World Trade Center document custody notice, Law Department

NYC 9/11 Public Portal Document

EPA claims that it is operating at the World Trade Center site under die Federal Response Plan (FRP), the FEMA plan which establishes a process for coordinating federal assistance pursuant to the Stafford Act.®’ EPA claims that, under the FRP, local governments have primary responsibility for responding to an event.™

However, EPA’s statement that it is merely following FEMA and the Federal Response Plan, and its characterization of this plan, is misleading for a number of reasons. First, the Stafford Act does not supercede file EPA statutes.’^ All activities under FEMA must comply with national environmental policies.” The Federal Response Plan also clearly states that other federal emergency response plans caimot be disregarded, but rather implemented concurrently when there is an incident involving hazardous substances.” The FRP specifically lists the NCP as one such emergency response plan.” JSecond- and most imnortandv. the FRP actually triggers the National Contingency PlanL™ According to the Code of Federal Regulations. ‘*the NCP applies to and is in effect when the Federal R :se Plan and some or all its Emergency Support Functions (ESFsl are activated.”^^ Therefore, if the EPA is not acting pursuant to the Natinnal Contingency Plan, it is in clear violation of die law.

Third, even if, for the sake of argument, the Federal Response Plan is the only plan in effect (which is clearly not the case), federal assistance is coordinated along thirteen Emergency Support Functions. The EPA is the primary agency responsible for coordinating Emergency Support Function #10: Hazardous Materials.’’ As the primary agency, the EPA has “operational responsibility” for orchestrating federal agency support and managing mission assignments in this area.’^ The EPA has no legal basis to shirk its responsibility in this regard.

The EPA might also say, as it has in die past, that it does not have die proper legal authority to test and remediate all areas affected by the collapse of the World Trade Center because the Clean Air Act does not govern indoor air. This is, again, utterly misleading. Section 303 of die Clean Air Act gives the EPA authority to protect human health when there is an “imminent and substantial endangerment” presented by a source of pollution.™ The intent of Congress is clear in this regard. A 1970 Senate Report on Section 303 states, “The levels of concentration of air pollution agents or combination of agents which substantially endanger health are levels which should never be reached in any community. When the prediction can reasonably be made that such elevated levels could be reached even for a short period of time - that is that they are imminent - an 42 use 5121, et seq. The Stafford Act is the statute under which FEMA operates. Whitman, Christine Todd, Letter to Congressman Jerrold Nadler, transmitted via fax February 22,2002. 44 CFR 206.5(f) ”44CFR10.4 ’’ Federal Response Plan: Basic Plan, April 1999, p. 11. (http://www.fema.gov/r-n-r/fip/fipbpln.htm) ’''ibid. ” 40 CFR 300.3(d) ’*Ibid. ” Federal Response Plan: Basic Plan, April 1999, p. 14. (http://www.fema.gov/r-n-r/fip/fipbplnJitm). Also cited at 40 CFR 300.130 (i). ’*Ibid.,p.28. ” 42 use 7603

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