Memo forwarding revised Law Department document, Aug 2003

NYC 9/11 Public Portal Document

was asbestos in these buildings. There is no evidence to support a claim that any significant number of buildings were contaminated with asbestos. Both the sampling conducted by many agencies and New York City’s response to complaints concerning asbestos, where out of over 300 responses to complaints there was 1 finding of asbestos at above the threshold level. This section also is not appropriate for this substantive section of the EPA report. The City does not dispute that there was criticism, but the criticism is irrelevant to whether the City and EPA followed the appropriate statutes, regulations and procedures. While the criticism may provide a basis for the reason for conducting the EPA Report, it does not provide any basis for the findings in the report. To include the criticism in the substantive portion of the report in the maimer in which it is included is unduly prejudicial to the City. Accordingly, the City recommends that this section be deleted.

3. Concerning the second sentence in the paragraph labeled “Initial Actions Taken by New York City and EPA” on page 1, although the City was not provided with the documentation, the City does not dispute that there is EPA documentation concerning the alleged statement by the City. The documentation which appears to be quoted on page 4 and 5 of the revised report, refers to a conversation between the EPA and the U.S. Public Health Service and the New York State Department of Health, where these agencies allegedly relayed to EPA the alleged statement by the City. This is not the type of reliable evidence that should be required to support findings in an Inspector General report. The City carmot confirm or deny the statement given the vagueness of the statement. The City, however, can state that it welcomed any authorized federal assistance at that point in time. To include this statement is unfair to the City. The City therefore recommends that the statement be deleted.

4. Concerning the last sentence in the first full paragraph on page 2, the City believes that EPA Region 2’s comment that it did not want to take a more assertive stance because it would create a confrontation is not valid for more reasons than just that EPA was the lead agency for Emergency Support Function #10. From September 12, 2001 to the end of the Response Effort, the EPA was thoroughly involved in the effort. EPA had a “seat at the table” as demonstrated by the documents submitted by the City. Moreover, there was a cooperative relationship with the City. In fact, when at a point in time during the Response Effort, EPA suggested that its functions be turned over to a contractor, the City urged the EPA not to do this and to continues to be part of the team. To suggest that EPA could not become more assertive or involved is inconsistent with the evidence.

5. The first paragraph in the section labeled “New York City’s Initial Response” on page 2 is somewhat misleading. It fails to mention that the City’s procedure in the past was to hold buildings owners responsible for cleaning up their buildings and that in previous disasters, the federal government did not provide for federal funding to municipalities to clean privately owned buildings. The City consequently had no authority to request reimbursement for this activity and no authority to enter privately owned buildings, without the owner’s consent to effect such a cleanup. Thus, the second sentence is also somewhat inaccurate. We recommend that the first three sentences be modified as follows: “Consistent with past practices and federal law, building owners were initially held responsible for cleaning of their own buildings. According to New York City officials, the issue of funding cleaning privately owned buildings was discussed with FEMA and the EPA. Initially, the federal position was that the Stafford Act, the statute which provides authority for federal disaster response, did not provide funding for C:\Documents and Settings\janema\Local 2 08/05/03 4:33 PM Settings\Temporary Internet Files\OLK20\law dept August 4 2003.doc

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