Panel agenda for Air Quality After 9/11 conference, March 2004

NYC 9/11 Public Portal Document

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 substances 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 not 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)0, 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 into the “environment” when a huge dust plume was released into the ambient air. Matter from the dust plume then entered buildings in the surrounding area. In such a case, when the release “into the environment” ends up contaminating enclosed structures, CERCLA provides the EPA the authority to take any actions necessary to eliminate or mitigate the threat to public health from the release.

“A 1998 Presidential Decision Directive (PDD62) tasked EPA with the leadership role in cleaning up buildings and other sites contaminated by chemical or biological agents as a result of an act of terrorism. This leadership role was discussed in the EPA Administrator’s November 28, 2001, testimony before a Congressional Subcommittee of the Committee on Appropriations, wherein she noted that:

Under the provisions ofPDD62, signed by President Clinton in 1998, the EPA is assigned lead responsibility for cleaning up buildings and other sites contaminated by chemical or biological agents as a result of an act of terrorism. This

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