Law Department notice on WTC document preservation, Oct 2001

NYC 9/11 Public Portal Document

EPA also posted information on its public web site that recommended that indoor spaces with “more than a minimal amount of dust” be cleaned by a “professional asbestos contractor.” We could not identify the exact date this information was posted, but determined that it was on EPA’s web site by December 11,2001.

In February 2002, EPA initiated a multi-agency task force on indoor contamination. The former EPA Chief of Staff told us that EPA initiated this effort because “Over time, we saw that New York City was not prepared to handle all the issues related to indoor air and offered to support them.” The task force developed a plan in which EPA assumed the lead role for overseeing a FEMA- funded cleanup of residences in Lower Manhattan. EPA, New York City, and FEMA officials announced this plan to the public on May 8,2002. Residents of Lower Manhattan living south of Canal Street could request testing and cleaning of their residences, or just testing. Public registration for the indoor testing and cleaning program ended December 28,2002. This residential cleanup program is discussed in more detail in Chapter 6.

EPA Statutory and Regulatory Authority for indoor Environment

EPA does not have clear statutory authority to establish and enforce health-based regulatory standards for indoor air. EPA is provided the authority to respond to releases of hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund). Specifically, under Section 104(a) of CERCLA, EPA is authorized, consistent with the NCP, to remove or remediate any hazardous substance that is released into the environment, or any pollutant or contaminant that may present an imminent and substantial danger to the public health or welfare. Asbestos is a hazardous substance under CERCLA.

Neither CERCLA nor the implementing regulations under the NCP obligate EPA to undertake response actions. As provided in the NCP, “activities by the Federal and State governments in implementing this subpart are discretionary governmental functions” that do not create “a right to federal response” nor “any duty of the Federal government to take any response action at any particular time” (40 CFR § 300.404(h)(3)). Moreover, CERCLA contemplates State participation in response actions (42 U.S.C. 9621(h)), and the NCP allows for States to assume the lead agency role.

CERCLA only applies to the release of hazardous substances “into the environment.” CERCLA defines “environment” as “the navigable waters... and ... any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States.” Courts have held the emissions of dust within enclosed buildings are not releases “into the environment” and therefore are not CERCLA releases. However, in the WTC case, the contamination of indoor spaces was caused by an external event - the collapse of the WTC. The collapse itself caused a release of hazardous substances

27 Report No. 2003-P-00012

NYC-WTC_000145547