfied by the City’s work. Thatspokesperson stated, "The EPA's job was to monitor outdoor air. Monitoring indoors--thatwasn't our job. That's what the city took care of." According to the article, she added "that shefelt the city did a good job of testing and monitoring indoor air."27

However, the City of New York has demonstrated that it has not done the job properly. At a U.S. Senate Subcommittee field hearing on February 11, 2002, New York City Departmentof Environmental Protection (NYC DEP) Commissioner Joel Miele admitted that the DEP wascapable of handling the job when he noted that available hazardous materials staff was ". ..adequate except [emphasis added] in the case of a catastrophic event such as occurred here" andthe agency is primarily a “water and sewer agency.”28

Commissioner Miele went on to say that although the City had taken the lead on indoorair, it actually placed the burden for testing and remediating indoor common spaces on thelandlords and property owners.29 The City has made very little effort to ensure that such testingor remediation actually took place, other than issuing one “public notice” on the subject.30 Theissue of DEP enforcement of building owner's responsibility for common areas caused a greatdeal of stir at the Senate Subcommittee hearing when Comissioner Miele first stated on therecord that his agency had enforced the law, and then, after being heckled, admitted that it hadnot:

Senator [Joseph] Lieberman: You're saying that every building was tested, e verybuilding had its indoor air tested before people were allowed to go back in?

Dr. Miele: T hat's the ci ty regulation. That's correct. sir. [Interruption fromaudience.]

[Senator Lieberman questioned another witness for a moment.]

Senator [Hillary Rodham] Clinton: . . .we had some vocal audience member whoresponded when you said that's city regulation. Can you sit there today and tell usthat every landlord and every building complied with the city regulations?

Dr. Miele: No, I can't tell you that. But the reason for the that, in large measure ,has been the fact that we've let people back into buildings, that is to cl ean up thebuildings, and then when we're comfortable that they've got the tes ts, let peo pleback in. One of the things we did to try and facilitate it was to let people get backin when we were comfortable that they ha d cleaned up the buildings but before

31 Miele, Joel (Commissioner, NYC DEP) “Testimony before the United States Senate Subcommittee on CleanAir, Wetlands, and Climate Change,” February 11, 2002.32 Ne w Y ork City D epartment o f He alth Pr ess Re lease, "N YC He alth D epartment D istrubu tes H ealthRecommendations for Residntial and Commercial Reoccupation," September 22, 2001.33 Let ter from R. Ra dhakrishman (P.E., Director of NYC DEP’s Asbest os Control Program) to BuildingOwners, February 12, 2002. 34 Ibid. Also, see AHERA 40 CFR 763 Appendix C to subpart E Asbestos Model Accreditation Plan. Underthe regulations, public and com mercial bu ilding is defined as: the interior space of any building which is not a school building. . ..The term includes, but is not limited to:industrial and office buildings, residential apartment buildings and condominiums of 10 or more dwelling units,government owned buildings, colleges, museums, airports, hospitals, churches, preschools, stores, warehousesand factories. Interior space includes exterior hallways connecting buildings, porticos and mechanical systemsused to condition interior space.35 Jenki ns, C ate, ( Ph.D., Envi ronmental S cientist WI B, HWID, Off ice of Sol id Was te, U. S. EPA)“Mem orandum, December 19, 2001” See also Jenkins, Cate, (Ph.D., Environmental Scientist WIB, HWID,Office of Solid Waste, U.S. EPA) "Memorandum , Subject: Status of Air and Dust Asbestos Testing After WTCCollapse, M arch 11, 2002 ."36 Berger , El izabeth (resident), “Testimony b efore the Un ited States Senate Subco mm ittee on Clean Air,Wetlands, and Climate Change,” February 11, 2002.37 Miele, Joel (Commissioner, NYC DEP) “Testimony before the United States Senate Subcommittee on CleanAir, Wetlands, and Climate Change,” February 11, 2002. Remark made during the question and answer period.38 Letter from Joel Miele to Residents of Lower Manhattan, October 25, 2001.39 EPA Region II Press Release, “EPA and OSHA Web Sites Provide Environmental Monitoring Data FromWorld T rade Center And Surrounding Areas: Data Confirms No Significant Public Health Risks; RescueCrews and Nearby Residents Should Take Appropriate Precautions,” October 3, 2001.

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they had submitted the formal permit application to u s and got ten the pe rmitsfrom us.31

A September 22, 2002 DOH press release confirms that while the City required thatbuildings be certified for issues such as "structural stability," no such certification was requiredfor environmental safety.32 The only record of any enforcement of common space testing andremediation seen to date is a letter sent by DEP to building owners the day after the Senatehearing, requesting documentation of cleanup measures taken.33 Moreover, that letter informedthe landlords and property owners that they are only responsible for common or public areas ofbuildings.34 And, according to some experts, the type of testing that DEP instructed buildingowners and managers to use would not properly detect the hazardous materials.35

Testing and remediating of actual apartments and private workspaces has been left up toindividual tenants.36 There has been no enforcement whatsoever of any rules or regulation withrespect to testing or cleaning indoor private spaces.37

As the City placed the burden for testing and remediating indoor private spaces onindividual tenants, it referred individuals for advice (though no other assistance) to the NewYork City Department of Health (NYC DOH) for recommendations on re-occupying homes andbusinesses.38 The EPA, on its website and in public press releases, also referred residents tothese recommendations39, which state that “based on the asbestos test results received thus far,there are no significant health risks” and advises people to remove dust using a “wet rag or wet

40 “Reco mm endations f or Peo ple R e-Occupying C ommercial B uildings an d R esidents R e-Entering T heirHomes,” (www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html), printed on January 24th, 2002 3:42pm.41 Callahan, Kathleen (Acting Deputy Regional Administrator, EPA Region II), “Testimony before the NewYork City Council Environmental Protection Committee,” December 11, 2001.42 Jenkins, Cate (Ph.D., Environmental Scientist, Waste Identification Branch, HWID, Office of Solid Waste,U.S. EPA), “Memorandum : World Trade Center Asbestos” to Lillian Bagus and Robert Dellinger, HazardousWaste Iden tification Bran ch, D ecem ber 3 , 200 1 an d Jen kins, C ate (Ph .D., E nvironm ental Scien tist, Wa steIdentification Branch, HWID, Office of Solid Waste, U.S. EPA), “Memorandum to Arts, Crafts and TheaterSafety in NYC: EPA National Standards vs. New York City Guidelines,” November 15, 2001.43 Henshaw, John, Assistant Secretary for OSHA, Letter to Mr. Lowell Peterson, January 31, 2002.44 Jones, Charisse, “Anxieties Over Toxins Rise at Ground Zero,” U.S.A Today, February 7, 2002.45 Odesey Capital Group III, L.P. d/b/a Cascade Apartments v. OSHA Review Commission and Secretary ofLabor Bo 01-1030, 12/2001 U.S. App, Lexis 27797; where the OSHA Commission ruled that “an owner whofails to use specified testing methods to identify the presence of ACM fails to rebut the presumption that ACMis present in the building.” And United State v. Weintraub Nos. 99-1691 (L) 00-1368, 00-1385, 2001 U.S. App,Lexis 24921 (2d Cir Nov 19, 2001) A j ury found defendants guilty of criminal violations of the asbestosNESHAPS and EPA regulations for improper handling and removal of ACM and failure to notify the EPA andstate agencies.46 Letter from Christine Todd Whitman (EPA Administrator) to Congressman Jerrold Nadler (NY-08), February22, 2002.

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mop.”40 EPA Region II Acting Deputy Regional Administrator Kathleen Callahan reiterated thatdowntown tenants should look to the DOH guidelines for cleaning their indoor spaces intestimony before the New York City Council on December 11, 2001.41

This advice, which details unsafe and illegal cleaning methods,42 directly contradicts aletter from John Henshaw, Assistant Secretary for OSHA, which states, “in that the materialscontaining asbestos were used in the construction of the Twin Towers, the settled dust from theircollapse must be presumed to contain asbestos” and therefore, OSHA federal regulations applyto the remediation of this material (emphasis added).43 The DOH advice ironically alsocontradicts a statement of dubious veracity from an EPA Region II Spokesperson who said in aFebruary 2002 U.S.A Today article, “We have from the start been clear. . .they [those in LowerManhattan] could assume that the material is asbestos-containing and that they needed to get thatmaterial cleaned up using professional contractors.”44 If, in fact, the dust is presumed to be“asbestos containing material,” its handling and removal is regulated under strict federalguidelines.45

Despite these facts, EPA Administrator Christine Todd Whitman defended her agency’sactions of directing people to the City DOH’s unsafe guidelines. In a February 22, 2002 letter toCongressman Jerrold Nadler (NY-08), Whitman wrote “In regard to your concern that the EPAguided residents to the New York City Health Department for direction on cleanup of homes,this was appropriate since traditionally, the health agencies make recommendations to the publicon health-related matters.”46

As was previously mentioned, the City did request an extremely limited indoor testingprogram be done by ATSDR. However, details about this program are still not known. InOctober, November, and December, 30 New York City apartment were tested for hazardous

47 New York City Department of Health Press Release, “NYC Department of Health Presents Findings FromIndoor Air Samplings in Lower Manhattan,” February 8, 2002.48 “Of ficial Tra nscript,” EPA Nat ional Ombuds man Fi rst I nvestigative Hea ring on Worl d Tr ade Cent erHazardous Waste Contamination,” February 23, 2002 . See specifically testimony from downtow n residentsand business ow ners. 49 Statement taken from Constituent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08)50 "A Community Needs Assessment of Lower Manhattan Following the World Trade Center Attack," Centersfor Disease Control and Prevention, New York City Department of Health, December 2001.51 Ibid.52 EP A N ational Om budsman S econd I nvestigative He aring on W orld Trad e Ce nter H azardous W asteContam ination ,” February 23 , 2002. Testimony of Andrew Mark, resident, p. 436-438.

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materials, though the nature of those tests are unclear, and the full results will not be availableuntil Spring 2002.47

Result of EPA Misdeeds: Inadequate Indoor Hazardous Materials Remediation and aThreat to Public Health

As a result of the EPA’s misleading statements about air quality and because it allowedthe City of New York to handle matters related to indoor environments with no oversight, therehas been inadequate hazardous materials testing and remediation inside residential andcommercial buildings in Lower Manhattan – putting the public health at risk.

A significant number of downtown buildings simply have not been tested or remediatedfor hazardous materials properly, or at all, in public and/or private areas.48 Congressman JerroldNadler’s District Office receives calls nearly every day from constituents reporting this fact, andit has been well documented in the press.49

Repeated assurances of air quality “safety” have resulted in vast numbers of downtownresidential and commerial indoor spaces being cleaned as if the dust did not contain hazardousmaterials, despite the fact that official documents note that the law requires a contrarypresumption. Hearing such assurances stopped many residents and employers, or buildingowners or managers, from looking for special cleaning or remediation procedures. This problemwas compounded by the fact that about 40% of downtown residents reported receivingabsolutely no instructions or protocols for cleanup or hazardous materials remediation.50 Theysimply went about doing a “normal” house or office or building cleaning for their indoorspaces.51

As Andrew Mark, a resident of Pine St. in downtown Manhattan, testified at an EPAOmbudsman hearing, “Never did I receive anything from the EPA that said, 'Gee, just to play itsafe, why don’t you take the following precautions.' Nothing, nothing. We were never told, A)to leave the area, B) take any precautions whatsoever in terms of minimizing the potentialimpact.” Mr. Mark went on to testify that as he wasn’t aware that the dust could containhazardous materials, he had his regular cleaning ladyclearly not a trained professional inhazardous material removalclean the dust from his apartment. 52 Clearly, such spaces cannotbe considered properly remediated or safe.

However, even where building owners, managers and tenants understood that thissituation wasn’t “business as usual,” there were still many problems.

53 Lyman, Francesca, “Yearning to Breathe in a Toxic Zone: Four Months on, WTC Attacks Still HauntingNew Yorkers – And Their Health,” MSNBC, January 11, 2002.See specifically comments by Mr. Steve Swaney.54“Official Transcript,” EPA N ational Omb udsman Firs t Inve stigative Heari ng on W orld Trade CenterHazardous Waste Contamination,” February 23, 2002 . See for example testimony of Ms. Dawn Pryor, resident,p. 183-196 and Ms. Mary Perillo, resident, p. 197-228.55 “Offi cial Transc ript,” EPA Nati onal Ombudsman Fir st Investigative Hear ing on Wor ld Tra de CenterHazardous Waste Contam ination ,” February 23, 2002. See specifically testimony from downtow n residentsand business ow ners. 56 Drenger, Ronald, “Tenant-Landlord Battles Heat Up Downtown,” Tribeca Trib, January 4, 2002.57 Rayman, Graham, “Tenants vs. Landlord In WTC Cleanup Case,” Newsday (Queens Edition), September15, 2001.58 Press Release, "Silver, Nadler Denounce 'Shameful' Landlord in Rent Dispute," April 5, 2002.

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With respect to indoor common spaces, where building owners and managers were maderesponsible for testing and remediation, there have been mixed results. While some buildingowners and managers have dutifully attempted to clean the common areas, many have failed todo the job (or do the job appropriately). Presumably, this is because such a job was beyondtheir financial or other capacity to do so, and the City's lax enforcement made it easy to avoidgetting caught when they did shirk the responsibility .

Irresponsible or unscrupulous building owners and managers have no doubt found it quiteeasy to skirt the NYC DEP’s scant enforcement measures – either by remediating improperly ornot taking any action with respect to testing or remediation.53 Even as tenants in these buildingshave found extremely high levels of hazardous materials in common spaces through their privatehiring of professional contractors, their numerous calls to the NYC DEP “helpline” to reportbuilding owners’ inaction has produced little, if any, governmental response.54 In fact, mosttenants have repeatedly expressed extreme frustration when describing their attempts to accesshelp from DEP.55

A particularly problematic issue is the fact that there is an inherent conflict of interest forbuilding owners to actually do testing, which is expensive, because it might result in themhaving to hire a professional hazardous materials contractor to do proper remediation, which iseven more expensive. Tenants have been forced to go on rent strikes to compel their buildingowner to test and remediate properly,56 and at least one building (80 John Street) has alreadygone to court.57 In the case of 50 Battery Place, the landlord (DeMatteis Battery ParkAssociates, LLC) gave a considerably larger rent reduction to those tenants who didn't go on arent strike than those who chose to settle the case. Needless to say, those tenants who stayed inthe suit to pursue proper testing and remediation were given no rent reduction at all.58

In a related problem, building owners may use testing methods that are either incapableof finding the type of hazardous materials emitted from the World Trade Center (see above-mentioned reference to problematic DEP-recommended testing approaches), or, if one takes amore cynical view, specifically designed to find nothing dangerous that would require expensiveremediation. For example, in the case of Tribeca Tower (105 Duane Street), buildingmanagement argued that by doing “200 ambient air tests” it had acted “extremely responsive[ly],despite the fact that tenants (supported by private contractors and an EPA scientist) have argued

59 Drenger, Ronald, “At Tribeca Tower, Tenants Press Health Concerns,” Tribeca Trib, January 4, 2002.60 Johnson, Kirk, “With Uncertainty Filling the Air, 9/11 Health Risks Are Debated,” New York Times, February8, 2002.61Berger, Elizabeth (resident), “Testi mony before the Un ited States Senate Subco mm ittee on Clean Air,Wetlands, and Climate Change,” February 11, 2002.62 EP A N ational Om budsman F irst Inv estigative H earing on W orld Trade Ce nter H azardous W asteContam ination ,” February 23, 2002. Testimony of Jeff Micheli and David Harvey, Tradewinds Environm ental,p. 105-106.63 Statement taken from Constituent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08)and “Official Transcript,” EPA National Ombudsm an First Investigative Hearing on W orld Trade CenterHazardous Waste Contamination,” February 21, 2002. See for example testimony from Dawn Pryor, resident,p. 183-196.

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that hazardous materials in settled dust won’t show up in air [passive] tests, and that onlysensitive dust sampling or aggressive air sampling would yield useful information.59

With no guidance other than the lenient DOH guidelines, individual residentialtenants were left to their own uninformed devices when deciding how to deal with the WTC dustin their apartments.60 One resident described the chaos that reigned:

We reluctantly made our own rules, divined from press reports, high schoolscience as we remembered it and the advice of friends and neighbors. But eventhat was mixed. One scientist friend had his apartment tested and declared it safefor his family; the managing agent of his building, however, reported high levelsof asbestos and lead. In the end, 248 stuffed animals, 8 handmade baby quilts, 5mattresses, a trousseau’s worth of sheets and towels, a kitchenful of food and 13leaf-and-lawn bags of toys went into our trash, but not our books, draperies andupholstered furniture or our clothes, though the bill to dry clean them industriallywas $16,500 . . .. We washed the walls, but didn’t repaint. Some people we knowrepainted, but kept their mattresses. Some people kept their stuffed animals butthrew away their furniture. Some people kept what they couldn’t bear to lose andgot rid of the rest. We have still not decided what to do about our floors: willstripping, sanding and resealing them contain the toxic mix of asbestos,fiberglass, concrete, human remains, heavy metals and the vague “particulates,”or just release more of it into our indoor air?61

As the responsibility for indoor private spaces has been left to individual residential andcommercial tenants, so too have been the associated costs. It has been estimated that aprofessional remediation for hazardous materials in an average apartment in Lower Manhattanwould cost $10,000 to $30,000, and that does not include the cost of testing.62 Covering the costof testing and remediation in indoor private spaces would necessarily come from one of threesources: the tenant’s own pocket, private insurance (if available), or a government or reliefagency.

An expense of $10,000 to $20,000 is terribly burdensome, if not prohibitive, forindividual tenants (and particularly residents) if it must come out of their own pockets. Therefore, where no other funds were available for proper testing or remediation, tenants eitherdid not remediate or did not remediate properly.63 In some cases, residents who had nowhereelse to turn financially, accepted help from volunteer college students and members of the

64 Cowan, Alison Leigh, “Doing Good Deeds, and Windows,” New York Times, December 4, 2001 and Conley,Chris, “Dade Sends Help to New York City,” Dade County Sentinel, October 31, 2001.65 Missouri Baptists Press Release, “Missouri Disaster Relief Works Assist in New York Cleanup,” November20, 200. Website address: www. Mobaptist.org/releases/2001/nycleanup.htm. (Note particularly pictures ofworkers without proper protective gear).66 Statement taken from Constituent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08)and “O fficial T ranscript,” E PA Na tional Om budsman F irst Investigative Hearing on W orld Trade CenterHazardous Waste Contamination,” February 23, 2002. See specifically testimony from downtow n residentsand business owners.67 Statement taken from Constituent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08)and “Official Transcript,” EPA National Om budsman F irst Investigative Hearing on W orld Trade CenterHazardous Waste Contamination,” February 23, 2002. See specifically testimony from downtow n residentsand business owners.68 Haughney, Christine, “In N.Y., Taking a Breath of Fear: Illnesses Bring New Doubts About Toxic ExposureNear Ground Zero,” Washington Post, January 8, 2002.69 “O fficial T ranscript,” E PA Na tional Om budsman F irst Inv estigative H earing on W orld Trade C enterHazardous Waste Contamination,” February 23, 2002. For examples see testimony of Ms. Catherine Hughes,resident, p. 317-318; testimony of Mr. Cooper, p. 681-682; testimony of Mr. George Tabb, resident, p. 151-152.70 “Offi cial Transc ript,” EPA Nati onal Ombudsman Fir st Investigative Hear ing o n World Trade CenterHazardous Waste Contamination,” February 23, 2002. For examples see testimony of Former City CouncilWom an Kathryn Freed, p. 243-244; and testimony of Ms. Elona Klauppe [sic] (Ilona Kloupte), resident,p. 658-659; and testimony of Dawn Pryor, resident, p. 183-196.71 Statement taken from Constituent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08).

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Southern Baptist Convention.64 These untrained volunteers came into downtown apartments andcleaned, using methods as or less safe than the dangerous NYC DOH guidelines, and did sowithout proper protective gear.65 To the extent that untrained tenants or relief workers havecleaned indoor spaces based on the NYC DOH guidelines or no guidelines at all, those spacescannot be considered adequately remediated or safe.

According to tenants who do possess private insurance, insurance carriers havehaphazardly settled claims with widely varying amounts paid.66 In many cases, the amountshave been woefully inadequate.67 Claims have been denied for a variety of reasons. One reason,described by a tenant in the Washington Post, describes a horrendous, vicious circle. Mr.George Tabb, a Tribeca resident, reported that his “. . .insurance company won’t pay to clean hisapartment of dust and asbestos until his landlord cleans up the building’s ventilation system. Management started a cleanup last month, but not an asbestos abatement.”68

Even more disturbing is the fact that some insurance companies have denied claims (forrental assistance, air purifiers, and hazardous materials testing and remediation) to both tenantsand building owners on the sole basis of EPA’s safety assurances.69 Individual tenants have alsoreported that relief agencies, including the Red Cross, and the Federal Emergency ManagementAgency (FEMA) have also denied assistance for rental assistance and proper testing andremediation of common and private spaces on the basis of Ms. Whitman’s statement.70

FEMA, in its “case-by-case” approach, has provided some assistance to individualresidents for “cleaning,” though many individuals have reported having their application deniedor have received very few funds.71 Moreover, FEMA announced in one of its own bulletins, thatresidents could be eligible for such funds, but only if the individual is willing to forgo rentalassistance:

72 FEMA, “Disaster Assistance Guide: United We Stand,” New York, November 2, 2001, FEMA Issue 2.73 Statement taken from Constituent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08).74 Letter from R. R adhakrishman (P.E ., Direc tor of NY C D EP’s As bestos Co ntrol Program ) to BuildingOwners, February 12, 2002. 75 Ber ger, Elizabeth (resident), “Testimony before the United States Senate Subco mm ittee on Clean Air,Wetlands, and Climate Change,” February 11, 2002.

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If you we re a ffected by the World Trade Center a ttack and receive rentalassistance from the Federal Emergency Manageme nt Agency (FEMA), you mayuse the funds to clean your residence. ‘ We’re giving people the option to decidewhat makes most sense for them – either cleaning their dwelling s or findingsomeplace else to live,’ said Michael Cosbar, FEMA housing officer. Instead ofusing the chec k to rent a nother pl ace, renter s can use the funds to clean theirresidences. However, if you use the funds for cleaning, you will be ineligible formore FEMA rental assistance because you will be able to move bac k into yo urhome.72

Unfortunately, for those lower income individual s wh ose apar tments ar e highlycontaminated (and t herefore are neither ha bitable nor able to be remediated with the meagerfunds provi ded), thi s situation present s an unten able dile mma. FEMA r ental as sistance isquickly running out for these individuals and therefore, their temporary residences are no longergoing to be available to them. The worst case result: either homelessness or forced habitation ofresidences known to be a direct health threat.

Commercial tenants, particularly smaller businesses, have had similar problems to thoseof the residential tenants (large financial services firms were necessarily in better shape -- theyhad the means to clean their own spaces and the leverage to get building owners to clean thecommon areas). Small commercial tenants were given the same, inadequate cleaning protocols,have lacked sufficient funds (most have received only loans, not direct grant assistance), andhave had insurance claims denied due to Ms. Whitman's safety assurances. They also had thesame trouble getting their building owners and managers to clean common spaces. Butmoreover, inaction on the part of less scrupulous employers or business owners have leftindividual employees at these firms with nowhere to turn if their employer chose not to test andremediate properly or at all. Congressman Nadler's office has received numerous calls fromemployees of both private and public entities who are concerned about the indoor air in theirworkplace, but fear job loss if they "make too many waves."73

Each of the problems noted above (and there are undoubtedly plenty of others) hascontributed to the fact that there has been utterly uneven, if not totally inadequate, testing andremediation of hazardous materials in buildings in Lower Manhattan. This fact, in and of itself,presents the most troubling issue: even when public spaces or single apartments or offices areremediated appropriately, ventilation systems can move hazardous materials from unremediatedspaces to those already remediated.74 As one downtown resident put it, “Indoor air quality is atouchy issue in our building. Converted in the late 1970’s, we have a primitive central air systemthat circulates air from apartment to apartment. Some people in our building hired professionalcleaners. Others did it themselves.”75 Therefore, tenants who may believe they are living orworking in a “safe” environment because they have paid considerably for proper remediation,may well be living in recontaminated areas.

76 42 U.S.C 9604 . The President is authorized to act: 1) Whenever (A) any hazardous substance is released orthere is a substantial threat of such a release into the environment, or (B) there is a release or substantial threatof release into the environment of any pollutant or contaminant which may present an imminent and substantialdanger to the publi c healt h or welfare, the Pres ident i s authori zed to act , co nsistent with t he nationalcontingency plan, to remove or arrange for the removal of, and provide for remedial action relating to suchhazardous substance, pollutant, or contaminant at any time…or take any other response measure consistent withthe national contingency plan which the President deems necessary to protect the public health or welfare orthe environment. Th is authority is a lso cited in 40 CFR 300 .130 (c). This au thority is deleg ated to the EPAAdministrator pursuant to Executive Order 12580, later amended by Executive Order 12777.77 CERCLA is codified in Chapter 103 of Title 42 U.S.C. The NCP is authorized in 42 U.S.C 9604; 40 CFR300.78 40 CFR 300.135 (a)79 Whitman, Christine Todd, Letter to Congressman Jerrold Nadler, transmitted via fax February 22, 2002.80 42 U .S.C 5121 , et seq. The Stafford Act is the statu te under which FEMA operates. 81 Whitman, Christine Todd, Letter to Congressman Jerrold Nadler, transmitted via fax February 22, 2002.82 44 CFR 206.5 (f)

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It goes without saying that hazardous materials emitted from the World Trade Center thatremain inside buildings in Lower Manhattan pose a potentially serious public health threat toresidents, workers and visitors. This threat has been detailed in various government hearingsand numerous press accounts by a wide array of pre-eminent public health experts.

The EPA’s Actions Violate Federal Law

By allowing indoor air quality in residential and commercial buildings to be handled bythe City of New York, and by not properly exercising its oversight authority, the EPA violatedfederal law. The EPA has the clear authority to respond to the release of hazardous substancesthat may present an imminent and substantial danger to public health.76 The NationalContingency Plan (NCP), which is administered by the EPA and authorized by theComprehensive Environmental Response, Compensation, and Liability Act (CERCLA), is thefederal plan for responding to such a release.77 The NCP lays out specific procedures andguidelines, including the designation of an On-Scene Coordinator (OSC) who is responsible fordirecting response efforts and coordinating all other efforts at the scene of a discharge orrelease.78 The federal regulations make clear that the EPA has the authority to respond to therelease of hazardous substances pursuant to the NCP, and that this authority is carried out byEPA On-Scene Coordinators.

When asked why the City has taken the lead on indoor air, and how that decision wasmade, the EPA has stated that mission assignments were made by FEMA.79 The EPA claimsthat it is operating at the World Trade Center site under the Federal Response Plan (FRP), theFEMA plan which establishes a process for coordinating federal assistance pursuant to theStafford Act.80 EPA claims that, under the FRP, local governments have primary responsibilityfor responding to an event.81

However, EPA’s statement that it is merely following FEMA and the Federal ResponsePlan, and its characterization of this plan, is misleading for a number of reasons. First, theStafford Act does not supercede the EPA statutes.82 All activities under FEMA must comply

83 44 CFR 10.484 Federal Response Plan: Basic Plan, April 1999, p. 11. (http://www.fema.gov/r-n-r/frp/frpbpln.htm)85 Ibid.86 40 CFR 300.3 (d)87 Ibid.88 Federal Response Plan: Basic Plan, April 1999, p. 14. (http://www.fem a.gov/r-n-r/frp/frpbpln.htm). Alsocited at 40 CFR 300.130 (i).89 Ibid., p . 28. 90 “Official Transcript” U.S. Senate Committee on Environment and Public Works, Subcomm ittee on CleanAir, Wetlands, and Climate Change, New York, NY. Testimony of Jane M. Kenny, Regional Administrator,U.S. EPA Region II, February 11, 2002, p. 64.91 42 U.S.C 7603

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with national environmental policies.83 The Federal Response Plan also clearly states that otherfederal emergency response plans cannot be disregarded, but rather implemented concurrentlywhen there is an incident involving hazardous substances.84 The FRP specifically lists the NCPas one such emergency response plan.85 Second, and most importantly, the FRP actuallytriggers the National Contingency Plan.86 According to the Code of Federal Regulations, “theNCP applies to and is in effect when the Federal Response Plan and some or all its EmergencySupport Functions (ESFs) are activated.”87 Therefore, if the EPA is not acting pursuant to theNational Contingency Plan, it is in clear violation of the law.

Third, even if, for the sake of argument, the Federal Response Plan is the only plan ineffect (which is clearly not the case), federal assistance is coordinated along thirteen EmergencySupport Functions. The EPA is the primary agency responsible for coordinating EmergencySupport Function #10: Hazardous Materials.88 As the primary agency, the EPA has “operationalresponsibility” for orchestrating federal agency support and managing mission assignments inthis area.89 The EPA has no legal basis to shirk its responsibility in this regard. In fact, EPARegion II Administrator, Jane Kenny, testified before the U.S. Senate that “Acting on FEMA’smission assignments, EPA is the lead agency for hazardous waste disposal.”90 Yet, the EPAclaims it has no responsibility to remediate inside homes and businesses. Why does the EPAhave the authority to dispose of hazardous waste, but not hazardous waste that made its wayinside buildings? Under this logic, if a steel beam from the World Trade Center coated withasbestos and other hazardous materials fell on top of someone’s house, the EPA would berequired to remove it. However, if that same steel beam, and the hazardous materials coating it,are pulverized into little pieces and blasted into peoples’ homes, the EPA no longer hasjurisdiction. The EPA has yet to provide a statute or regulation that supports this logic.

The EPA might say, as it has in the past, that it does not have the proper legal authority totest and remediate all areas affected by the collapse of the World Trade Center because the CleanAir Act does not govern indoor air. This is, again, utterly misleading. Section 303 of the CleanAir Act gives the EPA authority to protect human health when there is an “imminent andsubstantial endangerment” presented by a source of pollution.91 The intent of Congress is clearin this regard. A 1970 Senate Report on Section 303 states, “The levels of concentration of airpollution agents or combination of agents which substantially endanger health are levels whichshould never be reached in any community. When the prediction can reasonably be made thatsuch elevated levels could be reached even for a short period of time – that is that they are

92 S. Rep. No. 91-1196, 91st Cong., 2nd Sess. 36 (1970). Cited in EPA Memorandum: Guidance on the Use ofSection 303 of the Clean Air Act, Edward E. Reich and Michael S. Alushin, September 15, 1983.93 EPA Memorandum: Guidance on the Use of Section 303 of the Clean Air Act, Edward E. Reich and MichaelS. Alushin, September 15, 1983.94 40 CFR 300.135(a)95 40 CFR 300.135(c)96 40 CFR 300.400(d)97 U.S. Office of Management and Budget. Annual Report to Congress on Combating Terrorism . Washington,2001. 108 p.98 U.S. EPA National Response System (http://www.epa.gov/oerrpage/superfund/programs/er/nrs/)99 “EPA Anti-Terrorist Role Falls Primarily On Superfund Officials,” Inside EPA, September 19, 2001.

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imminent – an emergency action plan should be implemented.”92 In short, the EPA should notwait for people to get sick before it acts, and it clearly has the authority to act under this law. AnEPA memo entitled “Guidance on the Use of Section 303 of the Clean Air Act” was issued to theRegional offices on September 15, 1983, outlining these very points.93

Although the Clean Air Act is primarily intended to address source pollution, Section 303illustrates that EPA has authority under several statutes to respond to the release of hazardousmaterials that pose a threat to human health. Also, the Clean Air Act is not the only governingstatute. The EPA has the authority to act on indoor air under the National Contingency Plan, andthis authority is not drawn into question by the Clean Air Act.

As administrator of the NCP, the EPA has the responsibility through OSCs to directresponse efforts and coordinate all other efforts at the scene of a release.94 These responseefforts include indoor air and environments. The NCP mandates that the OSC, among otherthings, collect pertinent facts about the release, the nature, amount and location of releasedmaterials, the pathways to human exposure, and the potential impact on human health and theenvironment.95 There is no delineation between indoor and outdoor air, particularly where thereis a threat to public health. In fact, under the NCP, the EPA is authorized to “enter any vessel,facility, establishment or other place, property, or location…and conduct, complete, operate, andmaintain any response actions authorized by CERCLA or these regulations.”96 In other words, aresponse under the NCP is not limited to outdoor air, and the EPA has specific authority toremediate indoor environments.

Lastly, and most importantly, the counter terrorism policies of the United States dictatethat the NCP applies specifically to acts of terrorism. Just weeks before September 11th, 2001OMB sent its Annual Report to Congress on Combating Terrorism, which outlines each federalagency’s primary role and activities in responding to such an event. According to the OMB,“EPA’s first responders (On-Scene Coordinators or OSCs) from all 10 regions have beenactively involved with local, State, and Federal authorities in responding to threats of terrorism. EPA’s response to such threats is an extension of its existing hazardous materials responsecapability developed over more than 30 years as leader of the National Response System.”97 TheNational Contingency Plan is the framework for the National Response System and establisheshow it works.98 Thus, according to OMB, EPA’s response to an act of terrorism is carried out byOn-Scene Coordinators under the NCP.99

EPA’s responsibilities in this regard are further supported by Presidential DecisionDirective 62, which reiterates that the EPA is the lead agency for responding to the release of

100 Whitman, Christine Todd. Testimony before the U.S. Senate Appropriations Committee, Subcommittee onVA, HUD, and Independent Agencies, November 28, 2001.101 Ibid.102 Whitman, Christine Todd. Letter to Congressman Jerrold Nadler transmitted via fax February 22, 2002.103 40 CFR 300104U.S. EPA National Response System: How the System Works, www.epa.gov/oerrpage/superfund/programs/er/nrs/nrsworks.htm

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hazardous materials in a terrorist attack, and that the EPA has the specific responsibility toremediate inside buildings. On November 28, 2001, Administrator Christine Todd Whitmanoutlined the EPA’s role in counter terrorism activities before the Senate AppropriationsSubcommittee on VA, HUD, and Independent Agencies. Administrator Whitman testified that“Under the provisions of PDD 62, signed by President Clinton in 1998, the EPA is assignedlead responsibility for cleaning up buildings and other sites contaminated by chemical orbiological agents as a result of an act of terrorism. This responsibility draws on our decades ofexperience in cleaning up sites contaminated by toxins through prior practices or accidents.”(emphasis added).100 Administrator Whitman went on to say that “This role is a natural fit forEPA’s on-scene coordinators, managers who are experienced in assessing contamination instructures,” and who “have considerable experience at sorting out hazards, quantifying risks,planning and implementing emergency cleanups, and coordinating among other agencies, stateand local government, and the private sector.”101

This testimony was given to Congress over two months after the September 11th terroristattacks, at the same time EPA told elected officials and citizens that New York City hadresponsibility for indoor environments in Lower Manhattan. In fact, just two months ago,Administrator Whitman wrote “I believe that Congress and the Administration need to revisit theissue of authority and responsibility for indoor environmental conditions in the wake of aterrorist attack. While the current practice is to vest responsibility in local and state governmentfor indoor environmental conditions, perhaps this approach is not appropriate in the wake of anevent like September 11th.”102 This statement does not seem to comport with EPA’sresponsibilities under the National Contingency Plan, the OMB Annual Report to Congress, orPDD 62, as outlined by Administrator Whitman in testimony before Congress.

While it is not clear what discretion EPA has to delegate response efforts under PDD 62,the EPA may delegate response efforts under the NCP. However, the EPA retains oversight ofall response actions, and all such decisions must be made through the organizational structure ofthe NCP.103 Therefore, any actions taken by any agency in response to the release of hazardoussubstances produced by the collapse of the World Trade Center fall under EPA oversight. If theCity takes the lead on indoor air, the EPA is not relieved of its responsibility in this regard. Infact, according to EPA’s own website, “The procedure for determining the lead agency is clearlydefined so there is no confusion about who is in charge during a response. The OSC determinesthe status of the local response and monitors the situation to determine whether, or how much,federal involvement is necessary. It is the OSC’s job to ensure that the cleanup, whetheraccomplished by industry, local, state, or federal officials, is appropriate, timely, and minimizeshuman and environmental damage.”104

Clearly, EPA should be operating in New York City pursuant to the NationalContingency Plan and PDD 62, and those authorities must be carried out by On-Scene

105 Martin, Robert J. “Interim Finding: National Om budsman W orld Trade Center Hazardous Waste Case”March 27, 2002 . 106 Na dler, Je rrold. Letter to Ad ministrator W hitman tra nsmitted via fax March 7, 20 02; M artin, Rob ert J.“Interim Finding: National Om budsman W orld Trade Center Hazardous Waste Case” M arch 27, 2002 . 107EPA Region II Document (via FOIA request by the New York E nvironmental Law and Justice Project),“Preliminary Assessment of Residential & Public Buildings," October 3, 2001.108 Ground Zero Elected Official Task Force, Memorandum #4, September 21, 2001.109EPA Region II Document (via FOIA request by the New York Environmental Law and Justice P roject)“Preliminary Assessment of Residential & Public Buildings,” October 3, 2001.110 “Official Transcript,” EPA National Ombudsman Second Investigative Hearing on W orld Trade CenterHazardous Waste Contamination,” March 11, 2002 , Testim ony of Bernard Orlan, p . 307-309, 389-390. 111 Martin, Robert J. “Interim Finding: National Om budsman W orld Trade Center Hazardous Waste Case”March 27, 2002.112 Ibid

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Coordinators. In evidence obtained through Freedom of Information Act (FOIA) request, and atEPA National Ombudsman Investigative Hearings, it appears that EPA did begin to implementthe NCP by dispatching On-Scene Coordinators to New York City.105 These OSCs wereinvolved in sampling and assessments to determine the level of contamination in residential andcommercial buildings and schools. However, Administrator Whitman and EPA officials haveyet to answer formal inquiries on whether or not the EPA has implemented the NCP, and if so, towhat extent.106

In documents obtained by the New York Environmental Law and Justice Project,pursuant to a FOIA request, it appears that EPA OSC’s did environmental assessments of at leastsome residential and commercial buildings at the request of the Ground Zero Elected OfficialsTask Force.107 The GZTF made the request on September 21, 2001.108 According to thedocuments in the FOIA request, the EPA did assessments of some apartments in LowerManhattan, Three World Financial Center, and schools in late September and early October.109 However, the EPA never informed anybody on the GZTF that this assessment was actuallyperformed, or of the results of this assessment. It was only discovered through the FOIA requestin late February, 2002.

Furthermore, in testimony provided at the EPA National Ombudsman InvestigativeHearing on March 11, 2002, it was discovered that OSC’s took indoor air samples at StuyvesantHigh School, and were involved in the decision to reopen the school on October 9, 2001.110 Sign-in sheets document that two EPA On-Scene Coordinators, the same two OSCs that did theassessments of residential and commercial buildings, were in fact at the meeting on whether ornot to open Stuyvesant.111 However, in an email to Ombudsman Martin denying a request forthe OSC’s testimony, the OSC’s supervisor, Doug Lair, stated that the OSC had spent only “twoweeks in New York in September” and that he had “minimal knowledge” of World Trade Centerresponse activities.112 This statement cannot be true given even what little we know about OSCinvolvement in Lower Manhattan in September and October. More importantly, the statementby Doug Lair provides confirmation that OSCs were present in New York following September11th, and that they have knowledge of response activities.

Clearly, the EPA began to implement, at least partially, the National Contingency Plan. The EPA has been given numerous opportunites to provide evidence that these legal obligationshave been fulfilled, and it has provided no such evidence. Quite the contrary, the testimony and

113 EPA Region II Press Release, “EPA and OSHA Web Sites Provide Environmental Monitoring Data FromWorld Trade Center And Surrounding Areas: Data Confirms No Significant Public Health Risks; RescueCrews and Nearby Residents Should Take Appropriate Precautions,” October 3, 2001.114 “Recomm endations for People Re-Occupying Comm ercial Bu ildings a nd R esidents R e-Entering T heirHomes,” (www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html), printed on January 24, 2002 3:42pm.115 Letter from John Henshaw (Assistant Secretary for OSHA) to Mr. Lowell Peterson, January 31, 2002.116 40 C FR 302 .4; CR S Re port RS2 1042, Asbestos: Federal Regulations of Uses, by E dward R appaport,October 9, 20 01; C RS Rep ort R L30798, Environmental Laws: Summaries of Statutes Administered by the

Environmental Protection Agency, by Martin R. Lee, January 4, 2001.117 “Recommendations for People Re-Occupying C omm ercial Bu ildings and Resid ents R e-Entering T heirHomes,” (www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html), printed on January 24th, 2002 3:42pm.118 40 CFR 300.135 (l); 40 CFR 300.150; Executive Order 12580, later amended by Executive Order 12777;40 CFR 300119 40 CFR 300.410 (c)(1)(v); 42 U.S.C 9604 (a)(4); CRS Report RL30798, Environmental Laws: Summaries

of Statutes Administered by the Environmental Protection Agency, by Martin R. Lee, January 4, 2001.

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correspondance of numerous EPA officials that FEMA made delegations of authority argues thatEPA did not fulfill its mandated oversight responsibility through On-Scene Coordinators.

As mentioned previously, the EPA, on its website and in public press releases, hasreferred people to the New York City Department of Health (NYC DOH) recommendations forguidance on reoccupying their homes and businesses.113 These recommendations advise peopleto remove dust using a “wet rag or wet mop.”114 This advice is clearly illegal for a number ofreasons. First, as noted above, OSHA Assistant Secretary Henshaw issued a letter stating thatthe settled dust from the collapse of the Twin Towers “must be presumed to contain asbestos”and therefore, OSHA federal regulations apply to the remediation of this material.115 Asbestos-containing material is a hazardous substance, and falls under the requirements of the NCP. 116 Therefore, EPA must exercise oversight of all the settled dust from the collapse of the WorldTrade Center, including dust that settled inside people’s homes and businesses.

Second, the NYC DOH recommendations are for people reoccupying commercialoffices, as well as homes, yet the recommendations omit any mention of applicable OSHAregulations, or that all of the dust must be presumed to contain asbestos.117 All of this is underEPA oversight.118 Yet, not only does the EPA allow these recommendations to be made by NYCDOH, the EPA actually refers people to them. As a result, the people of Lower Manhattan arebeing advised to clean asbestos-laden dust with wet rags and mops, with no enforcement ofOSHA regulations or EPA regulations requiring the use of properly trained personnel to abatehazardous materials. This is clearly not the intent of federal law, for if average citizens couldremediate hazardous substances, pollutants or contaminants with a wet rag, there would be noneed for a National Contingency Plan in the first place.

The EPA has the ability to correct these wrongs and act in accordance with the law. Even if a decision had been made for the City to take responsibility for indoor air, federalstatutes provide for the EPA to act when nonfederal authorities are either unwilling or unable todo so, and to do so in a timely manner.119 The EPA is aware of the inadequate measures taken bythe City. It was the EPA that faxed us the initial September, 2001 DEP notice to buildingowners, which contained no enforcement measures or resources for remediating homes andbusinesses. The EPA received independent test results in October, 2001 that showed elevatedlevels of hazardous materials inside people’s apartments. The EPA heard testimony from

120 40 CFR 300121 Haughney, Christine, “House Member Questions EPA Office Cleanup,” Washington Post, January 18, 2002.

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residents at the Senate field hearing in New York. The press accounts from the last two monthsalone should make the agency aware that hazardous materials are still contaminating peoples’homes. The EPA cannot plead ignorance, nor can it point fingers at FEMA. To do so is tomisrepresent the law.

As stated before, the EPA should be operating in New York City in accordance with theNational Contingency Plan and PDD 62. The NCP exists so that there is a transparent,accountable and coordinated decision-making process. If decisions were made in LowerManhattan pursuant to the NCP, the EPA has provided no evidence of the process. Because theFederal Response Plan activated the NCP, the EPA has the responsibility to manage hazardousmaterials remediation. The NCP is authorized by CERCLA, despite the fact that LowerManhattan is not a Superfund site, nor does the EPA need to use Superfund Trust Fund money inexercising its authority under the law.120 The NCP gives the EPA the authority and the resourcesto ensure that hazardous substances, pollutants and contaminants do not pose a threat to publichealth. The EPA has failed to uphold this law in response to the collapse of the World TradeCenter. It must remedy this situation by complying with the NCP now.

Why Is the EPA Treating New York City Differently?

The EPA’s inaction in New York City downtown residences and commercial buildingsstands in stark contrast to its response in its own building at 290 Broadway and to other non-Superfund hazardous materials contamination sites around the country.

The issue of the EPA’s double standard, with respect to its own building at 290Broadway, was first raised by Dr. Cate Jenkins, in a memo in which she described a conferencecall in which EPA Region II Counsel Walter Mugdan stated that the building had been“professionally cleaned.” Jenkins thus charged that the EPA had better protected its ownemployees than it had the residents of Lower Manhattan, who had been referred to the lenientDOH guidelines which recommended cleaning with wet rags and mops.121

Upon learning this, Congressman Jerrold Nadler, the New York Environmental Law andJustice Project, and the EPA National Ombudsman each separately requested documents fromthe EPA related to the alleged cleanup. Congressman Nadler’s request was answered in a letterfrom EPA Administrator Christine Todd Whitman on February 22, 2002. In that letter, shedismissed the double standard charge:

EPA did not set a more stringent standard of cleanup for these federal buildings,and the lobby cleanup was consistent with the New York City Department ofHealth ad visory. After noting significant amounts of dust tracked into 290Broadway and 26 Federal Plaza b y workers responding. . ., the General ServicesAdministration asked EPA to clean the lobbie s. The wo rk was do ne by EPAcontractors using HEPA vacuums already operating in the same area. As outlinedin the enclosure, EPA collected seven air samples at 26 Federal Plaza and six ai r

122 Letter from Christine T odd Wh itman (E PA A dministrator) to Congressm an Jerrold Nadler (NY -08),February 22, 2002.123 Ibid., enclosure, “U.S.EPA Air Analytical Results from 9/13/01 Sampling Event.”124 Jenkins, Cate (Ph.D., Environmental Scientist, Waste Identification Branch, HWID, Office of Solid Waste,U.S. EPA), “3/6/02 Draft: Asbestos in Settled Dust and Soils,” March 6, 2002. See also Jenkins, Cate, (Ph.D.,Environmental Scientist WIB, HWID, Office of Solid Waste, U.S. EPA) "Memorandum, Subject: Status ofAir and D ust Asbestos Testing After WTC Collapse, M arch 11, 2002 ."

125Martin, Rob ert J . ( National Om budsman, U .S.EPA) “ Testimony b efore the U nited States S enateSubcom mittee on Clean Air, Wetlands, and Climate Change,” February 11, 2002.

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samples at 290 Broadway, and found results below levels of concern [emphasisadded]..122 (Note that there is no mention of dust sampling.)

The enclosure to which Ms. Whitman refers is entitled “U.S.EPA Air Analytical Resultsfrom 9/13/01 Sampling Event.” Under the section “methodology,” the document indicates thatboth air and dust samples were taken. Air samples were “analyzed by TEM EPA 40CFR763AHERA” and dust samples were “analyzed by PLM EPA-600 R-93/116.”123 Ms. Whitman’sletter implies that, because the tests found only results below the “level of concern,” there wasno special action taken in the buildings.

But in reviewing the documents obtained under FOIA by the New York EnvironmentalLaw and Justice Project (documents that Ms. Whitman did not include in her correspondence toCongressman Nadler), Dr. Jenkins found that positive results for hazardous materials wereindeed detected by EPA tests. In fact, the documents show that the EPA used a much moresensitive “TEM” method for settled dust sampling which found a “positive” result for hazardousmaterials, despite Ms. Whitman’s enclosures in the Nadler letter that said it had used the “PLM”method. According to Ms. Jenkins, this high sensitivity transmission electron microcopy orTEM method for dust sampling was used nowhere else in Lower Manhattan, and “but for theresults from the more sensitive tests, Region 2 would not have abated asbestos from itsbuilding.” That “abatement,” according to Jenkins, included, but was not limited to, HEPAvacuuming and an evacuation for some period of time.124 This is, indeed, in stark contrast to theDOH cleanup guidelines that EPA officials directed Lower Manhattan residents to follow: i.e.,use of a wet rag or mop.

Either the testing and cleanup measures used at the EPA office were necessary to protectits workers, or the EPA wasted tax-payer dollars on an unnecessary cleanup. If such sensitivetesting is used in EPA’s own building, why not in the rest of downtown Manhattan?

The EPA is also treating New York City differently than it has treated many hazardouscontamination sites around the country. While the EPA has stated it lacks jurisdiction to test forand remediate hazardous materials in private space in lower Manhattan, it has acted on indoor airin locales without Superfund designation in numerous places such as Herculaneum, Missouri;Kellog, Idaho; and MacFarland, California.125

Furthermore, in Libby, Montana (a town only recently designated a Superfund site)Administrator Whitman told residents at a September 7, 2001 town hall meeting that, “It hasnever [emphasis added] been our plan to look to you to pay for any part of this clean-up,

126 Whitman, Chr istine Todd, EPA Adm inistrator, “Remarks of Governor Chris tine Todd W hitman,Administrator of the U.S. Environmental Protect ion Agency, at a Town Hall Meeting,” Libby, Montana,September 7 , 2001. 127 Jenk ins, Ca te (Ph .D., Environmental Sc ientist WI B, HWID, Off ice of Sol id Was te, U. S. EPA)“Memorandum , Subject: Preliminary Assessment, January 11, 2002 .”128 Ground Zero Elected Officials Task Force (Congressman Jerrold Nadler, Chair) Press Release, “GroundZero Elected O fficials T ask F orce Calls fo r Clea nup Ov ersight Ag ency, Re leases I ndependent Air Q ualityStudy,” November 19, 2001.

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including the clean-up of residential properties.” 126 As previously discussed, Dr. Cate Jenkinshas asserted that the levels of asbestos in lower Manhattan are comparable or in excess of thosefound in Libby, Montana.127 Why, then, are the residents of lower Manhattan, who were victimsof the worst terrorist attack in American history, not receiving similar assurances from the EPA?How can the EPA continue to deny that it has jurisdiction for indoor environments when onlyfour days before 9/11, Administrator Whitman asserted that very jurisdiction?

A Call to Action

The EPA must act in accordance with the NCP, a nd take a ction immediately to systematicallyand properly test and remediate all downtown buildings affected by the W orld Trade Centertragedy, using properly trained pe rsonnel, the be st-available equ ipment an d methods t ied togenuine, established health-based standards. Seven months after the attacks, it is now clear thatthe EPA is the o nly governmental entity with the authority, resources, expertise and mandate todo this job. This is the only course of action if the EPA is to restore the public trust and protectthe public health.

The Ground Zero Elected Officials Task Force on November 19, 2001 called for then-Mayor Giuliani to designate “one city agency to oversee all environmental aspects of the debriscleanup in Lower Manhattan based on the ongoing work at the World Trade Center site,complaints by residents and business owners in the Lower Manhattan area about poor air quality,and their ongoing difficulty in obtaining information from the agencies involved in monitoringair quality.”128

By that time, it was abundantly clear to the local elected officials, through extendedcontact with constituents and outreach to agencies and other decision-makers, that confusionreigned regarding air quality. Among residents, building owners, small businesses, commercialtenants and workers, there was a paucity of information on proper testing procedures, cleaningprotocols, funding sources and the myriad facts and instructions needed to cope properly withthe environmental effects of the attack. At the time, it seemed that the most logical andappropriate remedy to the confusion would be for the City to provide a “one-stop shopping”agency that could oversee and guide the cleanup. This would have been a move from crisismode management to ongoing, permanent administration.

The Task Force envisioned government functioning at its best: as a clearinghouse ofinformation, a guidance center for the most complete and up-to-date rules, procedures andstandards, and an enforcement unit to ensure that the strictest standards were observed to bestensure the public’s health.

129 NY C D epartment o f En vironmental P rotection w ebsite o n A ir, No ise and Ha zardous M aterials— AirMonitoring in Lower Manhattan.130 40 CFR 300.3(d)

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However, the full extent of the chaos and the enormity of the call were not clear at thetime. It was not known, for instance, that the EPA had delegated all responsibility for the indoorenvironment to the City. It was not known that the City, in turn, had abrogated its responsibilityby relying on building owners to test and clean public spaces of buildings (with littleenforcement) and on individual residents and commercial tenants for private spaces (with noenforcement). The City’s negative reaction to the mere hint of mishandling of this situation, orto any constructive suggestions based on ongoing, empirical evidence inhibited success in thepursuit of this one-agency designation. Indeed, letters and phone calls to the City’s Office ofEmergency Management went unheeded and unanswered. In the City’s quest to present theimage of a neighborhood “getting back to normal,” the mayhem in its own backyard persisteduntamed, while the EPA continued to proclaim that the “air was safe.”

Now, seven months later, it is clear that the EPA’s statement that “the City of New Yorktook the lead on the reoccupancy of buildings” incorrectly attributes actions to the City andwholly overestimates its capability to assume responsibility for oversight and supervision forthat very task.

Even today, the City’s mission does not seem clear, even to itself. According to the CityDEP’s website, the “DEP is monitoring the ambient outdoor air for asbestos. This effort isaugmenting ambient air asbestos sampling being done by the EPA and other state and cityagencies.”129 If the EPA had delegated the lead on the indoor air and reoccupancy of buildingsto the City, why does the City continue to improperly handle that job and instead expendresources on monitoring the outdoor air, the supposed province of the EPA? This leads to thequestion, “which agency must assume responsibility for this situation?” The answer is theagency whose legal mandate and mission is “to protect human health and safeguard ourenvironment” – the EPA.

According to federal regulations, once the Federal Response Plan was activated in NewYork following the events of September 11th, the National Contingency Plan went into effect.130 United States counter terrorism policies, as seen in PDD 62 and the OMB annual terrorismreport, further support that the NCP applies to terrorist activities. Therefore, the EPA, and allother agencies responding to the release of hazardous substances produced by the collapse of theWorld Trade Center must follow NCP procedures. This includes the designation of an On-SceneCoordinator, a chain of command for all response efforts so that there is a transparent,accountable, and coordinated decision-making process, and compliance with federal laws,regulations and standards.

Through administration of the NCP, the EPA must systematically and properly test andremediate all downtown buildings. We cannot call Lower Manhattan “safe” until such systematictesting and remediation is done. There has been inadequate testing and remediation thus far and

131 Letter from R. Radha krishman (P.E., Director of NYC DEP’s Asbest os Control Program) to BuildingOwners, February 12, 2002. See also “Interim Working Findings on the National Ombudsman World TradeCenter Hazardous Waste Case – Schools Located Near the H azardous W aste B arge in Lo wer M anhattan,”February 27, 2002.

132 W hitman, Chri stine Todd, EPA Adminis trator, “Remarks of Governor Chri stine Todd Whitman,Administrator of the U.S. Environmental Protect ion Agency, at a Town Hall Meeting,” Libby, Montana,September 7, 2001.

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the threat of recontamination to theoretically “safe” environments is real.131 The EPA has failedto uphold the law in response to the collapse of the World Trade Center. The EPA has On-SceneCoordinators, Environmental Response Teams, contractors, procedures, and the resourcesnecessary to do the job. It must come into compliance with the NCP now, and remedy thissituation.

New York City has suffered in many ways as a result of September 11, not leastfinancially. A budget deficit of $4 billion is forecast for next year, and City agencies are beingforced to make reductions and sacrifices to keep minimal services at acceptable levels. The Citymay also have future financial costs to face. By providing residents with inappropriate guidanceregarding apartment cleaning, the city may amass huge contingent liabilities. Similarly, NewYork State, by providing incentives for individuals to move into Lower Manhattan (via theLower Manhattan Development Corporation) at a time when the area may not be safemayalso be accruing these liabilities.

It is evident from agency testimony and the City’s documented fiscal frailty that it wouldbe unreasonable to expect it to underwrite the tremendous cost of testing and cleaning everybuilding contaminated in Lower Manhattan. This large-scale undertaking is one that only can beaccomplished by the federal government. It is also morally right for the federal government toassume the cost.

The Citizens of Lower Manhattan -- residents, workers and building owners -- have beenvictims of a terrorist attack on this nation, and should not bear the burden of making their homes,offices, and businesses safe again President Bush has said repeatedly that “This attack was oneperpetrated on America.” Why should New York City or its citizenry, which already have borneso much sorrow, also have to bear the cost of an obligatory cleanup? Administrator Whitmanmust ensure the victims of 9/11 who live and work in downtown Manhattan what she told theresidents of Libby, Monana: that she would provide a legal guarantee "that will protect themfrom EPA's ever seeking to have them assume the costs of cleanup"132

It is utterly absurd that the federal government would pay for removal costs if a steelbeam from the World Trade Center fell into a home or workplace, but not so if that same beamwere broken into a million pieces because of an explosion due to the same attack. This is not theintent of federal laws and policies.

When the EPA engages in such a testing and remediation program, it must do so utilizingthe best science, techniques, and equipment and the strictest health-based standards to call indoorenvironments “safe.” The EPA and the entities to which it has inappropriately delegatedauthority have already been found to use approaches that are less than adequate. New York

133Letter from Christine Todd Whitman to Senator Hillary Clinton, Feb. 12, 2002.134 U.S . En vironmental Pr otection Agency-Region 2 Press Release, “Federal, State , and Cit y AgenciesAnnounce Actions For Lower Manhattan Air Quality,” March 25, 2002.135 Ibid.

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deserves the highest level of treatment, just as EPA’s own building and other areas of thecountry have received.

In mid-February, Administrator Whitman announced a new EPA plan to establish a TaskForce on Indoor Air in Lower Manhattan, "working with our local, state, and federal partners.”133

Shortly thereafter, Mayor Michael Bloomberg announced the formation a city-wide LowerManhattan Air Quality Task Force and telephone hotline. In the past two months, there has beenlittle action made by these entities. On March 25, the EPA task force, announced that it will“remove residual debris from rooftops and facades around the World Trade Center site,”134 atask, while important, has little to do with the specific question of indoor air. In addition, theEPA task force said it would “work to build on an indoor air study conducted in November andDecember,”135 the results of which are still unavailable months later. It is a fervent hope that thecreation of these groups was not an attempt to muffle the issue, which demands immediateaction, not ponderous meetings and discussions. The public’s trust in government has alreadybeen severely weakened. The acts of unresponsive agencies damage the integrity and honor ofgovernment service, and despoil the trust necessary for government to be effective.

Now, seven months after the World Trade Center disaster, there is still time for the EPAto redeem itself and to make Lower Manhattan truly safe. The opportunity is here and now forthe EPA to fulfill its purpose by accepting the mantle of protector of public health. A failure toact immediately may result in mammoth future health care costsas victims of the disaster arefaced with increasing health problems. By acting now, the EPA can help to avoid the costs, aswell as maintain its role as public health defender. The EPA has the power, the knowledge, themeans, the mandate, and the moral obligation to rise to the challenge.

There are some who urge a swift “return to normal” and who protest that raising thespecter of contaminated indoor areas is scaring people. That attitude and those claims are short-sighted and irresponsible. It is certainly important to get New York City back on track, but topretend that health hazards do not exist is foolhardy and reckless – both from a public healthperspective and from the vantage point of economic redevelopment. If we act immediately anddecisively, we can still safeguard both the City’s future and the public health. Surely the expenseof cleaning properly is worth the health of this and the next generation.

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