Story at The New York Sun: A federal appeals court's reading of an obscure Cold War-era law, passed amid fears of a Soviet nuclear attack, will decide whether the thousands who toiled at ground zero can hold the city liable for their exposure to toxins. The U.S. 2nd Circuit Court of Appeals, which sits in Manhattan, will hear oral arguments today on whether the city is immune from lawsuits brought by the thousands of firefighters, police officers, and construction workers who searched for survivors and cleaned up on the site of the World Trade Center. Many of the workers say they now suffer from respiratory ailments linked to arsenic, asbestos, and other toxins found in the air and dust at the site. One estimate, by the lawyer who managed the September 11 Victim Compensation Fund, Kenneth Feinberg, places the cost of settling the suits at more than $1.5 billion. At issue is a U.S. District Court ruling from last year that allows as many as 10,000 of those workers to press forward with suits against the city. The city is asking a three-judge panel of the federal appeals court to overturn that decision, which was handed down by Judge Alvin Hellerstein, who sits in Manhattan. The conditions at ground zero have long been under the microscope, with workers alleging that the Environmental Protection Agency put out falsely optimistic air quality reports and that government agencies failed to ensure that workers were wearing respirators. In May, the city's medical examiner amended a woman's death certificate to state for the first time that toxic dust from the site had been a "contributory" cause of death. But today's arguments, and ultimately whether the suits are upheld or thrown out, will not turn on any single fact about the conditions at ground zero or the city's actions in the days following the terrorist attacks. Instead, the court's decision could hinge entirely on its reading of the New York State Defense Emergency Act. That law, enacted in 1951, grants immunity from lawsuits to the government and companies responding to an attack. While the enemy the Legislature had in mind was the Soviet Union, Judge Hellerstein's ruling found that the passage of history had not made the law irrelevant. The city, the judge wrote, was certainly entitled to immunity in the days immediately following the attack. However, the judge said it was an open question whether that immunity extended months later, as work at ground zero continued: "As the emergency condition fades … the need for immunity diminishes and the obligations and duties otherwise imposed once again must be protected," Judge Hellerstein wrote. A brief filed on behalf of the workers stresses that in the months after the September 11, 2001, attacks, ground zero became a work site where ordinary workplace regulations and responsibilities applied. During the nine-month cleanup operation, the plaintiffs' brief argues, "the site had been radically transformed from a place of chaos and public emergency to an orderly construction site not unlike those the City of New York has often seen." The city, on the other hand, contends that it is entitled to immunity for the entire duration of the recovery operation. The city's brief stresses the law's Cold War history, noting that lawmakers in 1951 were anticipating cataclysmic attacks, from which any recovery would be slow. "The rescue and recovery from a nuclear attack would greatly exceed — perhaps by years — the roughly nine-month period of the 9/11 rescue and recovery operation," the brief argues. The panel hearing the case today is to consist of Judges Jon Newman, Sonia Sotomayor, and Richard Wesley. A lawyer from the firm of Patton Boggs, James Tyrrell, will argue on behalf of the city. The plaintiffs will be represented today by Kevin Russell of Howe & Russell, P.C., and Brian Shoot of Sullivan Papain Block McGrath & Cannavo, P.C.
Monday, October 1, 2007
Court To Hear Ground Zero Liability Case
Tuesday, May 1, 2007
“If the bones are still there,” Ms. Mattei said, “why do we assume that the asbestos and the lead are not?”
E.P.A. Is Urged to Widen Focus on 9/11 Health Effects - New York Times:
"Speaking at a Congressional hearing held in Brooklyn Borough Hall, they said that with the recent focus on the deaths and illnesses of people who worked at the World Trade Center disaster site, effects on those farther from ground zero were being overlooked.
Several experts presented evidence that they had gathered in recent years of increased asthma rates and widespread home contamination in Brooklyn, and urged more research to at least determine the extent of the problems.
Representative Jerrold L. Nadler, a Democrat whose district includes parts of Brooklyn and Manhattan, said that having already misled ground zero workers that the air they breathed was safe, the E.P.A. was now engaged in a “second cover-up.”
“This,” Mr. Nadler said, “is that the people in Manhattan, Brooklyn, Jersey City and Queens are still being poisoned daily.”
The hearing was conducted by a subcommittee of the House Committee on Oversight and Governmental Reform and was presided over by Representative Edolphus Towns, a Democrat of Brooklyn.
In the hours and days after the attacks on the World Trade Center, aerial photographs showed the main plume of smoke and dust blanketing a northwest-to-southeast swath of Brooklyn.
The E.P.A. paid for apartment cleaning in some of the Manhattan neighborhoods closest to ground zero, and in 2005 it proposed expanding its clean-up zone to affected areas of western Brooklyn and farther north in Manhattan. But it dropped the plan after an independent panel rejected the agency’s proposed criteria for determining contamination.
At yesterday’s hearing, an official in the State Department of Health’s Office of Managed Care cited a study, which his office helped conduct in the summer of 2002, of Medicaid recipients with pre-existing asthma. The survey found that asthma sufferers in western Brooklyn were 2.4 times more likely to complain of worsened asthma after 9/11 than asthma sufferers in the rest of the city — more likely even than asthma sufferers in Lower Manhattan.
The survey also found that asthma sufferers in western Brooklyn were 1.5 times more likely to have visited a hospital for asthma complaints than those in the rest of the city, the health official, Patrick J. Roohan, said.
Yvonne J. Graham, the deputy borough president in Brooklyn, said that of the $140 million that the federal Department of Health and Human Services gave to health care organizations after the attacks, only $5.5 million went to Brooklyn, $4 million less than the Bronx, which was not in the path of the main plume.
Kwa-Cheung Chan, a former assistant inspector general at the E.P.A., said that in a 2003 survey conducted by his office, about a quarter of Brooklyn respondents said that their homes had been contaminated with dust or debris from 9/11. A survey by the Sierra Club in neighborhoods southeast of the Brooklyn Bridge, including Red Hook, Brooklyn Heights and Park Slope, found similar results, said Suzanne Y. Mattei, the club’s New York City executive.
“This is only preliminary information meant to indicate where further testing needs to be done,” Ms. Mattei said, “but it sure does follow the dust cloud.”
Representative Anthony D. Wiener, a Democrat from southern Brooklyn, recalled watching scraps of paper settling on the terrace of his office near the waterfront in Sheepshead Bay, nearly 10 miles from ground zero.
Bonnie Bellow, a spokeswoman for the E.P.A. in New York, said by telephone yesterday, “While we had a wide range of various kinds of data to indicate there certainly was some dust that went to Brooklyn, we have focused our program closest to ground zero.” The agency, she said, was “prioritizing the testing and the necessary cleanups” there.
Ms. Bellow said the agency had not been invited to attend yesterday’s hearing.
Mr. Chan said that five years down the road, it made more sense to examine people than their homes.
“It’s like when you dirty the water, a few years later you start to see mercury in the fish,” he said. “Why don’t we look at the fish rather than the water?”
But Ms. Mattei said that even at this late date, a cleanup could prevent health damage.
“There’s no World Trade Center dust left on the kitchen table,” Ms. Mattei said. “But what about the carpet, the curtains? I’m more concerned for young children and toddlers.”
She noted that even five years after what she said was an exhaustive effort to locate the remains of those who died on 9/11, they are still turning up on building rooftops and elsewhere.
“If the bones are still there,” Ms. Mattei said, “why do we assume that the asbestos and the lead are not?”
Correction: April 28, 2007
An article on Tuesday about a Congressional hearing in
Saturday, April 21, 2007
Feds backed in WTC air case
Saturday, April 21st 2007, 4:00 AM
Federal officials can't be held liable for painting a rosy picture of lower Manhattan's air quality after the Sept. 11 terror attacks, a federal appeals court has ruled.
A three-judge panel of the 2nd Circuit Court of Appeals on Thursday upheld a lower court ruling that tossed out a lawsuit by five emergency workers. The workers, who say they all suffer ailments related to their work at Ground Zero, charge that former Environmental Protection Agency head Christie Whitman misled them by issuing public statements assuring them the air was safe.
The court's chief judge, Dennis Jacobs, said holding public officials accountable for releasing bad information could have a chilling effect on future government responses during a crisis.
"Officials might default to silence in the face of the public's urgent need for information," Jacobs wrote.
In passing, Jacobs also took a dim view of a related lawsuit currently on appeal that was filed by students, workers and residents of lower Manhattan and Brooklyn. Last year, Manhattan Federal Judge Deborah Batts refused to dismiss that suit, saying, "Whitman's deliberate and misleading statements to the press" about air quality "shocks the conscience."
Jacobs said the panel disagreed with Batts' reasoning.
Five days after the attacks, Whitman said, "The good news continues to be that air samples we have taken have all been at levels that cause us no concern."
The collapse of the towers released a cloud of hazardous dust across lower Manhattan, including lead from personal computers and asbestos. Thousands of workers say they have suffered ill health as a result of their time at Ground Zero.
"There is a prospect, essentially, that these people will get nothing through the court system," said Stephen Riegel, the attorney representing the five workers: a national guardsman, a deputy U.S. marshal and three city Emergency Medical Service workers.
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