INCLUDES:

1. EPA's Mugdan complaint to Jenkins' superiors

MEMORANDUM
DATE: November 15, 2001
SUBJECT: EPA National Standards vs.
New York City Guidelines,
Cleanup of Dusts from World Trade Center
2. NY Daily News coverage on 11/20/01 with EPA's comment on Jenkins
11/15/01 memo to Rossol
3. Jenkins' 11/20/01 memo to EPA's Mugdan rebutting his statement in the
NY Daily News article
4. Jenkins' 1/15/02 email to Mugdan on using superior TEM tests for dust
5. Mugdan's 1/25/02 speech where he rebutts Jenkins' claim that EPA
cleanup procedures for asbestos apply to WTC, and Jenkins' claim that the
NYC do-it-yourself wet mop and rag procedures, without even a dust mask,
does not protects citizens
6. NYC 9/16/01 do-it-yourself procedures for residences and offices

FROM: Cate Jenkins, Ph.D., Environmental Scientist

Waste Identification Branch
Hazardous Waste Identification Division
Office of Solid Waste
US Environmental Protection Agency
Washington, DC 20460

TO: Monona Rossol, M.S., M.F.A., Director

Arts, Crafts, and Theater Safety (ACTS)
181 Thompson St., Suite 23
New York City, NY 10012
______________________________________
______________________________________

Please distribute this memo to interested persons. As we

have discussed, the US Environmental Protection Agency
(EPA) has effectively waived the EPA national regulations
under the Clean Air Act for asbestos cleanup and removal.
Dusts covering a large area of lower Manhattan, not just
Ground Zero, contain 1% or more asbestos as a result of the
World Trade Center disaster, and thus are subject to the
EPA national asbestos regulations.

The mechanism EPA used to waive its own asbestos

regulations was to refer parties to the extremely lenient
(and arguably illegal) asbestos guidelines of the New York
City Department of Health (NYC DOH). This was in lieu
of referring affected persons to the strict national
regulations for removal and disposal of asbestos
contaminated dusts. As a result, EPA is preventing people
from even knowing that the strict EPA national regulations
exist.

Although states (and thereby some cities) can be authorized

(delegated) by the EPA to enforce asbestos regulations and
issue guidelines, any state regulations and guidelines must
be at least as stringent as the EPA national asbestos
regulations. There is a process within the EPA for
approving state/city asbestos programs, and there is also a
process within the EPA for revoking the authority of the
state/city to administer asbestos programs. Instead of
taking action to correct the problems with the NYC DOH
guidance, EPA wholeheartedly endorsed it by referring to it
at the EPA web site.

This memorandum provides the web site pages so that any

interested person canto make the comparison between the
lenient NYC DOH guidelines and the EPA national
asbestos regulations.
______________________________________
______________________________________
NEED FOR SAFE CLEANUP OF
TRADE CENTER FALLOUT

The EPA tested dusts from the Trade Center fallout

covering streets and other surfaces. EPA found asbestos
levels at 1 percent or greater (the action level) at over 30
locations, some five to seven blocks away from Ground
Zero. EPA did not test for other toxic substances in these
surface dusts, such as fiberglass, PCB’s, dioxins, lead, etc.

Although the EPA did not find air concentrations of

asbestos exceeding health standards outside of Ground
Zero, this was undoubtedly because the tests were
performed in the open streets, where uncontaminated fresh
air mixes freely and dilutes any contaminated air. Inside of
buildings contaminated with Trade Center dusts could have
higher airborne concentrations, particularly when the dusts
are disturbed during cleanup operations.

Thus, there is no data to support any claim that no

hazardous exposures will result from the uncontrolled
cleanup of these dusts.
______________________________________
______________________________________
STRICT EPA NATIONAL REGULATIONS FOR
ASBESTOS CLEANUP AND REMOVAL

The EPA national regulations for the cleanup and removal

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

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

Scroll down the page to “Search or browse your choice of

CFR titles and/or volumes”. After you bring up that page,
scroll down to Title 40, and then bring up the specific pages
for Parts 61.145 and 61.150:

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

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

These national asbestos regulations are part of the National

Emission Standards for Hazardous Air Pollutants
(NESHAP’s), which are under the Clean Air Act. These
regulations are designed to prevent untrained individuals
from any practices which might either expose themselves
or others in their community to unsafe levels of asbestos,
including the exposures of waste handlers transporting
asbestos wastes to landfills, and the persons in or around
landfills or other disposal facilities.

These EPA regulations do not allow anyone to oversee and

perform the asbestos removal, such as a resident in an
apartment or a building owner. A management level
person trained in both the EPA regulations as well as those
of the Occupational Safety and Health Administration
(OSHA) is required. The expertise and training of the
person must include at a minimum 1) how, who, and when
to notify appropriate government officials prior to, during,
and after the asbestos cleanup process, 2) identification of
hazardous materials by laboratory analyses and other
means, 3) control procedures for removals such as prior
wetting of dusts, local exhaust ventilation that captures all
hazardous small particulates with HEPA filters or other

devices, 4) waste disposal practices that prevent any

leakage of asbestos during transport to a landfill or other
disposal facility or leakage after disposal, as well as
disposal at appropriate hazardous waste facilities, 5)
reporting and recordkeeping to be submitted to appropriate
officiates at specified times, and 6) knowledge of asbestos
hazards and worker protection through approved OSHA
respirators, other protective clothing, medical monitoring,
and other work practices. There are many other
requirements contained in the EPA regulations as well,
such as specific work practices, state and federal
notifications and approvals, and waste handling.

The EPA regulations apply to any dwelling of 4 or more

units, as well as all businesses. This means that the OSHA
regulations are effectively applied to all those involved in
the cleanup, even though residences and certain small
business might normally be exempt from OSHA
requirements. This is because the trained professionals
overseeing the cleanup, described above, are mandated to
follow approved and recommended OSHA practices for
worker protection.

The OSHA asbestos regulations are in 29 CFR 1910.1001

and may found at either of the following two sites. The
www.osha-slc.gov site loads faster.

http://www.osha-slc.gov/OshStd_data/1910_1001.html
http://www.access.gpo.gov/nara/cfr/

Additional information on OSHA recommended work

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

http://www.osha-slc.gov/SLTC/asbestos/index.html
______________________________________
______________________________________
LENIENT NYC DOH GUIDELINES
FOR TRADE CENTER DUST CLEANUP
AND REMOVAL

As stated earlier, the New York City Department of Health

(NYC DOH) issued special guidelines directed at “people
re-occupying commercial buildings and residents re-
entering their homes” after the Trade Center disaster.
These may be found at the following web site:

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

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

stating:

“Based on the asbestos test results received thus far, there

are no significant health risks to occupants in the affected
area or to the general public.”

The guidelines advise wearing a dust mask, but do not

specify what type of mask. The guidelines then claim “it
should not be necessary to wear this mask if you follow the
cleaning procedures detailed below.”

The NYC DOH then recommends the following cleanup

procedures. They recommend that it is only “best,” not
required, to use a wet rag or wet mop, or if the apartment is
very dusty, a person should wash or use a HEPA (high
efficiency particulate air filter) vacuum, and to take curtains
down “slowly” to keep dust from circulating in the air. Air
purifiers are recommended, but no specifications are given
as to the volume of air that the purifier can process. HEPA
air purifiers are also recommended, again with no
guidelines as to the volume of air that can be processed by
the HEPA air purifier.

The NYC DOH then recommends keeping outdoor dust

from entering the home by keeping windows closed, and
setting the air conditioner to re-circulate air and cleaning
the air conditioner filter frequently. Removing shoes
before entering the home for several days and avoiding
sweeping or other outdoor maintenance.
In contrast, the EPA national regulations for asbestos
cleanup and removal under 40 CFR Parts 61.145 and
61.150 are extensive. They do not even allow individual
residents of apartments, coops, or condominiums, or renters
of commercial spaces to perform their own cleanups,
potentially exposing themselves or others to hazardous
exposures. See earlier discussions of the EPA regulations.

The EPA national regulations do not allow optional

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

And, as discussed earlier, the EPA national regulations do

not allow individual residents or even building owners to
plan or oversee their own asbestos cleanup – a trained
certified professional with qualifications specified in the
national regulations themselves must be responsible.

The NYC DOH guidelines are contained on only two pages

with fairly large typeface. The combined EPA and OSHA
regulations, recommended practices, and supporting
technical documents for asbestos control and removal are
contained in hundreds of pages.
______________________________________
______________________________________
EPA DIRECTS PARTIES TO USE THE
LENIENT NYC DOH GUIDELINES

The EPA set up web pages to give information on its

involvement with the World Trade Center contamination
problem and cleanup. These pages direct people to the
NYC DOH lenient guidelines instead of the strict EPA
national regulations.
Go to the EPA web site page titled “EPA Response to
September 11" at:

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

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

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

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

An active link is then provided by EPA to the NYC DOH

web page which provides their lenient guidelines. This link
goes to the following web site:

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

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

the obligation, to direct all parties to the appropriate EPA
national regulations for asbestos cleanup, not to the lenient
NYC DOH guidelines. In my personal opinion,
immediately upon reviewing the lenient NYC DOH
guidelines for cleanup of Trade Center dusts, the EPA
should have taken steps to require their change to be as
strict as the EPA national regulations. If the NYC DOH
did not upgrade its guidelines, then, in my personal
opinion, the EPA should have publically announced its
intent to revoke New York’s authority to administer any
asbestos control program, including issuing lenient
guidelines such as it did.
 Cate Jenkins To: Lillian Bagus/DC/USEPA/US@EPA, Robert
Dellinger/DC/USEPA/US@EPA
11/27/01 09:59 AM cc:
Subject: Alert !

The following email forwarded to me by Region 5 indicates that Region 2 is

upset with my activities. And this indigestion was before I issued the
rebuttal to what Region 2 said in the new article, and went to Tom Ridge.
Doubt that made them happier.
----- Forwarded by Cate Jenkins/DC/USEPA/US on 11/27/01 09:55 AM -----

Jeffrey Bratko To: Cate Jenkins/DC/USEPA/US@EPA

11/20/01 09:04 AM cc: Deirdre Tanaka/R5/USEPA/US@EPA
Subject: Alert !

This is just to let you know about the messages below. As you know, the old
saying at EPA is that "No good deed goes unpunished".

Walter Mugdan To: Sylvia Lowrance@EPA, Eric Schaeffer@EPA, Bruce

11/16/01 07:09 PM Buckheit@EPA, Alan Eckert/DC/USEPA/US@EPA, Marianne
Horinko/DC/USEPA/US@EPA
cc: William Muszynski@EPA, Kathy Callahan@EPA, (bcc:
Robert Fitzpatrick/R2/USEPA/US)
Subject: Memorandum from OSWER Employee about
Asbestos-Containing Dust from World Trade Center
Collapse

Several EPA Region 2 employees received the following message on Friday,

November 16. The message is from a Dr. Cate Jenkins, an OSWER employee with
whom we are not familiar. The message forwards to us a separate message that
Dr. Jenkins apparently sent on Thursday, November 15 to a number of outside
individuals and/or organizations in New York. That message is a memorandum
from Ms. Jenkins to one such organization in which she provides opinions and
makes assertions about a number of matters pertaining to potentially
asbestos-containing dust in downtown Manhattan after the September 11 attacks.
Among other things, Dr. Jenkins provides opinions about the applicability of
certain of EPA Clean Air Act regulations to dust cleanup activities, and makes
assertions to the effect that EPA waived its CAA regulations. We are
concerned about a number of inaccuracies in her memorandum, as well as the
fact that it seems to have been written and distributed without any internal
review or approval by the appropriate Agency officials. Bill Muszynski asked
that I share this with you; we look forward to the opportunity to discuss this
further with you next week.

----- Forwarded by Joseph Siegel/R2/USEPA/US on 11/16/01 03:10 PM -----

Cate Jenkins To: Robert Fitzpatrick/R2/USEPA/US@EPA, LisaP

11/16/01 11:18 AM Jackson/R2/USEPA/US@EPA, Ken Eng/R2/USEPA/US@EPA,
Joseph Siegel/R2/USEPA/US@EPA
cc:
Subject: EPA National Standards vs. New York City Guidelines,
Cleanup of Dusts from World Trade Center

----- Forwarded by Cate Jenkins/DC/USEPA/US on 11/16/01 11:12 AM -----

Cate Jenkins To: actsnyc@cs.com

11/15/01 03:50 PM cc: nyeljp@justice.com, envjoel@ix.netcom.com, Lillian
Bagus/DC/USEPA/US@EPA, Robert
Dellinger/DC/USEPA/US@EPA
Subject: EPA National Standards vs. New York City Guidelines,
Cleanup of Dusts from World Trade Center
http://www.nydailynews.com/archives/news/2001/11/20/2001-11-20_feds__city_ignore_asbestos_c.html

DAILY NEWS
— online edition

November 20, 2000

Juan Gonzalez
[http://www.nydailynews.com]

Feds, City Ignore Asbestos

Cleanup Rules, Says EPA Vet
A veteran scientist at the federal
Environmental Protection
Agency is charging that her agency
and the city Health Department are
ignoring federal asbestos-abatement
law in buildings around the World
Trade Center disaster site.

In a scathing memo circulated last week within the

agency, Cate Jenkins, a 22-year EPA employee,
charged that top brass have "effectively waived"
the EPA's "strict national regulations for removal
and disposal of asbestos contaminated dust" by
recommending that residents and commercial
building managers in lower Manhattan follow the
"extremely lenient (and arguably illegal) asbestos
guidelines of the New York City Department of
Health."

In her memo, a copy of which was obtained by the

Daily News, Jenkins noted that the EPA's testing
had identified at least 30 locations, some five to
seven blocks from Ground Zero, where asbestos
levels in dust samples were above the 1% "action
level" cited in the federal Clean Air Act.

That law requires elaborate and strict procedures

for asbestos removal to be followed and the use of
trained asbestos cleanup companies.

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

Mugdan, the agency's regional counsel, who
insisted Jenkins was misreading the law.

"She [Jenkins] assumes that they [the regulations]

apply to the cleaning up of dust in residential or
office buildings in lower Manhattan.

"When they were written, they were never

intended to apply to something like a terrorist act.
These regulations apply to owners and operators
of a facility who are carrying out a demolition or
renovation. They were never contemplated to
apply to someone cleaning an apartment," Mugdan
said.

"This is not an academic or scientific argument,"

Jenkins said yesterday. "Our regulations are very
specific. They don't allow you to do this. We've
had a breakdown where the federal EPA and the
city are scrambling to get everything back to
normal, and they're ignoring the law."

Jenkins, who has a Ph.D. in chemistry and works

for the agency's Washington-based Hazardous
Waste Identification Division in the Office of
Solid Waste, said she believes her colleagues "are
afraid to say anything."

'Ludicrous' Advice

Some of the advice the Health Department has

posted for people on how to remove dust in their
apartments, Jenkins said, is "ludicrous." One
example, from the department's Web site: "If
curtains need to be taken down, take them down
slowly to keep dust from circulating."
"EPA regulations do not allow anyone to oversee
and perform ... asbestos removal, such as a
resident in an apartment building or a building
owner," Jenkins said.

EPA administrator Christie Whitman and other top

agency officials have repeatedly stressed that a
few dozen of more than 1,300 air monitoring tests
the agency has done since Sept. 11 have shown
asbestos levels above federal safety levels.

"Of course, individual samples represent only a

snapshot at a moment in time, not the
environmental conditions that would determine
whether federal standards have been exceeded,"
Whitman wrote in an Oct. 31 Op-Ed piece in The
News.

In addition, federal and city officials have stressed

that the main danger of cancer or asbestosis comes
from long-term exposure to the mineral fibers.

The Health Department did not immediately

respond to calls seeking comment. But on its Web
site, the department says "some asbestos was
found in a few of the dust and debris samples
taken from the blast site." Still, the city notes:
"Most of the air samples taken have been below
levels of concern. ... The risk of developing an
asbestos-related illness following an exposure of
short durations, even to high levels, is extremely
low."

The Danger Indoors

But Jenkins noted that outdoor readings could be

lower than asbestos readings indoors, where
fibers stay unless they are professionally removed.

At least two independent studies of commercial

and residential buildings near Ground Zero appear
to support her statement.

One of those reports was released yesterday by

the Ground Zero Task Force, a coalition of elected
officials who represent lower Manhattan.

Those tests, conducted Sept. 18 in two residential

buildings near Ground Zero by Cincinnati-based
Environmental Quality Management, found
asbestos levels far exceeding the federal safety
limit.

The other study, conducted in late September by

Virginia-based HP Environmental, found that
seven of 11 air samples taken from two office
buildings within three blocks of Ground Zero
exceeded federal standards.

E-mail: jgonzalez@edit.nydailynews.com

Original Publication Date: 11/20/01

Safety Guidelines Set for WTC Site Workers (11/20/01)

Asbestos Taints Workers' Refuge (11/20/01)
 Cate Jenkins To: mugdan.walter
cc: jgonzalez@edit.nydailynews.com
11/20/2001 12:58 PM Subject: TRADE CENTER ASBESTOS- rebuttal, Region 2 counsel contentions

MEMORANDUM

DATE:
November 20, 2001

SUBJECT: TRADE CENTER ASBESTOS DUSTS

Rebuttal to claim that national asbestos standards do not
apply to the cleanup of residences, business locations, or
homes in lower Manhattan

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

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

In my November 16, 2001 memorandum to Arts, Crafts,

and Theater Safety (ACTS), I contended that the U.S. EPA
had “effectively waived” the Clean Air Act (CAA)
standards under 40 CFR 61.145 and 61.150 for the cleanup
and disposal of asbestos. My memorandum referred to the
New York City Department of Health NYC DOH
guidelines for the cleanup of asbestos contamination in
residences and business locations surrounding Ground Zero
in lower Manhattan. I cited the fact that EPA was
responsible for ensuring that any state or city guidelines for
the cleanup of asbestos were as least as stringent as those of
the EPA national standards under 40 CFR 61.145 and
61.150, and that the NYC DOH guidelines were much less
protective.

You are quoted in a New York Daily News article by Juan

Gonzalas on November 20, 2001 (www.nydailynews.com)
as claiming that no regulations were being waived since
they did not apply in this case. See below:

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

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

"When they were written, they were never

intended to apply to something like a terrorist act.
These regulations apply to owners and operators
of a facility who are carrying out a demolition or
renovation. They were never contemplated to
apply to someone cleaning an apartment," Mugdan
said.

I respectfully submit the following arguments to counter

your narrow reading of the statute and its implementing
regulations:
______________________________________
______________________________________

NO WAIVER WAS GRANTED BY EPA

ADMINISTRATOR DUE TO EMERGENCY NATURE
OF TERRORIST ACTS

It is true that in emergency cases, a waiver can be granted

for compliance with EPA regulations. There is a formal
process for these waivers. However, in this instance, the
EPA administrator has granted a waiver.

For another CAA regulation, EPA is in the process of

granting a waiver because of the emergency conditions
created by the September 11 attack. The waiver would
address rules requiring New York road projects to meet air
quality regulations. The justification is that a key office
charged with monitoring transportation projects was
destroyed by the attack and serious disruptions to the city’s
traffic patterns and public transportation system have made
existing plans meaningless. See the publication INSIDE
EPA, October 12, 2001 (www.insideepa.com).

However, there is nothing in the record that EPA either has

or is contemplating any waiver or exemption of the CAA
rules for the cleanup of asbestos in residences, schools, and
business locations in lower Manhattan.
For EPA Region 2 to now claim that they have unilaterally
made such a waiver without necessary approvals without
even informing the public of such a waiver is
unconscionable.

______________________________________
______________________________________

NATIONAL ASBESTOS CLEANUP STANDARDS

HAVE BEEN APPLIED IN PAST TO OTHER
UNLAWFUL DEMOLITIONS OF BUILDINGS

In the past, other buildings have collapsed because of

unlawful activities, such as from arson or the illegal use of
explosives. These unlawful acts might even be branded as
terrorism.

There is no past precedent to establish that asbestos cleanup

procedures after these unlawful activities were exempted
from the national standards, allowing less protective
cleanup methods of surrounding homes, schools, and
businesses.
______________________________________
______________________________________

NATIONAL ASBESTOS CLEANUP STANDARDS

HAVE BEEN APPLIED PREVIOUSLY TO
SURROUNDING HOMES AND BUSINESSES FROM
THE DEMOLITION OF BUILDINGS BY EXPLOSIVES

The demolition of buildings by explosives is an accepted

remediation technique. In the past, under the CAA
authority, permits have not been granted for explosive
demolitions based on the potential for hazardous asbestos
exposures to occupants of surrounding businesses, schools,
and homes.

Thus, the CAA national standards clearly have the authority

to address exposures to asbestos not only to the parties
actually working on the demolition of a particular building,
but also to other affected parties in properties surrounding
the building under demolition.

______________________________________
______________________________________
THERE IS NO EMERGENCY SITUATION AT THIS
TIME JUSTIFYING THE WAIVER OF THE
STRINGENT CAA ASBESTOS CLEANUP
STANDARDS

There is no emergency situation at the present time to

justify any waiver of the stringent CAA national standards
for asbestos cleanup. The rescue phase of the recovery is
over. The re-entry into residences, business locations, and
schools is proceeding in an orderly fashion. Again, there is
no current emergency.
______________________________________
______________________________________

NEW YORKERS DESERVE THE PROTECTIONS OF

THE STRINGENT NATIONAL ASBESTOS CLEANUP
STANDARDS

Even if some legal argument could be upheld from a

jurisprudence standpoint for protecting New Yorkers to a
lesser extent compared to other categories of workers
engaged in asbestos abatement, this argument cannot be
allowed to hold sway.

Why not? It is not moral.

Furthermore, there is no lack of available funds to protect

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

This is my personal opinion.

 Cate Jenkins To: Walter Mugdan/R2/USEPA/US
cc:
01/15/2002 12:54 PM Subject: Walter, need to know your testing strategy rationale, whether AHERA or
not

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

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

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

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

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

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

Environmental Law Issues Raised by Terrorist Events in 2001

by:

Walter E. Mugdan I
Regional Counsel
U.S. Environmental Protection Agency
Region 2
New York, New York
January,2002

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

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

The '·11 Attacks

The events of September 11111 are painfully familiar to all Americans. In the immediate
aftermath. aU attention was correctly focused on the rescue efforts, and on trying to understand
what had occurred and how. But starting immediately on the 11th. and continuing without
interruption every day thereafter. EPA began carrying out the activities that would form a major
part of its mission assignment for the disaster response: environmental monitoring to help
detennine what short- and longer-term health risks were presented by the terrible events of that

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

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

5
day, and the extent and severity of such risks. 3 Working cooperatively with other government
agencies (including in particular the New York State Department of Environmental Conservation
(NYSDEC), the New York City Departments of Environmental Protection (NYCDEP) and
Health (NYCDOH). and the federal Occupational Safety and Health Administration (OSHA»,
BPA has since that first day gathered and published literally thousands of pieces of
environmental data from the impact areas around the World Trade Center CWTC) and the
Pentagon.4

Within the first hour after the attack on the Twin Towers. the Regional and National
Emergency Response Teams (ERTs) were activated and EPA Region 2'8 Emergency Operations
Center was established at its Edison facility. EPA sent teams of On-Scene Coordinators (OSCs)
and ERT sampling personnel inlo the field to monitor the ambient air in Brooklyn neighborhoods
where the massive plume from the wrc site was drifting. Air samples were conected also at
sites in New Jersey across the Hudson River from the WTC. OSCs went to Ground Zero to
survey the environmental damage, and collect bulk debris and dust samples that had thick1y
coated the immediate area. Air, dust and bulk samples were quickly delivered to ERT's
laboratory in Edison and to private laboratories. The results were obtained overnight, providing
valuable infonnation on what types of contaminants had been released into the environment so
that appropriate guidance could be given to the thousands of rescue workers and residents in the
surrounding areas.

This monitoring effort continued and expanded dramatically in the subsequent days and
weeks. Many monitoring sites were established in concentric rings around Ground Zero. Public
interest in and concern about environmental risks related to the disaster - particularly in the
densely populated downtown Manhattan areas around the WTC site - also began to rise quickly
within a few days after the event, reaching high intensity by late October and throughout
November.

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

) EPA soon acquired additional related tasks in the response mission. Chief among
these were the removal of the vast quantities of dust from the WTC building collapses that had
covered streets, buildings, trees - virtually everything for blocks around the site~ and the
establishment of a washing operation (which was later winterized in an enonnous heated tent)
which provided for every worker and every vehicle exiting the site to be washed so that
contamination would nol be c'arried outside the work area.

~ EPA's web site at http://esjepa.&Qv/epahome/wtcl for all data and data

summaries, as well as related information about EPA's role and activities in the 9-11 response
effort.

6
sometimes even closed windows. Depending on location, affected residents might have
anywhere from a very Jight coating to literally inches of dust covering every object and surface in
their apartments. s

Also much affected were tens of thousands of people who live elsewhere but worked
downtown. For some, their place of business no 10nger exists or is uninhabitable, and they are
now either unemployed or are obliged to work in new and sometimes distant and inconvenient
locations. Many others were able to return to their offices, stores and shops within a few days6 or
weeks after 9-11. But they returned to an area dominated by constant reminders of the
devastation - from a generally welcome increased security presence, to the very unwelcome and
sometimes literally sickening odors that emanated from the fires in the ruins of the Trade Center.
And, of course, none were more directly affected by and concerned about environmental
risks than the heroic rescue, emergency and recovery workers at Ground Zero - those most
frequently and extensively exposed to the dust and the combustion products from the fires.

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

5 The dust is only one of many problems these residents had to face. Others
included the difficulty of travel - getting to and from their apartments; the noise and traffic from
and night-long illumination of what quicldy became one of the largest construction sites in the
world, operating on a round-the-clock basis; fears about air quality outside their dwelJings as
well as inside~ and, of course, a whole suite of emotional reactions from living close to Ground
Zero.

IS Alileve)s of government commited themselves to do what was necessary to allow

the New York City financial markets to open again by Monday, September 17, six days after the
attack. Region 2 oses provided assistance to financial companies that needed to access their
offices prior to that date in order to get ready for the resumption of trading.

7 Since shortly after 9-11 EPA has sampled air for asbestos at some 21 sites in
Jower Manhattan twice daily. and at an additional 10 "outer" sites once daily; and EPA has also
sampled extensively for asbestos at the Fresh Kills Landfill. By the beginning of January, 2002,
over 4,300 air samples have been taken and analyzed for asbestos. In addition, EPA has sampled
for dioxins, metals, PCBs and SiUcates at 10 sites twice weekly; for PM2 .,S at 11 sites daily and
for PM 10 at 7 sites daily (in conjunction with NYSDEC); for VOCs daily at several work sites at
Ground Zero; for various gases at 19 sites daily; and additional sampling at and around Fresh
Kills Landfill. in the outer Boroughs, in New Jersey and at the steel recycling operations.

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

7
asbestos; the dust also generated concerns about fine particulates (PM2.5)' The fires that
continued to bum for months, accompanied by characteristic acrid odors that often penneated
downtown. raised concerns about volatile organic compounds (VOCs), semi-volatile organic
compounds, dioxins and furans. polychlorinated biphenyls (PCBs), polycyclic aromatic
hydrocarbons (PAHs). metals and particulates.

Asbestos Issues Associated with the WTC Collapse

Asbestos-containing material (ACM) including spray-on fireproofing (SOP) and

insulation was present in the Twin Towers. Although it was not used throughout the buildings, it
was present on many different floors in both towers. Thus, when the buildings collapsed it was
to be expected that asbestos would be among the components of the vast cloud that engulfed
lower Manhattan. As noted previously, EPA ambient air monitoring and bulk dust sampling was
commenced by the early afternoon of September 11th. EPA's sampling immediately confirmed
these expectations:

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

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

These sampling efforts raised some difficult environmental Jaw questions: Do any EPA
asbestos-related regulations apply to the conditions or circumstances encountered after the WTC
collapse? If so, how and to what extent? What standards should be used for reference when
reporting environmental sampling results?8

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

outfal1s discharging from the WTC site into the Hudson River, at influent and effluent discharge
locations at the Newtown Creek Sewage Treatment Plant which receives wastewater from the
wrc area, at sites next to piers that were dredged to allow for better access of barges that were
going to be used to transport the debris from lower Manhattan to the Fresh Kills Landfill and to
steel recycling facilities in New Jersey, at fixed stations in lower Manhattan that are part of
NYC's drinking water system. and from water tanks on top of residential buildings. This
to
monitoring was conducted detennine any adverse impacts to the drinking water supply and the
ambient waters as a result of the disaster. No discharges of significance were identified.

8 The origin and significance of both the values cited - I % asbestos content and 70
s/mm2 in air- are discussed further below.

8
encountered in the wake of the WTC disaster. but selected elements of those regulations are
relevant and appropriate to the situation.

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

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

Both sets of regulations include a definition and standard for "asbestos-containing material,"
The AHERA regulations also include a "clearance" standard for inside air in school buildings to
be used after asbestos abatement work has been completed; in order to ensure that the space is
safe for re-entry by children, teachers and other employees.

The Asbestos NESHAPs Rul~s

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

The asbesto~ demolition/renovation NESHAPs rules apply to the "owner or operator of a

demolition or renovation activity:; These terms are defined at 40 CFR §61.141:

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

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

To be subject to the demolition/renovation regulations, the facility being demolished or

the portion of the facility being renovated must have in excess of cetain specified amounts of
RACM. Specifically, there must be more than 260 linear feet of RACM on pipes, or more than

9
160 square feet of RACM on other facility components, or more than 35 cubic feet of RACM off
facility components where the length or area cannot be measured.

If a demolition or renovation activity is subject to the regulations. then specified work

practice requirements apply. The most important among these is that aU RACM be made
"adequately wet" before removal. The purpose of wetting is to minimize emissions of asbestos
to the outside air. (The Clean Air Act authorizes EPA to regulate for the protection of outside
air, not indoor air.)

One of the first decisions that EPA had to make when sampling for asbestos in the dust
from the wrc 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? BPA elected to use the definition of
ACM from the NESHAPs regulations - i.e.• the 1% asbestos content standard.9

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

It is important to emphasize that the NESHAPs regulations which are the source of the
1% reference value do not, on their face, have any direct legal applicability to the wre dust that
was deposited on the streets of lower Manhattan. The regulations govern asbestos manufacturing
operations and the renovation and demolition of buildings by building owners and operators. IO
They were not intended to address acts of terrorism. nor broad-scale contamination that may

9 ~ www,epa.govlepahomelwtc/actiyities.hun. an EPA web site page

describing the "Benchmarks, Standards and Guidelines Established to Protect Public Health"
which EPA is utilizing in connection with 9-11 environmental data reporting. A comparable
definition appears in the AHERA regulations, discussed further below. Note that the 1%
standard is not necessarily health- or risk-based, but rather keyed to the detection limits of the
specified analytical methods. Note also that finding low levels (below 1%) of asbestos in dust
samples at any time and anywhere in the City would not be unexpected, In an urban environment
like New York, it would not be unusual to detect the presence of low levels of asbestos under
normal circumstances - i.e., "background levels".

10 When ACM or RACM is used in manufacturing operations. or is found in

buBdings, it is genera1ly present in high concentrations - 60%. 70% and higher. By contrast,
when WTe dust was found to contain concentrations in excess of 1%, it was nevertheless still
quite low - typically between 1% and 4%.

10
ensue from such acts. 1I However, use of the NESHAPs definition of ACM to help characterize
WTC dust was an obvious and sensible choice.

Other NESHAPS-reIated asbestos questions arose in the weeks after the disaster. For
example. EPA was asked whether the demolition/renovation regulations can be interpreted as
being applicable to the cleaning of apartments and office spaces that received dust from the
World Trade Center collapse. 12 We think not. The answer turns on whether or not cleaning dust
from an apartment or office constitutes "renovation" as that term is used in the regulations. B
The definition of "renovation." quoted above. does not appear to contemplate this kind of
activity, though it is possible to argue that the definition is elastic enough to cover the cleaning of
dust.

There is no case law directly on point. To this writer's knowledge, the only judicial
opinion that grapples with the definition of the word "renovation" is U.S. \I. American National
CM Co., 126 F.Supp.2d 521 (ND.m.2000). There the government filed an enforcement case
against the owner of a building from which unauthorized scavengen; had removed structural steel
covered with RACM. The scavengers had, of course, not compJied with the NESHAPs rules.
The court found. however. that the activity of unauthorized scavenging was not "renovation."

11 In the wake of several other disasters. including the San Francisco earthquake and
Hurricane Hugo in 1989. EPA prepared 'lGuidelines for Catastrophic Emergency Situations
Involving Asbestos," EPA 340/1-92-010, February 1992. The guidance recognizes that the
NESHAPs asbestos demolition/renovation rules are not applicable in all emergency situations,
though they certainly are applicable in some.

12 The question was posed by at least one news reporter, whose inquiries were
prompted by a memorandum written by Dr. Cate Jenkins. an employee in the Office of Solid
Waste in EPA's Washington Headquarters. dated November 15, 2001. Though not writing
officially for EPA, Dr. Jenkins sent this memorandum to a number of groups and individuals.
Two major assertions she made were: (1) that the NESHAPs demolition/renovation regulations
do apply to the cleaning of apartments and offices, and that EPA has "waived" these regulations~
and (2) that EPA has not given appropriate advice to those who live and work in downtown
Manhattan with respect to cleaning dust from their homes or offices. EPA strongly disagrees
with both assertions. Both issues are discussed in the text above. In summary, as to the first, it is
inaccurate to say that the regulations apply to cleaning of WTC dust from apartments or offices;
and, in any event EPA did not "waive" the regulations (indeed, EPA has no legal authority to
waive NESHAPs regulations). As to the second. EPA believes it has given consistent, practical
and protective advice to response workers. residents and workers in downtown Manhattan.

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

11
The court's careful analysis of that word is instructive, if not dispositive of the question of
applicability of the NESHAPs rules to cleaning of offices and apartments:

"Added to the asbestos NESHAP in 1975. renovation was initia1Jy defined as the
'removing or stripping of friable asbestos material.' 40 Fed.Reg. at 48299. The EPA
explained its reasons for adding renovation as a regulated activity in a background
document published in 1974 .... The EPA was concerned that 'major renovation
operations' that 'potentially result in asbestos emissions of a magnitude similar to that
from demolition' would go unregulated.... The 1974 Background Document cites the
'rebuilding of industrial plants' and the 'replacement of apparatus' (e.g•• 'replacement of
a boiler in an apartment building'), as examples of the sort of activity the EPA was
proposing to regulate as renovation.... The usage of these descriptive tenns suggests that
the EPA had major restoration work ... in mind when it drafted the regulations ....

"The asbestos NESHAP has been amended and revised since 1975. Bach proposed and
final amendment to the regulation has contained slight variations in the wording of the
definition of 'renovation.' ... The EPA has repeatedly emphasized. however, that the
proposed and final changes were meant to clarify the regulations and not increase their
stringency...... Id. at 526.

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

On the other hand, the court does quote a standard dictionary definition for renovation:
"to restore to a former better state (as by cleaning, repairing or rebuilding). Id. Thus, although
it

this writer submits that the better reading is that the NESHAPs regulations do not app1y to the
cleaning of wrc dust from apartments and buildings. an argument could be fashioned from the
dictionary definition. that "renovation" includes cleaning of WTC dust from inside buildings.

Be that as it may. it is clear that the instructions in the NESHAPs regulations for how to
remove and handle asbestos-containing materials during a "renovation" are generaJ1y not
practical for or germane to the task of cleaning residential and office space of wec dust that may
contain relatively small amounts of asbestos.

EPA's objective, from the outset, has been to provide residents and those who work in
lower Manhattan with Qur best advice about how to evaluate the safety of their space, and how
best to go about cleaning it if it was affected by WTC dust. We have focused on giving advice
that is both protective and practical. We have advised people that if they have WTC dust in their
homes or offices, it may be easiest for them simply to assume that it meets EPA's definition for
"asbestos-containing materia)" rather than paying to test each dusted area separately and awaiting

12
the results before taking any further action.l~ We have further advised people to use professional
asbestos abatement contractors to carry out cleaning wherever there is more than a minimal
amount of dust.

By contrast. the instructions in the EPA demolition/renovation regulations would not be

either helpful or gennane to the problems faced by residents and workers in downtown
Manhattan. These regulations require that when ACM is to be disturbed during a demolition or
renovation activity. it must first be throughly wetted down before removal 15 This would be
completely impractical in homes and offices, where dust has covered papers, files. clothing,
bedding. carpeting, upholstery. and so on. Soaking all such items with water would often destroy
the very items that people are trying to clean and protect. And it would make it much harder-
perhaps even impossible - to then remove the soaked dust from those items~ the items
themselves would probably have to be discarded.'l'i And much of the dust was actually
pulverized concrete, which might pose additional problems when soaked with water. In short,
advising people to foHow the instructions in the NESHAPs demolition/renovation regulations
would be unhelpful - even absurd - and we can be sure such advice would not be followed.

Use of a professional asbestos contractor- as EPA has consistently recommended - is

practical advice, and likely to be more protective. While such contractors should not be expected
to adhere to the instructions in EPA's demolition/renovation regulations. for the reasons just
noted, they would be expected to have trained personnel. with adequate personal safety

14 We have been giving this advice because, inter alia, a significant number of the
WTC bulk dust samples that we analyzed did have more than 1% of asbestos. Moreover, we
found a great deal of variability in the results: dust samples taken very close to one another
nevertheless had very different asbestos concentrations. Finally, it is difficult and maybe
impossible to analyze "wipe" samples (taken where there is not enough dust for a "bulk" sampJe)
in the same manner, using the same analytical technique. Thus. we felt our advice was prudent
and practical: assume that WTC dust has a smal1 amount of asbestos in it, and act accordingly.

15 40 CPR §§ 61.145(c)(2)(i) and (3). A person carrying out a demolition or

renovation may, with EPA' s prior approval. remove ACM without first wetting it, if the person
can demonstrate that wetting the ACM would "unavoidably damage equipment...... Id. But even
if EPA grants such approval. there are alternate requirements in the regulations that are
impractical for an apartment or office space (e.g., use of specially designed ventilation and
particulate collection systems). Moreover, it is unrealistic to think that each resident, building or
office manager in downtown Manhattan could have made a written request for such approval
from EPA, with full supporting documentation; or that EPA could meaningfully evaluate such
requests.
16 It may be that a professiona1 asbestos abatement contractor will advise that
carpeting coated with WTC dust should be discarded and replaced. because it may be difficult to
fully clean asbestos from such carpeting. See also following note.

13
protection. They would be expected to use powerful HEPA-filter equipped vacuum cleaners. and
they would be expected to lmow how to properly use and service such equipment. 17 And they
can be expected to carry out clearance testing using air monitoring equipment after the cleanup,
in order to confirm that it has been successful. ~ AHERA discussion, below.)

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

EPA and the recyclers themselves have been sampling spray-on frreproofing material
(SOP) left on some of the steel beams. Asbestos in excess of 1% has been found in about 6% of
these samples. The environmental law question is whether the extraction of these steel beams
from Ground Zero, and their transport to New Jersey, and their further handling at the recycling
operations, constitute either "demolition" or "renovation" within the meaning of the NESHAP
regulations. Once again. though the better answer is probably "no," the issue could be debated.
In any case, EPA focused on ensuring that practical and protective management practices be used

11 HEPA (high efficiency particulate) filters are used in vacuums when cleaning
asbestos-containing dust. Note that there is some question as to whether a dry vacuum or wet
vacuum cleaner would be best suited to removing asbestos-containing dust from carpeting. EPA
studied the issue twice in the early 1990's. The second study, "EvaJuation of Three Cleaning
Methods for Removing Asbestos from Carpet: Detennination of Airborne Asbestos
Concentrations Associated with Bach Method" (1993), compared three cleaning methods in a
"real life" situation where carpet was heavily contaminated by friable asbestos-containing
material (1.6 billion Slft~. The study evaluated dry vacuuming. with and without HEPA
filtration. as well as a wet vacuuming (no HEPA filtration) technique. The study concJudes: "In
buildings containing friable ACM. vacuuming of carpets during routine custodial activities
should be perfonned with REPA-filtered dry vacuum cleaners. Carpets should be cleaned
periodically by a wet-cleaning method (e.g., a hot-water extraction cleaner). If ACM has been
released onto a carpeted area during an operation and maintenance activity or as a result of fallen
surfacing material, the gross debris should be removed by a HEPA filtered dry vacuum cleaner,
followed by wet cJeaning of the carpet:'

14
in the handling of the steel. IS rather than grappling blindly with a regulatory scheme that was
never designed for this kind of crisis.

AHERA Regulations

Along with the bulk dust samples, EPA began taking ambient air samples on September
11111 in an effort to determine the amount of airborne asbestos to which workers, residents and
visitors might be exposed. Once again, the key questions were what method we would use for
this ambient air testing. and to what reference standard the test results would be compared in
order to detennine whether the air was "safe. to

EPA has not promulgated an outdoor ambient air quality standard for asbestos; nor has
any other regulatory agency done so, for that matter. I9 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, which is to be used by regulated schools to confirm
that an action to "remove. encapsulate, or enclose" asbestos-containing building material
(ACBM. a term of art used in the AHERA regulations, which constitutes a subspecies of ACM)
is comp1ete. 40 CFR §763.90(iX3). If the school space in which such work has been performed
'passes' the test specified in that regulation ,20 it is presumed to be 'cleared' for use by children

18 For example. steel with SOF material (which may contain asbestos) stm intact
leaving Ground Zero is to be wetted down before transport to New Jersey; beams with SOP is to
be handled as gently as possible during transit to minimize disruption of the SOP; there should be
no dry scraping or air blasting of SOF off beams when the material is dry (friable); sampling of
SOF at the recycling operations should continue, with at least 10% of beams with SOP being
sampled; and a reasonable amount of air monitoring should be conducted at the recycling
facilities.

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

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

15
and school employees. 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 structures21 per square millimeter (70 slmm1).
EPA elected to use the AHERA test method for our ambient air sampling in conection
with the WTC and Pentagon disasters; and to use the 70 slmm2 background value as the
reference value to which we would compare our ambient air asbestos sampling data. n ,

As in the case of the NESHAPs standard utilized for determining whether WTC dust
would be characterized as having Significant levels of asbestos. here too it is important to
remember that the AHERA clearance test value is not directly applicable. in a traditional
regulatory sense, to the situation that presented itself in the wake of 9-11. The AHERA standard
applies only to indoor air in schools. after asbestos work has been done. But while not explicitly
applicable, to once again borrow Superfund tennino)ogy it is certainly "relevant and
appropriate." If we are satisfied that air in a school space where asbestos abatement work haS
ocurred is suitable for children and teachers when it does not exceed 70 slmml. then we should
have a comparable level of comfort when ambient air in downtown Manhattan does not exceed
the same 70 s/mm2 value.23 And indeed. except for a few instances in the days soon after the
disaster, and at monitoring locations closest to Ground Zero, that value has rarely been
exceeded.24

three "field blank" filters is also below the specified "filter background level" of 70 slmm2 (see
text, above). 40 CFR §763.90(i)(3).

21 "Structures" is the tenn of art used to describe the tiny objects that are identified
as asbestos when examined microscopicalJy using the TEM method. This identification is made
based on size. shape and proportion, rather than through chemistry or similar means. A
"structure" is defined as a "microscopic bundle, cluster, fiber, or matrix which may contain
asbestos," 40 CPR Part 763, Subpart E, Appendix A, n.21. A "fiber" is definied as a "structure
greater than or equaJ to 0.5 p.m [micron] in length with an aspect ratio (length to width) of 5: 1 or
greater and having substantially parallel sides." Id. at n.9. The terms "bundle," "cluster" and
"matrix" are all defined as groups of fibers. Id. at n. 4., n. 6. and n.14.

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

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

24 As of January I, 2002 EPA had collected and analyzed a total of 4.319 air samples
for lower Manhattan, of which 30 samples (0.7%) yielded results above the standard of 70

16
Air Quality Concerns Related to the WTC Fires

The fires first ignited by the jet liners crashing into the Twin Towers continued to bum
for many weeks in the massive pile of rubble left by the buildings· collapse.2S

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

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

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

s/mm2 • (Of these, 27 were collected prior to September 30; the three others were collected ne,ar
Ground Zero on October 9. November 27 and December 27.) Additional samples have been
taken at locations in northern Manhattan and in the outer Boroughs, and show no levels
exceeding the AHERA standard. ~ www.epa.gov/epabome/wtc/datasummary.htm. Note,
further. that ambient air levels above 70 s/mm2 do NOT imply an immediate health threat.
Asbestos exposure becomes a health concern when high concentrations of asbestos fibers are
inhaled over a long period. IUness is very unlikely to result from a single, high-level exposure,
nor from a short period of exposure to 10wer levels. ~
www.epa.f:Qv!e.pahQmelwtclactiyjties.htm.

2S Not until late November or early December had enough debris been removed to
sufficiently control or extinguish these fires so that they were no longer a frequent source of
irritation to residents and employees in the surrounding area.

26 There were also tanks of fuel oil and freon coolant below the WTC.

17
generate I-year equivalent values, on the assumption that exposures to these pollutants would
extend for less than one year. Existing OSHA standards were also used for benzene and other
VOCs. For most of these hazardous air pollutants. related to the fires, levels of concern were
almost never detected outside the immediate area of Ground Zero. Even there. the frequency
with which levels of concern were detected was generally quite low from the outset. and dropped
off as the fires were brought under control.Z7

Fine Particul@te Matter in Ambient Air

A variety of sources associated with the WTC disaster contribute particulate matter into
the air. These include the dust from the origina1 collapse; the re..entrainment of that dust during
response operations, and emissions from the many diesel-fueled vehicles and equipment used for
the response effort. Unlike many of the other emissions discussed above. EPA has promulgated
National Ambient Air Quality Standards (NAAQS) for particulate matter, and specifically for
"fine" particulates - those smaller than 10 microns in size (pM1O> and, more recently. for
particulates smaller than 2.S microns (pM1.s)' The sma1ler particulates are judged to create a
greater risk. because they can be breathed into the lungs more deeply and easily.

EPA and State and loca1 agencies were able to draw on the existing network of particulate
monitoring stations for data in the aftermath of the wrc attack. Like other environmental data
associated with the disaster, these data can be found on the EPA web site previously referenced,
which also provides links to the NYSDEC web site where data from the State's monitoring
network is published. With only a very few exceptions in the first days after 9·11, no
exceedences of the NAAQS for either PM IO or PMu were detected.

The Anthrax Attaw

A completely different and more insidious kind of terrorist attack was the mailing of
anthrax-laced letters in mid-September, 2001. A number of letters, containing a potent form of
anthrax (reported to be what is known as the Ames strain, originally developed at a lab in Ames,
Iowa), were mailed to a variety of addressees. It appears that contamination from those letters -
both directly and through cross-contamination of other pieces of mail - caused anthrax: infections
in a number of persons, including postal workers and other citizens who were not addressees.

7:1 Benzene was the hazardous air pollutant detected at the most elevated levels.
although almost exclusively at ground level in the WTC work area (i.e., below the "breathing
zone" for a worker of ordinary stature). Outside the WTC work area, benzene values were never
recorded at more than a small fraction of the selected reference values. Several samples showed
levels of concern for lead in the first two weeks at sites near Ground Zero; PCBs were never
detected in the air at levels of concern; and dioxin levels of concern were detected a few times in
the first month. but only very near Ground Zero.

18
 EPA has been actively involved in the response to the anthrax threat. EPA has had the
lead responsibility for the decontamination of the Hart Senate Office Building in Washington,
D.C., contaminated by an anthrax-filled letter addressed to Senate Majority Leader Tom Daschle.
EPA also participated in the initial response to the contamination of the Miami newspaper office
building where the first case of anthrax was identified; and, to a lesser extent, the response to
other instances of anthrax contamination such as that at the Morgan Processing and Distribution
Center, a major postal facility in mid-town Manhattan (through which passed the anthrax-fined
letter addressed to teJevision news anchor Tom BrokaW).28

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

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

As we shal1 see below, it is important to note here that the second of these three
allegations was required for the plaintiff to avoid the otherwise mandatory 60- or 90-day period
for advance notice to EPA before such a suit may be filed. See §7002(b} of RCRA, 42 U.S.C.
§6972(b). In other words. only by alleging a subchapter m violation could the postal workers
union file its complaint prior to expiration of the applicable 60- or 9O-day periods. as indeed it
did. Subchapter ill, also known as Subtitle C of RCRA. is the section of the law that authorized
EPA to promulgate the familiar hazardous waste regulations applicable to generators.
transporters. and owners and operators of treatment. storage and disposal (TSD) facilities. These
regulations are codified at 40 CPR Parts 260 et seq.

2& EPA Region 2 has had two On-Scene Coordinators assigned to the Morgan Post
Office building; however, the United States Postal Service has been the lead agency for response
to post office contamination, inc1~ding at the Morgan building.

29 Smith et al. v. Potter. 01 Civ. 9512 (SDNy), filed 10/29/01. William Smith is
President of the New York Metro Area Postal Union. John Potter is the Postmaster General of
the United States. A similar suit was subsequently filed against the U.S. Marshall's Service and
its contractor by the union representing court workers in the federal courts in Manhattan; and
another was filed inv01ving the New York State courts.
30
The suit also includes a common law nuisance claim under New York State law.

19
 The plaintiffs asked the court for both a preliminary and a pennanent injunction against
the operation of any mail facility found to contain anthrax spores, including Morgan, and to
require testing at all facilities that received mail processed through Morgan. and to close any
facmty that tests positive for anthrax.

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

On November 9 the court denied the requested preliminary injunction to c10se Morgan.32
On November 15 the court issued a more complete opinion and order, in which it concluded inter
alia that the USPS' activities with respect to the anthrax contamination at Morgan did not pose
an imminent and substantial endangennent under RCRA. 33

The court did not rule on whether the anthrax constituted a RCRA "solid waste" or
"hazardous waste." Those are, however, among the most important and fundamental questions
raised by the lawsuit. In considering these questions it is, moreover, necessary to parse even
more finely: one must analyze whether the anthrax is a "statutory hazardous waste" - i.e.•
satisfying the definition in the statute itself - and, separately, whether it is a "regulatory
hazardous waste" - i.e., satisfying the definition in the EPA regulations promulgated pursuant to
Subtitle C (subchapter III) of RCRA. Somewhat counter-intuitively, these two definitions are
not the same~ rather, Subtitle C regulatory hazardous wastes are a smaller subset of statutory
hazardous wastes. 3oC

31 Fortunately. to date none of the postal workers at the Morgan facility have
contracted anthrax.
32
~ Order Denying Preliminary Injunction. dated November 9, 2001.

33 Smith v. Poner, 2001 WL 1448460 (Nov. 15,2001 S.D.N.Y.). The Court found
that the USPS "had taken appropriate remedial measures to diminish any safety risk created by
the presence of anthrax at the Morgan Facility," and that "thanks to the remedial actions
employed. the continued operation of the Morgan Facility currently poses no imminent and
substantial risk to the health or environment." Order at 5, 7. The court also concluded that the
federal government had not waived sovereign immunity to injunctive reUefbased on the public
nuisance cause of action. The court did require additional testing and reporting of the resullS
back to the court.

30C Stated another way, all regulatory hazardous wastes are statutory hazardous
wastes, but not all statutory hazardous wastes are also regulatory hazardous wastes.

20
 As anyone who has dealt with RCRA is well aware, both the statutory and regulatory
definitions of these terms are deceptively complex, and it is not always easy to detennine how a
particular substance. used a particular way, or generated by a particular process or activity,
should be characterized.

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

" ... a solid waste, or combination of solid wastes, which because of its quantity,
concentration, or physical, chemical or infectious characteristics may _.
(A) cause, or significantly contribute to an increase in mortality or an increase in
serious irreversible. or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored. transported, or disposed of. or otherwise
managed." 42 U.S.C. §9603(5).

Anthrax self-evident1y satisfies the criteria for hazardousness in both (A) and (B), above.
However. in order to be a "hazardous waste" a substance must first be properly classified as a
"solid waste" and thus the definition of the latter term is of central importance. That term
broadly encompasses any garbage. refuse, sludge or other discarded materials. 42 U.S.C.
§6903(27). With respect to the classification of anthrax from the terrorist letters. the key
question is if and when it can be characterized as having been "discarded. That word is not
tt

itself further defined in the statute.

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

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

lS A "solid waste" is defined at 40 CFR §261.2(a)(1) as "any discarded material"

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

21
discussion, what is important about the regulatory definitions and listing of hazardous waste is
that anthrax is definitely not included. The RCRA Subtitle C regulations identify regulated
hazardous wastes either by characteristic or by listing. 40 CPR Part 262. Anthrax displays none
of the four characteristics by which a soHd waste may be identified as a hazardous waste (i.e.,
toxicity. corrosivity. reactivity or ignitability; 40 CPR §261. Subpart C); nor does it appear on the
lists of chemicals or industrial process wastes which, if solid wastes, are defined as hazardous
wastes pursuant to the regulations (40 CPR Part 261, Subpart D).

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

(An interesting but ultimately tangential question related to this issue concerns RCRA
state authorization. The hazardous waste regulatory program of New York, like many other
states, has been authon:-.ed by EPA under §3006 of RCRA, 42 U.S.C. §6926. The authorized
portions of a state's program are applied in Heu of the comparable federal regulations. It is
possible that anthrax might satisfy a state's criteria for a regulatory hazardous waste, However,
to the extent authorized state regulations are "broader in scope" than the federa1 regulations. the
broader portions are not federally enforceable.lIS The identification by a state of a substance as a
hazardous waste which is not so identified under the federal rules is the classic example of state
regulation that is "broader in scope" than the federal rules.:n Thus, even if a state listed anthrax
in its federaUy authorized hazardous waste rules, the federal government and the federal courts
would lack jurisdiction to apply the RCRA regulatory requirements to that sUbstance. J8)

or discharged into any waters. including ground waters,"

16 EPA regulations expressly provide that "[wJhere an approved State [hazardous

waste] program has a greater scope than required by Federal law, the additional coverage is not
part of the Federal1y approved program." 40 C.F.R. § 271.1(i)(2). (This is distinguished from
state regulations that are more stringent than the federal rules; when authorized, these are
federally enforceable.)

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

311 The government has also argued in its January 11,2002 Motion to Dismiss the
complaint in Smith v. Potter that, in any event, the Complaint wrongly cited violations of federal
RCRA regulations, rather than the New York State rules authorized by EPA pursuant to RCRA
§3006, 42 U.S ,C. §6926. Citing a number of cases, the government asserts that because
plaintiffs' subchapter in causes of action only refer to federal, not state, violations, they should

22
 That anthrax is not a regulatory hazardous waste is a conclusion that has a potentially
important implication for the Morgan facility lawsuit. It could be argued that the case oUght not
to have been filed before the expiration of the statutory 60- or 90-day notice period, as in fact it
was. As noted earlier, immediate filing is permitted under RCRA §7002(b) only if a subchapter
ill violation is alleged. The postal workers' lawsuit certainly alleged such a violation, but as
shown above, no such violation could possibly exist since anthrax is clearly not a "regulatory
hazardous waste/' and subchapter m applies only to such regulatory hazardous wastes;

An interesting question. then. is whether or not the mere allegation of a subchapter ill
violation, no matter how unsupportable, is sufficient to defeat the requirement that the plaintiff
wait until the expiration of the statutory notice period. However, that issue has not been
addressed in Smith v. Potter.

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

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

1. when the terrorist first acquired the anthrax andlor manufactured the anthrax-laden
powder;
2. when the terrorist deposited the letters into the mailbox;
3. when the letter was being processed through one or another mail facility, and spores
began to leak out of the envelope and contaminate equipment and surrounding areas~
4. when the Jetter reached the addressee and was opened;
5. or finally, when the escaped anthrax spores were found at the Morgan Post Office facility.

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

be dismissed.

23
people - and have thus not been disposed of, abandoned, or thrown away.J9 Regarding the
terrorist's "state of mind." this analysis may be accurate enough. so far as it goes. But contrary
arguments could also be made, at least with respect to timeline point 2, at which moment the
terrorist relinquishes custody of the letter to the USPS.

At the other end of the timeline - point 5 - the issue is much more clear. Once .anthrax
spores have been found by the USPS in its own facility. the "state of mind" of the terrorist is of
no further possible relevance. Upon discovery. the USPS will inevitabJy undertake to dispose of
the spores (safely, of course) at the earliest possible time and i~ the most effective and complete
way. At that point on the timeline the spores can definitively be said to have been "discarded,"
and they would therefore constitute a statutory (though still not a regulatory) hazardous waste.40

39 This argument builds on some of the reasoning in Connecticut Coastal

Fisherman's Assn v. RemingtonAnns Co.• Inc., 989 F.2d 1305 (2d Cir, 1993) and No Spray
Coalition. Inc. v. City of New York. 2001 WL 604987 (2d Cir. 2(01). See following note.
Indeed, essentially this argument was advanced in a brief filed by the U.S. in oppOsition to the
preliminary injunction demand in the Smith case. However. that argument was later retracted
after the matter was considered further by USPS and the Department of Justice in consultation
with EPA. ~ Government's January 11 Memorandum in Support of DefendanCs Motion to
Dismiss.

40 This analysis is consistent with the positions taken by EPA in some analogous
situations. For example, EPA has long held that spilled materials or materials that leak from a
barrel are solid waste. And unused military munitions are solid waste if and when the custodian
decides to throw them away. Nor is this analysis inconsistent with the Second Cin:::uit decisions
cited in the previous note. In Connecticut Coastal, the court refused to decide whether the lead
shot and clay targets that fell into Long Island Sound as the result of past activities at a shooting
range feU within the narrow regulatory definition of "solid waste." The court agreed with EPA
that the spent lead shot and targets. which had been accumulating for about 70 years, had
"accumulated long enough to be considered solid waste" under the broader statutory definition.
The court did not decide whether the lead shot and targets were statutory solid waste at some
earlier point in time. Notably, the entity that controlled the spent shot and target in the Sound
was not treating it as discarded material. which is very different from how the USPS treated
anthrax once it was discovered at its facility. In No Spray. the court concluded that pesticide
applied through aeriaJ spraying was not a statutory or regulatory solid waste because it was not
discarded until after it served its intended purpose of reaching and ki1ling mosquitoes and their
larvae. This case, too, is distinguishable because (a) no one was treating the pesticide as a
discarded material. as USPS treated anthrax. Both the pesticide manufacturer and applicator
intended the substance to be used as a pesticide to kill mosquitoes and their 1arvae. In contrast,
the laboratory that originally created the Ames strain of anthrax (the strain found in the terrorist's
letters) produced it for use in research, and not as a terrorist weapon. Moreover, whiJe the
pesticide applicator intended to use the pestiCide to kill pests throughout the application area,
addresses on the 1etter indicate that the person mailing the letters intended them to be used

24
A similar analysis can be made for timeline point 4, especially if the recipient of the letter knows
or suspects the contents to be anthrax.

The argument is a little more complex at timeline point 3. Here, the spores have escaped
the envelope, but the USPS is not yet aware of that fact. Some interesting legal arguments could
be made about this moment on the timeline~ but the issue is entirely academic and need not
concern us too much. After all, if nobody is aware that anthrax spores are present, it driesn't
make much practical difference whether or not they can theoretically be characterized as a
statutory hazardous waste.... 1

Even though the anthrax spores are conceded to have been "discarded" by no later than
the time when they were found by the USPS in the Morgan faciJity, in order to prevail the
plaintiffs must stin prove that the USPS' "handling, storage, treatment, transportation, or
disposal of any [anthrax] may present an imminent and substantial endangerment to public health
or the environment." In its initial decision. denying the requested preliminary injunction, the
court detennined that no such endangerment continued to exist (i.e., after the cleanup work
already carried out by the USPS) ..42

A final legal hurdle for the plaintiffs is that the response of the USPS to the anthrax at the
Morgan facility has been identified as a Superfund response action under § 104 of the
Comprehensive Environmental Response, Compensation and IiabiHty Act (CERCLA), 42
U.S.C. §9604 ..43 This confronts the plaintiffs with the prohibition against commencement of a
RCRA citizen suit for imminent and substantial endangennent where a Superfund removal or
other response action has been commenced. 42 U.S.C. §6972(b)(2)(B).44 That provision is

against the addressees, and not against people in the postal service. In any event. once USPS
decided to clean up the contamination, the spores were no longer being used to further the
terrorist's presumed purpose. '

41 This may be the environmental Jaw analog to the philosopher's old saw: "if a tree
falls in the forest, and nobody is there to hear it, did it make a sound?"
42
Smith v. Potter, 2001 WL 1448460 (Nov. 15.2001 S.D.N.Y.).

43 Like the heads of other federal agencies, the Postmaster General has been
delegated the authority to carry out CERCLA removal actions at facilities controlled by his
agency. The Postmaster has executed an action memorandum approving under CERCLA the
removal action at the Morgan facility. ~ Memorandum of Law in Support of Defendant's
Motion to Dismiss, Smith v. Poner, filed Ian. 11,2002.

44 That the USPS undertook the CERCLA §I04 removal action rather than the EPA
should not alter the conclusion that a citizen suit would be barred under RCRA §7002(b)(2)(B).
which refers to actions taken by the "Administrator" of EP A. ~. e.g., Reynolds v. Lujan, 785 F.
further bolstered by the statutory prohibition against pre-enforcement review of any chaJlenge to
a Superfund response action, set out in §113(h) of the Comprehensive Environmental Response.
Compensation and liability Act (CERCLA). 42 U.S.C. §9613(h). Implicitly, the RCRA citizen
suit represents a challenge to the USPS' Superfund response action at the Morgan facility, and
would thus also be barred by this provision of CERCLA.

Cosine Note

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

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

26
 APPENDIX A

Seetion 7002 of RCRA, "CitlWn Suits"

This section provides. in pertinent part:

"(a) In general.
Except as provided in subsection (b) or (c) of this section, any person may
commence a civil action on his own behalf-
(l)(A) against any person (including (a) the United States, and (b) any other
governmental instrumentality or agency. to the extent pennitted by the eleventh
amendment to the Constitution) who is alleged to be in violation of any pennit, standard
regulation, condition, requirement. prohibition, or order which has become effective
pursuant to this chapter; or
(B) against any person. including the United States and any other governmental
instrumentality or agency, to the extent pennitted by the eleventh amendment to the
Constitution, and including any past or present generator, past or present transporter, or
past or present owner or operator of a treatment. storage, or disposal facility, who has
contributed or who is contributing to the past or present handling. storage, treatment.
transportation, or disposal of any solid or hazardous waste which may present an
imminent and substantial endangerment to hea1th or the environment ....

(b) Actions prohibited

(1) No action may be commenced under subsection (a)(l)(A) of this section-
(A) prior to 60 days after the plaintiff has given notice of the violation to-
(i) the Administrator [of EPA];
(ii) the State in which the alleged violation occurs; and
(iii) to any alleged violator of such permit, standard. regulation. condition,
requirement, prohibition. or order,
except that such action may be brought immediately after such notification in the case of
m
any action under this section respecting a violation of subchapter of this chapter; or
(B) if the Administtator or State has commenced and is diligently prosecuting a
civil or criminal action in a court of the United States or a State to require compliance
with such permit. standard, regulation, condition, requirement, prohibition, or order....

(2)(A) No action may be commenced under subsection (a)(1 )(B) of this section
prior to ninety days after the plaintiff has given notice of the endangerment to -
(i) the Administtator;
(ii) the State in which the alleged endangerment may occur; and
 (iii) any person alleged to have contributed to or to be contributing to the
past or present handling, storage. treatment. transportation or disposal of any solid or
hazardous waste referred to in subsection (a)(l)(B) of this section,
except that such action may be brought immediately after such notification in the case of
any action under this section respecting a vioJation of subchapter ill of this chapter.
(B) No action may be commenced under subsection (a)(1)(B) Oflhis section if
the Administrator; in order to restrain or abate acts or conditions which may have
contributed or are contributing to the activities which may present the alleged
endangerrnent-
(i) has commenced and is diligently prosecuting an action under ...
section 106 of [CERCLA];
(ii) is actua1ly engaging in a remova1 action under section 104 of
[CERCLA];
(iii) has incurred costs to initiate aCn RIIFS] under section 104 of
[CERCLA); or
(iv) has obtained a court order (including a consent decree) or issued an
administrative order under section 106 of [CERCLA] or section 6973 of this title
[RCRA §7003] pursuant to which a responsible party is diligently conducting a
removal action, ... RIlFS .., or proceeding with a remedial action ....

28
NYC DOH - Recommendations for People Re-Oc...ings and Residents Re-Entering Their Homes http://www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html

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

New York City Department of Health

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

Recommendations for People Re-Occupying Commercial Buildings

and Residents Re-Entering Their Homes

What steps should I take upon returning to my workplace or home?

If you were evacuated from a residence or workplace south of Warren Street, west of Broadway, and north of
Exchange Street, and have been approved to resume tenancy by your building manager, you are advised to wear
a dust mask upon entering this area to decrease the possibility of dust inhalation and throat irritation. Outside
these boundaries, masks are not necessary, but may be worn for your own comfort. If there is dust present
indoors, it should not be necessary to wear this mask if you follow the cleaning procedures detailed below.

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

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

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

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

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

What should I do with food left in my apartment?

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

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

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

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

To reduce dust recirculation, the Health Department recommends using HEPA (high efficiency particulate air)
filtration vacuums when cleaning up apartments, if possible. If a HEPA vacuum is not available, it is
recommended that either HEPA bags or dust allergen bags be used with your regular vacuum. If these options
are not available, wetting down the dust and removing it as described above is recommended.

Carpets and upholstery can be shampooed and then vacuumed.

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

How can I remove dust from the air?

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

Additional recommendations include:

Keep outdoor dust from entering the home;

Keep windows closed;
Set the air conditioner to re-circulate air (closed vents), and clean or change the filter frequently;
Remove shoes before entering the home for several days (once you first make sure there is no broken
glass)
Avoid sweeping or other outdoor maintenance.

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

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