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EPA'S RESPONSE TO THE WORLD TRADE CENTER COLLAPSE: CHALLENGES, SUCCESSES, AND AREAS FOR IMPROVEMENT |
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New York City's Response to Draft Report Excerpts
THE CITY OF NEW YORK August 4, 2003 BY FACSIMILE AND OVERNIGHT DELIVERY
Mr. Rick Beusse Re: City of New York's Response to Draft Evaluation Report: EPA's Response to the World Trade Center Collapse: Lessons Learned, Assignment No. 2002-0000702 Dear Mr. Beusse: Thank you for the opportunity to respond to the revised excerpts from the Draft Evaluation Report: EPA's Response to the World Trade Center Collapse: Lessons Learned, Assignment No. 2002-0000702. This response is on behalf of The City of New York (the "City"). In addition to this response, the City requests that you consider the City's response to the initial excerpts that the EPA forwarded to the City. That response was made by letter dated July 7, 2003 from this office to the Environmental Protection Agency ("EPA"), a copy of which is enclosed, and was supported by submissions of documents by letters dated July 10, 21 and 22, 2003. 139 Report No. 2003-P-00012
Page 2 Before commencing on the excerpts that were forwarded to the City, we note that although this office requested the entire draft report so that the City would best be able to address the portions of the report concerning the City, only excerpts were supplied. Without access to the entire draft report to place sections concerning the City into context, the City is disadvantaged in providing comments to the excerpts. However, portions of the excerpts concerning the City compel a response by the City and the City hereby responds to the best of its ability, as follows: 1. The third sentence in the first paragraph on page 1 of the excerpts of the revised draft report is misleading. The sentence implies that the EPA assumed a lead role in responding to indoor environmental concerns because of criticism of the City. It implies furthermore that criticism of the City was warranted. The evidence does not support a conclusion that the EPA took a lead role with respect to this issue solely because of criticism of the City. There were a number of factors present at that time which appear to have influenced the EPA, including criticism of the EPA and the initial availability of federal funds at that time to address this issue. More importantly, there is no evidence that any criticism of the City with respect to indoor environmental concerns was warranted. Also, the sentence refers to EPA initiating a multi-agency task force at that time. This implies that this was the first time that federal, state and City agencies worked together to address this issue. The documents supplied by the City show that federal, state and City agencies worked together beginning September 12, 2001 to address a wide variety of environmental issues, including indoor environmental concerns. We recommend that the sentence be revised to read "EPA began to assume a lead role in February 2002, when the Agency chaired a multi-agency task force to continue to address concerns about the indoor environment." 2. The City has similar comments with respect to the paragraph labeled "Indoor Contamination Response" on page 1. This paragraph refers to concerns raised by public and elected officials and specific criticism of the City. Again, including this criticism appears to imply that the criticism was warranted, particularly since the City's position is not presented. We note that in the same paragraph, where criticism of the EPA is set forth, the EPA's position is presented in rebuttal to the criticism. The City believes that the evidence does not support the criticism of the City. For example, criticism concerning delegating testing and remediation efforts to building owners and residents in unwarranted. The City did not delegate this responsibility to owners and residents. The owners and residents always have had this responsibility, it was never the City's responsibility to do this and consequently the City could not delegate what it did not have. [AB-1] Similarly, there is no evidence that the City did not enforce proper procedures for cleaning asbestos where it had the enforcement authority or that the City gave improper 140 Report No. 2003-P-00012
Page 3 advice to the public on testing and cleaning procedures. As noted in the City's previous submission dated July 7, 2003, the EPA adopted the City's advice to its citizens. Moreover, including these criticisms implies that there was asbestos in these buildings. There is no evidence to support a claim that any significant number of buildings were contaminated with asbestos. Both the sampling conducted by many agencies and the City's response to complaints concerning asbestos, where out of over 300 responses to complaints there was only 1 finding of asbestos above the threshold level, demonstrate that asbestos containing material was not present above the threshold level in these buildings. [AB-2] References to criticisms are also not appropriate for this substantive section of the EPA report. The City does not dispute that there was criticism, but the criticism is relevant to whether the City and EPA followed the appropriate statutes, regulations and procedures. While the criticism may provide an impetus for conducting an evaluation, it does not provide any substantive basis for the findings in the report. To include the criticism in the substantive portion of the report in the manner in which it is included erroneously implies that the criticism has been substantiated and is unduly prejudicial to the City. Accordingly, the City recommends that this paragraph be deleted. 3. Concerning the second sentence in the paragraph labeled "Initial Actions Taken by New York City and EPA " on page 1, although the City was not provided with the documentation, the City has been informed that there is EPA documentation concerning an alleged statement by the City that it would not be requesting federal assistance. The documentation, which appears to be quoted on page 4 and 5 of the revised report, refers to a conversation between the EPA and the U.S. Public Health Service and the New York State Department of Health, where these agencies allegedly relayed to EPA the alleged statement by the City. It is impossible for the City to comment on the source of the statement given its vagueness and the fact that it is not attributed to any individual or agency. The City can, however, confirm that the statement is contrary to its repeatedly expressed position that it welcomed any authorized federal assistance at that point in time. To include this statement and purport to characterize the City's position based on a single, unattributed, out-of-context statement is unfair to the City. This is not the type of reliable evidence that should be required to support findings in an Inspector General report, The City therefore recommends that the statement be deleted. 4. Concerning the last sentence in the first full paragraph on page 2, the City believes EPA Region 2's comment that it did not want to take a more assertive stance because it would create a confrontation is not valid for more reasons than just that EPA was the lead agency for Emergency Support Function #10. From September 12, 2001 to the end of the Response Effort, the EPA was thoroughly involved in the effort. EPA had a "seat at the table" as demonstrated by the documents submitted by the City. Moreover, there was a cooperative relationship between EPA and the City. The EPA provided support for the Response Effort's overall health and medical response, which coordinated both environmental health and worker safety issues. In fact, when at a point in time during the Response Effort, EPA suggested that its functions be transitioned to a contractor, the City urged the EPA not to do this and to continue to maintain an on-site 141 Report No. 2003-P-00012
Page 4 presence and be part of the team. To suggest that EPA could not become more assertive or involved because it would create a confrontation is inconsistent with the evidence. 5. The first paragraph in the section labeled "New York City's Initial Response" on page 2 is misleading. It fails to mention that the City's policy and practice in the past was to hold building owners responsible for maintaining a safe environment and when necessary cleaning up their buildings. In other previous disasters, the federal government did not provide for federal funding to municipalities to clean privately owned buildings or property. The City consequently had no authority to request reimbursement for this activity and no authority to enter privately owned buildings to effect such a cleanup without the owner's consent or the finding of imminent hazard. Thus, the second sentence is misleading. We recommend that the first three sentences be modified as follows: "Consistent with past practices and federal law, building owners were initially held responsible for cleaning their own buildings. According to New York City officials, the issue of funding the cleanup of privately owned buildings was discussed with FEMA and the EPA. Initially, the federal position was that the Stafford Act, the statute which provides authority for federal disaster response, did not provide direct funding to the City for cleanup of privately owned buildings. During this discussion, the federal agencies were informed that owners of privately owned buildings would be responsible for funding the cleanup of their buildings and agreed with this course of action. Building owners, who needed help, were directed to the Disaster Assistance Service Center (DASC) where they could apply for financial assistance from FEMA." 6. Concerning the first full paragraph on page 4, which begins, "NYCDEP officials told us ...," the paragraph is misleading in that there never had been a certification program to determine the level of compliance with NYCDEP instructions concerning cleaning of privately owned buildings. Also, the paragraph does not reflect the proactive efforts of the NYCDEP and the fact that NYCDEP not only told EPA it cleaned all of the rest of the buildings, but provided documentation. The City suggests that the first sentence be revised to read, "NYCDEP officials told us they have never had and did not create a certification program, nor did they have authority to create such a program, to determine the level of compliance with their instructions regarding the testing and cleaning of asbestos inside buildings. unless a complaint was made or an asbestos abatement notification was filed with the City." The City suggests that an additional sentence be added that states, "However, NYCDEP made significant efforts, including establishing an additional "hotline" to insure that residents could obtain information concerning asbestos cleanup and could report any asbestos related problems." We suggest that the last sentence of the paragraph be revised to read, "NYCDEP officials provided documentation that the remaining buildings were cleaned by NYCDEP with FEMA funding." 7. With respect to the first full paragraph on page 5, which alleges that New York City officials told EPA that the City would not be requesting EPA assistance with respect to sampling and reoccupation issues, without further information such as who the New York City officials were, or even what New York City agency they represented, it is 142 Report No. 2003-P-00012
Page 5 impossible for the City to comment on the source of the allegation. Again, the City at that time was willing and eager to accept all authorized federal assistance. Moreover, as shown in the documents submitted by the City, the City had accepted U.S. Public Health Service and Agency for Toxic Substances and Disease Registry (ATSDR) assistance in conducting indoor air sampling. Thus, it would be inconsistent for the City to refuse the assistance of the EPA -- another federal agency -- in this matter. In fact, EPA participated in the discussion with ATSDR concerning the protocol for the Indoor Air Study. The City has already commented concerning the alleged statement made on September 30, 2001, which is referenced in this paragraph (see item 3, above) and will not repeat its comments. The City recommends that the two sentences that refer to the statements allegedly made on October 9, 2001 and September 30, 2001 be deleted. 8. The City believes that the paragraph labeled "Multi-Agency Residential Cleanup Undertaken" on page 5 is somewhat misleading. The second sentence suggests that the sole basis for EPA's involvement in indoor air in February 2002 was that it believed the City could not handle all the issues involved in this matter. This is not accurate. First, EPA did not just become involved in indoor issues in February 2002. As shown by the documents submitted by the City, EPA was involved in indoor air issues as early as September 29. 2001. Second, there were a number of events that coalesced around February 2002 that brought about more involvement in indoor issues by the EPA, including, public criticism of the EPA and, perhaps most importantly, the initial avai1ability of federal funding for indoor cleaning of private residences. Therefore, the City recommends that the second sentence be deleted. 9. The first paragraph in the section labeled "EPA Role on Indoor Environment" on page 5 is misleading. It refers to the portion of the NCP which allows a state or local agency to take the lead role in the case of a hazardous substance release. However, in this case. the site was not declared a hazardous waste site. We recommend that a footnote be added to this sentence noting that the site was not declared a hazardous waste site. 10. In the first paragraph of the subsection labeled "Cleaning Instructions" on page 6, the report opines that as a result of the failure of the City to recommend that residents obtain professional cleaning, long term health risks may have been increased for individuals who cleaned their residences without using respirators and other professional cleaning equipment. This is speculation that is not supported by the evidence. Indoor air sampling data along with the "Interim Final WTC Residential Confirmation Cleaning Study," completed by EPA Region 2 in May 2003, confirm that the methods recommended by the City, and adopted in the EPA website, were appropriate. Accordingly, we recommend that this paragraph be deleted. 11. The last paragraph in this section is also inaccurate. The City strongly contests the current opinion of asbestos medical experts contained in the first sentence of this paragraph. First, a huge body of test results established that asbestos contamination in indoor air was virtually nonexistent. Also, the conclusion of the experts completely ignores the practicality of the situation, in that for respiratory protection to be effective, 143 Report No. 2003-P-00012
Page 6 the user must be fit tested first and also that it is medically dangerous for an individual to wear a respirator without being medically cleared. Finally, the last two sentences of the paragraph are sheer speculation. There is no evidence as to how the individuals cleaned their residences. More importantly, as noted previously, there is no evidence of asbestos contamination in indoor air that would support the requirement to use abatement procedures or support the speculation that if abatement procedures were not used, health risks would be increased. Accordingly, this paragraph should be deleted. 12. Page 7 provided to the City is blank. 13. As a technical correction, in the first paragraph on page 8. the New York State Department of Labor, not the Department of Environmental Conversation, is delegated the responsibility for implementing federa1 regulations under the NESHAP program. 14. Concerning the first full paragraph on page 9 of the draft report. the City believes that given the prominent mention of the NESHAP notification requirement, this paragraph should include a sentence indicating that the EPA, because of its involvement, had functional notice of the demolition and everything concerning the demolition and that, as a practical matter, notification would not likely have changed the manner in which demolition was conducted. We recommend that the following sentences be added at the beginning of the paragraph. ""While the EPA and other agencies were not provided formal written notice of the WTC demolition activities, the EPA and other regulatory agencies had notice, in advance, of the demolition activities and the manner in which they were being conducted as a result of these agencies' invo1vcment in the Response Effort. EPA and the other regulatory agencies did not object to these activities and even if formal written notification was provided, it is doubtful the activities would have been conducted in any different manner." 15. As the only intact asbestos containing material encountered at the WTC site was below grade, the City recommends that the first sentence of the first paragraph on page 10 be revised to read. "Both NYCDDC and EPA officials told us that asbestos containing material (e.g., pipe wrapping. steel insulation) was only encountered below grade, and when it was encountered during removal it was tested and treated in accordance with asbestos abatement procedures." 16. The last sentence of the footnote on page 11 should be modified to provide a more complete explanation. The sentence should read, "Furthermore, they stated that the vehicles did not require decontamination since they were not transporting hazardous waste as defined by the EPA under 40 CFR Part 260-280. While decontamination procedures were not required, wash down procedures were mandated." 17. The first paragraph in the section labeled "Transfer of Debris to Barges" on page 12 is misleading and unfairly prejudicial to the City. It is based on citizen complaints rather than substantial evidence. The testimony of people complaining may be a useful starting point for analysis but it must be evaluated very carefully. This has 144 Report No. 2003-P-00012
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not been done here. This paragraph, without any critical evaluation at
all, seems to 18. The paragraph that begins at the bottom of page 12 should be modified. The last sentence reports that there was lead found in the ventilation system of Stuyvesant High School. The sentence also reports that it was not determined whether this lead was from WTC fallout. Environmental monitoring in lower Manhattan indicates that airborne lead levels averaged over 90 days (from September 2001 through November 2001) did not exceed the EPA National Ambient Air Quality Standard (NAAQS) of 1.5 ug/m3. Given these results and the ubiquity of tetraethyl lead in urban environments from its use in leaded gasoline, it is very unlikely that the lead found in the ventilation system was from WTC fallout. Even if it was, this has nothing to do with the City's response to the terrorist attacks on the World Trade Center. While this may be of some academic interest, it has no place in this part of the report. The City recommends that this sentence be deleted [AB-4] 19. The first paragraph in the section labeled "Asbestos Levels During Demolition and Debris Removal" is misleading. It unduly emphasizes that after September 2001 there were 7 air monitoring samples which exceeded the AHERA standard. The paragraph fails to mention that EPA collected a total of 12,676 ambient samples in lower Manhattan for phase contrast light microscopy analysis and 8,872 samples for transmission electronic microscopy analysis. Considered in this context, the fact that there were only seven exceedances demonstrates that the response actions taken were appropriate. The report mischaracterizes the seven exceedances as showing the sporadic presence of asbestos in the ambient air. Given the extensive monitoring, less than one exceedance per month can hardly be characterized as "sporadic." We recommend that the paragraph be revised to delete the table showing the exceedances and any reference to the table be deleted. Also, the reference that two of the exceedances were near Stuyvesant High School should be deleted. Reference to Stuyvesant implies that this location should be given preference over other locations near the site. The fourth sentence of the paragraph should be revised to read, "Out of approximately 21,000 145 Report No. 2003-P-00012
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samples taken from October 2001 through May 2002 there were only
seven
exceedances 20. The second full paragraph on page 20 beginning, "The indoor residential cleanup program" is inaccurate. The second sentence states that the Governor of New York did not declare a public health emergency. In fact. the Governor declared a "general emergency," which is construed to include a public health emergency, Also, the fourth sentence states that the City indicated that an indoor cleanup was not necessary. This is not correct, At no time did the City indicate that an indoor cleanup was not necessary. In fact, early in the "Response Effort," the City inquired concerning the availability of federa1 funds to pay for such a cleanup. The City also widely disseminated guidelines. for building owners and tenants to clean indoor spaces. The City accordingly recommends that the second sentence be modified to delete the phrase, "and the Governor of New York did not declare a public health emergency for this incident." We recommend that the fourth sentence of the paragraph be deleted. 21. We strongly recommend that the respirator sections contained within pages 16 through 19 be completely taken out of this report. Work place safety and personal protective equipment are matters within the jurisdiction of OSHA, These matters are, therefore, inappropriate for assessment by EPA-OIG. Further, much of the material concerning respirators appears to be based on two reports that arc inaccurate, incomplete and insufficiently researched. If these sections remain in the report, we advise the following: The section entitled "Respirator Use at Ground Zero Lacking" should be changed to "Respirator Use at Ground Zero." Within that section, the first sentence should be changed to read: "A widely publicized aspect of the WTC response was the less than 100% compliance with requirements to use respirators by rescue and construction crews," since there was not a total lack of respirator use. The second sentence should be changed to: "It was beyond the scope of this review to determine the extent of noncompliance with respirator requirements and why this occurred" for the same reason. The fourth sentence within that section should read: "Our limited work in this area indicated that respirators were widely available but provisions of the site requirements for using respirators were not fully complied with for a number of reasons" since there was a plethora of respirators at the site. The sixth sentence contains several inaccuracies and should be changed to: "Other reasons appeared to include the respirators' interference, due to the state of the technology, with the ability of emergency workers to communicate and conflicting messages about the air quality at Ground Zero." 22. The section entitled "Reports on Lack of Respirator Use" on page 17 should be completely deleted because, while it purports to represent a total picture of site operations, it in fact presents a very narrow and skewed snapshot by the author, who was at the site for a very limited number of hours, and who misidentified a key City agency -- the Department of Design and Construction -- and its role in the rescue and recovery efforts. The bullet points should be taken out with the exception of the point starting with "During the September 22-26 period," because there were thousands of rescue and clean-up workers on the site and a DDC official monitoring safety at the site personally 146 Report No. 2003-P-00012
Page 9 observed many who did wear respirators diligently. There are hundreds of photographs that depict the use of respiratory equipment and hard hats. Respirator use was tracked and enforced throughout the response to the disaster. In addition, this was not a hazardous waste operation. OSHA defines the scope of a "hazardous waste operation" as "clean up operations required by a governmental body, whether federal, state, local or other, involving hazardous substances that are conducted at uncontrolled hazardous waste sites." Although the debris produced by the collapse of the WTC did contain minor concentrations of various contaminants, including asbestos, fiberglass and alkaline cement dust, extensive sampling never indicated the presence of hazardous waste as defined by the EPA in Resource Conservation and Recovery act regulations 40 CFR Parts 260-280. [AB-5] In addition, there was an aggressive safety and health effort underway, spearheaded by the DDC and OSHA working in close collaboration. Beginning September 12, 2001, daily health and safety meetings were held and attended by multiple City, State and Federal agencies, including EPA, FEMA, OSHA, DEC, DDC DOH, DEP, FDNY, NYPD and OEM, together with the contractors' safety personnel, at which air monitoring and PPE protocols were discussed and established. There was a preliminary "Accident Prevention Plan" in place from September 14, 2001 through October 29, 2001, at which time the World Trade Center Emergency "Environment Safety and Health Plan" went into effect. Teams of safety and health professionals worked around the clock providing "direct intervention" to get workers to comply with basic safety and health requirements, especially the use of PPE. There were as many as 30 safety professionals on site each day. OSHA employees were constantly roving the site with safety equipment, and provided hands-on instruction and preliminary fit checking at IS 89 and at supply caches on the site. There are tens of thousands of documents which record these multi-agency health and safety concerns, many of which have already been provided to the EPA. Additional documents can be provided upon request. 23. On page 18, the first sentence beginning with "In contrast" should read as follows: "In contrast to the recovery operation at the WTC site, the January 2002 report noted that workers conducting WTC debris, sorting and inspection at the Fresh Kills landfill wore half-face respirators, hard hats, eye protection, and Tyvek suits." The language that the work at Fresh Kills was handled as a "hazardous wate operation" should be eliminated because WTC debris at the Fresh Kills landfill, and at Ground Zero, did not call for a hazardous waste response under OSHA or EPA standards, nor was it handled as such. The next sentence should begin: "The author opined" to avoid an erroneous impression that the reported information was an EPA finding. The sentence beginning "In other words" is inaccurate and should be replaced with: "The author's perception was the PPE use was more prevalent at the Fresh Kills landfill than at the WTC site." The report as written is again misleading in describing the debris as hazardous waste, and mischaracterizes the Fresh Kills landfill operation, which presented its own unique, multi-faced challenges, as "less hazardous." 24. On page 19 the first sentence of the first full paragraph beginning "As the rescue phase progressed," should be changed to read as follows: "As the rescue phase 147 Report No. 2003-P-00012
Page 10 progressed, EPA emergency response officials told us they were concerned about the less than 100% compliance with respirator requirements at Ground Zero and outlined these concerns in a letter to NYCDOH, dated October 5, 2001." The third sentence of that paragraph should read "The letter noted that EPA had recommended and continued to recommend that workers at the site wear respiratory protection, and that workers comply with procedures to prevent them from spreading debris from the site to their homes, cars, and other locations." Again, "decontamination" and "contaminants" language assumes a hazardous waste operation, and this was not such an event. To make it easier to understand our proposed modifications to the respirator sections contained within pages 16 through 19, I have enclosed a copy of the excerpts from the draft report with interlineations containing our proposed language. Thank you for the opportunity to comment concerning the revised draft report. If you have any questions, please do not hesitate to contact me or my staff. Very truly yours,
Kenneth A. Becker Enclosures
148 OIG Evaluation of New York City's Response to Draft Excerpts The following numbered notes respond to the numbered comments in New York City's response in Appendix S. 1. We agree that there were a number of factors that caused EPA to assume a lead role in responding to indoor environmental concerns, and that only presenting the criticism of NYC and not EPA would be misleading. Our draft already recognized that EPA was criticized as well and that this also influenced their actions regarding indoor concerns. The sentence has been clarified by deleting the lead-in clause that only cited criticism of New York City. The sentence now reads as follows: EPA began to assume a lead role in February 2002, when the Agency initiated a multi-agency task force to address concerns about the indoor environment. 2. We presented the criticism as background information that is necessary for the reader to understand the information that follows and to put this information into proper context. Regarding indoor asbestos contamination, evidence does not support the City's contention that there is "no evidence to support a claim that any significant number of buildings were contaminated with asbestos." Appendix K to our report points out that an October 12, 2001 study of two residential buildings -- one presumed to have significant WTC dust contamination and the other not -- found that both buildings had significant asbestos contamination, ranging from 6,277 to 10,620 s/mm2 in one building and from 141 to 379 in the other building -- all of which are above the 70 s/mm2 level. As we also point out, from September 2001 to September 2002 (when the indoor testing and cleaning program was implemented), many residents returned and cleaned their own residences, leaving it unknown as to the level of WTC dust contamination that actually was deposited in their residences. Further, EPA recent cleaning confirmation study report notes that one to three cleanings were necessary to achieve the health related clearance levels. We do not believe changes are needed. 3. We do not agree with removing the cited information. In our opinion, an EPA Regional Administrator's letter to a United States Congressman is evidence that we can cite in our report. Further, EPA's Situation Reports represent evidence we can cite as these are contemporaneous documents, that are completed soon after events are observed. We have included NYC's position on this issue by adding the following sentence to the paragraph: New York City officials disagreed with the characterizations of their statements presented in these documents and told us that they repeatedly expressed the position that the City welcomed any authorized federal assistance at that time. 149
Report No. 2003-P-00012 5. The City's position has been included in the final report as follows (revised sentences in italics): Initially, building owners were held responsible for cleaning up their own buildings, including interiors and exteriors. According to New York City officials, the issue of funding the cleanup of privately owned buildings was discussed with FEMA and EPA, and the initial federal position was that the Stafford Act (the implementing statute for the FRP did not provide direct funding to New York City for this cleanup. New York City officials said that during this discussion they informed the federal agencies that building owners would be responsible for funding the cleanup of their buildings and the federal agencies agreed with this position. Under this arrangement, owners of rental units were responsible for cleaning apartment walls, ceilings, and floors; common areas, such as hallways and lobbies; and heating, ventilation, and air conditioning (HVAC) systems, when deemed necessary as explained in guidance provided by New York City. Renters were responsible for cleaning personal belongings. In resident-owned condominiums, residents were responsible for cleaning their units, while building owners were responsible for cleaning common areas and HVAC systems. 6. No change is needed as this phrase was deleted during the editing process. 7. See response to note 3. 8. See response to note 1 where we explain that there were a number of factors that caused EPA to assume a lead role in responding to indoor environmental concerns. However, according to the EPA Chief of Staff, who was highly knowledgeable of EPA's reasons for becoming involved in indoor environmental concerns, EPA's reasons were as stated. Further, recognizing the importance of this information, we confirmed this and other information obtained from the Chief of Staff in writing. 9. A site does not have to be officially declared a "hazardous waste site" in order to engage state/local response. The NCP Part 300.500 contains the state role provisions. Nothing in this section precludes state/local involvement based on a formal declaration of the site. CERCLA and the NCP plainly allow states to respond on their own to non-NPL sites, and to decide whether to become the lead or support agency in Fund-financed sites. Nonetheless, NYC's suggested footnote has been added to ensure clarity in describing the response. 10. The cited sentence is based on evidence presented in the report which suggests that persons cleaning apartments that contained WTC dust may have increased their long-term health risks if they did not wear appropriate personal protective equipment. In regard to the "Interim Final WTC Residential Confirmation Cleaning Study," the study report notes that 1 to 3 cleanings were necessary to achieve the health-related clearance levels, with the number of cleanings related to the extent of dust in the unit. Further, the clearance levels 150 Report No. 2003-P-00012 were established to correspond to a 1 in 10,000 increased lifetime risk of cancer. As a matter of comparison, for a Superfund site cleanup the desired cleanup goal is a 1 in 1,000,000 increased lifetime risk of cancer with a minimum goal of 1 in 10,000. 11. See response to note 2. 12. No comment needed. 13. Suggested change made. 14. Section clarified by adding the following statement: New York City officials maintained that EPA had functional notice of NESHAP related activities through its participation at these meetings and that it was doubtful that notification would have changed the manner in which these activities were conducted. 15. The report already points out that asbestos removal activities prior to September 11, 2001, were of accessible asbestos materials, not all asbestos materials. No change made. 16. The last sentence of the footnote was revised as follows: They also said that the vehicles did not require decontamination since they were not transporting hazardous waste as defined by EPA under 40 CFR Part 260-280; and while decontamination procedures were not required, wash down procedures were mandated. 17. Testimony at EPA Superfund Ombudsman, Congressional, New York State Assembly, and New York City Council hearings is sufficient evidence to indicate a concern with removal activities. The OIG draft report presents a balanced discussion of this issue, as the testimonial evidence was supplemented with the results of ambient air readings in the area around the barge as well as a consultant's opinion on the impact this may have had on Stuyvesant High School. 18. Questions about lead contamination at Stuyvesant High School were raised in the news as well as at EPA Superfund Ombudsman hearings. This information was retained in the final report. 19. This paragraph was moved to Chapter 2 and revised during the editing process. During this process the specific statements questioned by New York City were eliminated. Further, the final report now includes the total number of air samples analyzed by the TEM method. 20. This paragraph was revised to eliminate the reference to a "public health emergency." The correct reference should be "immediate hazard." We retained the FEMA officials' statement about New York City's position on the formal indoor cleanup program because this was the position presented to us during our October 21, 2002 interview with the New York City Department of Health and Mental Hygiene's Assistant Commissioner for 151 Report No. 2003-P-00012 Environmental Health. We have also retained reference to the memorandum provided by he EPA Region 2 Administrator. The questioned paragraph was revised as follows: The indoor residential cleanup program was administered by EPA and New York City. FEMA officials told us that they normally do not fund indoor cleanups of private spaces related to a disaster unless an immediate hazard is declared. FEMA officials told us that New York City officials indicated a formal cleanup program was not needed. Therefore, in May 2002, the EPA Region 2 Administrator provided FEMA with a memorandum that furnished the necessary justification to authorize funding. 21. With regard to federal agency responsibilities, we agree that worker safety and personal protective measures are within the jurisdiction of OSHA. However, protecting human health and safety in an emergency is a shared goal, and one in which EPA actively supported OSHA. Additionally, EPA was criticized for its efforts in this area and may again face similar challenges in the future. Therefore, this is a legitimate topic for us to address in our report. 22. The cited report is a public document, issued by a Federal Agency, therefore it is sufficient evidence for us to cite. In addition, the report's findings related to safety measures at the site were corroborated by press accounts, our interviews, and reports from various officials present at the site. Further, we do not agree with New York City's interpretation of RCRA regulations. Asbestos, is a hazardous substance under CERCLA and, therefore, the OSHA definition of a hazardous waste operation as involving hazardous substances is appropriate. Therefore, we have retained this section in our report. 23. This section was revised to better reflect the cited report's information and to eliminate any misperception that the author's conclusions are those of our report. The section was revised as follows: In contrast to the recovery operation at the WTC site, the January 2002 report noted that workers conducting WTC debris sorting and inspection at the Fresh Kills landfill were wearing half-face respirators, hard hats, eye protection, and Tyvek suits. The author noted that respiratory protection compliance by workers at Fresh Kills was reported to be approximately 90 percent as opposed to 30-50 percent compliance at the WTC site. The author observed that: "...debris is pulled by workers from the smoking, twisted wreckage of the World Trade Centers and then wetted and hauled to a site where the debris is carefully sorted by workers wearing more protective clothing, much more consistently. " Moreover, the author noted that workers at the landfill were officially informed that not wearing respirators would result in disciplinary action. OIG investigators from our New York office who participated in the recovery operations confirmed 152 Report No. 2003-P-00012 the report's conclusions about the difference in respiratory use between the WTC and landfill sites. 24. We do not agree with characterizing respirator use at Ground Zero as "less than 100% compliance." We agree that the paragraph should be revised to directly quote the cited letter and to eliminate the use of the term "decontamination." The paragraph was revised to read as follows: As the rescue phase progressed, EPA emergency response officials told us they were concerned about the lack of respirator use at Ground Zero and outlined these concerns in a letter to NYCDOH dated October 5, 2001. This letter outlined the threat of potential exposure of workers to hazardous substances. The letter noted that EPA "has recommended, and continues to recommend, that workers utilize personal protective equipment and the personal wash stations to prevent the spread of asbestos and other hazardous substances from the WTC to their homes, cars, public transportation, food service locations, etc." The letter stated that EPA had observed very inconsistent compliance with its recommendations, but did not have the authority to enforce compliance with non-EPA/United States Coast Guard employees. The letter concluded by recommending that the Incident Commander adopt and enforce a site-wide Health and Safety Plan. A copy of the letter is in Appendix P. 153 Report No. 2003-P-00012 154 Report No. 2003-P-00012 Distribution EPA Headquarters
Acting Administrator EPA Regions
Regional Administrators New York City Agencies City of New York Law Department EPA Office of Inspector General
Inspector General (2410) 155 Report No. 2003-P-00012 _______________ American-Buddha Librarian's Comments: [AB-1] Look at this shameless passing of the buck back and forth between these government agencies. Regarding indoor air cleaning, the Inspector General's like, "these statutes and regulations do not obligate EPA to respond to a given emergency, allowing for local agencies to lead a response, and New York City in fact exercised a lead role regarding indoor air." FEMA's like, "it was decided that New York City should handle worker protection issues." And New York City's like, "the City did not delegate this responsibility to owners and residents. The owners and residents always have had this responsibility, it was never the City's responsibility to do this and consequently the City could not delegate what it did not have." Regarding asbestos, the Inspector General's like, "the study found that asbestos levels in both buildings exceeded the AHERA standard of 70 s/mm2: Asbestos concentrations ranged from 6,277 to 10,620 s/mm2 in the building expected to experience significant WTC dust contamination. Asbestos concentrations ranged from 141 to 379 s/mm2 in the building not expected to experience significant WTC dust contamination." New York City's like, "there is no evidence to support a claim that any significant number of buildings were contaminated with asbestos." And meanwhile, the idiotic EPA Acting Administrator is in the middle saying, "Brownie -- you did a heckuva job!" Marie Antoinette couldn't have said it better for any of these government entities, "LET THEM EAT CAKE!" [AB-2] "See No Evil, Hear No Evil, Speak No Evil." Jenna Orkin, WTC Environmental Organization September 11 was a tragedy that has changed the course of history and the way we live. It was also an environmental disaster of historic proportions. The World Trade Center contained about 50,000 computers each made with between 4 and 12 pounds of lead. That's not including World Trade Center 7. 50,000 Computers Each with 4-12 lbs Lead Equals 400,000 lbs of Lead 200,000 lbs of Asbestos Hundreds of tons of asbestos coated the first 40 stories of at least one tower. The tens of thousands of fluorescent light bulbs each contained enough mercury to contaminate a quarter of a [thousand] city blocks. Over 10,000 Fluorescents Enough to Contaminate 2,500 City Blocks The smoke detectors contained radioactive americium 241. The alkalinity of the air was equivalent to that of Drano. A month after the disasters, scientists from the University of California at Davis found levels of vanadium and very and ultra-fine particles that were the highest they'd ever seen of 7,000 samples taken from around the world, including at the burning Kuwaiti oil fields. Dr. Marjorie Clark has testified that 9/11 was equivalent to the burning Kuwait oil fields. Dr. Marjorie Clark has testified that 9/11 was equivalent to dozens of asbestos factories, incinerators and crematoria, as well as a volcano. Yet starting on September 13th, the EPA maintained that "The Air is Safe to Breathe." A report by the EPA Inspector General in August of 2003 revealed that EPA's press releases which initially warned the public about asbestos in the air were edited to offer reassurances instead. The editing was performed by the White House Council on Environmental Quality in order to re-open Wall Street. That's in the report. As a result of the false good news, rescue workers were sometimes not allowed to wear respirators on the grounds that they might frighten the public. Insurance companies often refused to pay for cleanup, forcing residents to clean the tons of toxic debris in their apartments as per the instructions from the New York City Department of Health. "Use a wet mop or wet rag, and where the dust is really bad, wear long pants." We are beginning to see the consequences of this disastrous chain of events. Over half of the heroes who cleaned Ground Zero are already manifesting serious respiratory problems. Hundreds of firefighters can no longer work. And as a harbinger for what's in store for people, 14 rescue dogs have died. The Commission Report deals with this issue in a footnote on page 555. They interviewed Sam Thernstrom, the White House coordinator who changed the press releases. He said his motive wasn't to re-open Wall Street, it was procedural. His story is corroborated by Christie Todd Whitman, who told the initial lies. When John Gotti is corroborated by Lucky Luciano, that may be good enough for the Commission, but we should not rest there. In the environmental disaster of 9/11, Osama Bin Ladin could not have found a better collaborator, a more kindred spirit, than George W. Bush. I am glad to reassure the people of New York and Washington, D.C. that their air is safe to breath and their water is safe to drink." -- EPA Administrator Christie Whitman "We can reassure the public that the air is safe to breathe, the water is safe to drink." -- EPA Administrator Christie Whitman Hugh Kaufman, Chief Investigator, EPA: The EPA officials were lying to the public and to Congress about the health effects engendered by the 9/11 catastrophe. Robert Gulack, SEC, Union Steward, Victim: Because the EPA said the offices were safe and employers ordered their employees back into the buildings, and thousands of us are now permanently ill. Ron Elum, Works near Ground Zero, Victim: I headlined at Radio City Music Hall with the Rockettes dancing behind me. I sang everywhere there was to sing, to sing a song, but I can't sing now, because every time I try to sing now, I choke. Robert Gulack: So in the middle of October, October 15th, 2001, I came to work. Two days later, I woke up at night, October 17th, 2001, and my lungs were full and gurgling, the respiratory function was so low that it woke me up out of a sound sleep, and from that day on, I've been sick. Hugh Kaufman, Chief Investigator, EPA: In fact, the air was hazardous for many, many months, and all of those tons of hazardous material were lodged in people's homes, in their offices, where in many cases they still are today. Joel Kupferman, NY Environmental Law and Justice Project: For me, the major failure by the U.S. Government after 9/11 was its failure to act as a government, which is to inform and protect. [AB-3] There is never any discussion focused on the evidence that is ABOVE (or below, depending on how you think of it) acceptable levels. As if they could just make negative evidence DISAPPEAR by focusing only on the positive. Why don't we just give up looking for the causes of all of our problems altogether, if all we're going to do is focus on the positive? "Brownie, you're doing a heckuva job!" As if we could turn the whole world into a paradise just through positive thinking. HA! Without actions, thoughts mean nothing. And focusing on the positive will never solve our problems. This is idiotic New Age thinking at the top levels of our government. [AB-4] Do you call this critical thinking? Why don't you just average pollutant levels over the entire 5 billion year history of this planet, and find that no releases ever have or could happen at all?!!! This is like saying (if I were a teacher), "I have no A students, because averaged together, they all have a C." Or like telling all the people who died in the WTC explosion not to worry, because there are no long-term effects." This is absolutely moronic thinking. Averaging is just another way of deleting evidence. [AB-5] Obviously, it is EXACTLY this kind of attitude that is the source of the conflicting information about safety. If only minor hazardous waste was produced in the WTC disaster, then why should people wear respirators? If "the practicality of the situation, in that for respiratory protection to be effective, the user must be fit tested first and also that it is medically dangerous for an individual to wear a respirator without being medically cleared," then why should people wear respirators? But, as we know, the hazardous waste produced by the WTC disaster was so minor and unhazardous that "initial findings of medical examinations of workers directly involved in rescue and recovery efforts ... concluded that 78 percent of those sampled had suffered lung ailments and 88 percent had experienced ear, nose, and throat problems in the months immediately following the attack." This operation should DEFINITELY have been treated as a hazardous waste operation, because it was hazardous to the health of the people, regardless of what the statutes and regulations define as hazardous. The author of this report, Kenneth A. Becker, is not fit to be a public servant. The only institution he is serving is corruption. |
