Law Department notice on WTC document preservation, Oct 2001

NYC 9/11 Public Portal Document

guidance document that addresses the applicability of the Asbestos NESHAP to emergency situations discussed the Gramercy Park incident and concluded that a Federal response under CERCLA could have been undertaken if deemed necessary. However, in this case a Federal response was not needed in light of the City’s response.

• In 1999, under its CERCLA authority and in cooperation with local health authorities, EPA started testing homes in Libby, Montana, and conducting other emergency removal activities. Asbestos contamination in Libby and EPA’s response to that incident have been compared to the WTC situation. The contamination in Libby resulted from many years of mining activity, as well as extensive community use of by-products from the mine. Cleaning of residences and businesses in Libby, which was designated a Superfund site on November 25,2002, is projected to be completed in 2005.’

Conclusions For indoor environment concerns resulting from the collapse of the WTC towers, EPA had the authority to act under CERCLA but was not obligated to do so. Guidelines exist for determining whether an emergency response is warranted; however, these guidelines are not definitive. Under the NCP, it was within EPA’s discretion to defer to New York City the responsibility for responding to indoor contamination concerns. EPA’s action was consistent with the FRP, which is intended to supplement local government response.

Although EPA acted within its discretion, a 1998 Presidential directive and the more recent National Strategy for Homeland Security task EPA with taking the leadership role in cleaning up buildings and other sites contaminated by chemical or biological agents as a result of an act of terrorism. EPA needs to work with the Department of Homeland Security and other agencies to determine the nature and form with which the Federal government should assume a more direct role in addressing indoor environment concerns, under what circumstances this direct role should occur, and the oversight mechanisms to be employed when local agencies undertake such responses. In the WTC case, the delay in providing a government-organized and adequately monitored cleanup in Lower Manhattan may have contributed to unnecessary exposures to asbestos and other pollutants by unprotected workers and residents.

9 The indoor air clearance memorandum for Libby had not been finalized at the time we drafted this report. A preliminary clearance level of non-detect for asbestos was being used; based on the method detection limit used in Libby, the clearance level being used is similar to the clearance level being used for residences in Lower Manhattan.

29 Report No. 2003-P-00012

NYC-WTC_000145384