TESTIMONY OF U.S. REPRESENTATIVE JERROLD NADLER (D-NY)

Submitted to The Senate Committee on Environment and Public Works

Subcommittee on Clean Air, Wetlands, and Climate Change

February 11, 2002

Thank you, Chairman Lieberman. I would like to thank you and Senator Clinton for holding this field hearing today, and for inviting me to testify, regarding the continuing impact of the September 11 tit attacks on the air quality in Lower Manhattan.

As the Congressman representing “Ground Zero” and the surrounding area, I am deeply concerned about the environmental and health effects posed by the collapse of the World Trade Center for my constituents, and for those who go to school or work in the area. It has now been exactly five months since the terrorist attacks and, unfortunately, the people in Lower Manhattan still do not know whether or not it is safe to live and work in the area. The Environmental Protection Agency (BPA) has failed in its mission to “ . . . protect human health and to safeguard the natural environment . . .” by not exercising its full authority to test and clean all indoor spaces where people live and work. As such, the EPA has created a full-scale crisis of public confidence.

Yet, all is not lost. The EPA can and must act now to remedy this situation and make Lower Manhattan safe and to restore public trust. Despite statements to the contrary, the agency does currently have the authority and resources to do so, and it must do so quickly. However, if the EPA continues to fail New Yorkers, I will introduce legislation to mandate action.

I am going to begin by being very blunt. We now know enough to be alarmed and outraged at the federal government's response to the environmental impact of 9/11. First, we know that EPA Administrator Christine Todd Whitman misled the public on September 18th, 2001 when she said she was “glad to reassure the people of New York that . . . their air is safe to breathe, and their water is safe to drink.” She made that statement without the indoor data necessary to make such a pronouncement. Second, we know that the EPA has made a series of conflicting comments about the presence and quality of hazardous materials, and has even knowingly withheld critical data regarding the causticity of the dust. Third, we know that the EPA delegated authority to New York City to handle indoor environments, but did nothing to ensure that the City's response was appropriate. This left New Yorkers to their own, uninformed devices, often without the means to take care of themselves and their families. This is true even as the EPA had its own building at 290 Broadway professionally tested and cleaned. And finally, we know that the EPA has treated New York differently than it has treated other locales contaminated by hazardous materials. New York was at the center of one of the most calamitous events in American history, and the EPA has essentially walked away.

Ms. Whitman's statement, reassuring the public about the safety of air and water, which has been echoed by many at all levels of government, was based only on the EPA's outdoor tests --the results of which are still in dispute. At that time, there had been no systematic testing of indoor air or dust in residential or commercial buildings by any government agency, let alone by the EPA. In fact, the EPA did not intend to do testing even of outdoor air in residential areas of Lower Manhattan until my Ground Zero Elected Officials Task Force requested that it do so on September 21st. Ironically, the very first public testing conducted inside residences, which was commissioned by our Task Force, commenced on the very day Ms. Whitman made her --- misleading statement. The results were made available to the EPA on October 12th. The test results showed elevated levels of hazardous materials in these residences. The EPA did nothing and Ms. Whitman did not adequately clarify her statement.

In recent weeks, the EPA has stated repeatedly that the City of New York, not the EPA is responsible for indoor testing. The City, however, didn't get around to testing inside homes until November and December. The full results of these test are still not available and, according to the Health Department, won't be until the Spring. I do not understand why the results of tests undertaken by a public agency are being delayed for public release. Our test results took less than a month to be released. Nevertheless, just three days ago, the City Department of Health issued a press release regarding this limited indoor testing. Despite a pacifying headline, many the limited data in the press release has caused the scientists with whom we've consulted to believe that full results would directly contradict Ms. Whitman's statement. The release does make it clear, as did our commissioned study, that there were disconcerting levels of hazardous materials in peoples' apartments.

Ms. Whitman’s reassurances are deeply confusing in light of other statements made by agency officials and of other information we now have that the EPA has not itself released. For example, in a copy of a January 25, 2002 speech given by Walter Mugdan, EPA Region II counsel, which I have obtained, I find that he states, “ . . . a significant number of the WTC bulk dust samples that we analyzed did have more than 1% asbestos.” But an Oct 3rd 2001 EPA memo “Confirm[ing] No Significant Public Health Risk” states, “The vast majority of EPA and OSHA samples of air and dust analyzed for asbestos have been at levels that pose no significant risk to residents and workers returning to their homes or area businesses.” This statement has been made repeatedly by EPA Region II officials. How are New Yorkers to interpret these conflicting remarks? I can't even tell you what they mean -except that they cannot both be true

Confusing remarks are one thing; withholding critical data pertaining to the public health is another. We know that it took a Freedom of Information Act request by the New York Environmental Law and Justice Project to get test results showing dangerous levels of hazardous materials in outdoor ambient air. The EPA claimed that this was an “oversight.” But now we have a new, frightening bombshell.

According to this Sunday's St. Louis Post Dispatch, the United States Geological Survey (USGS), using the country's best detection equipment and methods, found pH levels in World Trade Center dust that are “ . . . as corrosive as drain cleaner” and passed this information along to health experts at the EPA on a “government-only” website. That's right. As corrosive as drain cleaner. (By the way, it took less than 2 weeks in September for these test results to be ready.) I submit this article for the record.

Andrew Schneider, the paper's Pulitzer Prize-winning environmental journalist, charges, “the USGS data was not released by the EPA nor apparently were the environmental agency's own test results on the dust.” The EPA claims to have released this data to the public, but when Schneider reviewed all of the EPA's statements made since 9/11, he found nothing that warned of these high pH levels. According to the New York Committee for Occupational Safety and Health (NYCOSH), such dust “once it’s in contact with moist tissue -- the throat, the mouth -- nasal passages, the eyes and even sweaty skin -- it becomes corrosive and can cause severe burns.” This is utterly scandalous. We must find out why the EPA hid this information from the public and we must see all the data now. I hope that Senators Clinton and Lieberman will join me in calling on the federal government to explain why New Yorkers were misled, and to demand the immediate release of the full compliment of data.

The EPA has not only provided false reassurances and misleading information. The EPA has also abrogated its responsibility to act. In a statement issued on January 17th in response to a press conference I held, the EPA states that it, “has lead [sic] the effort to monitor the outdoor environment while the City of New York has taken the lead regarding the preoccupancy of buildings.” At least the ERA admits that it has delegated authority to the city. Unfortunately, the EPA has yet to provide any justification for doing so, nor has it provided any evidence of the oversight measures it is compelled to take to ensure that the city is acting in accordance with the strictest federal standards. On January 23rd, I sent a formal inquiry to Administrator Whitman asking for answers to these and other questions about the City's response, which I submit for the record today. It has been over three weeks since the letter was sent and I have yet to get a response.

The EPA might say today, as it has in the past, that it does not have the proper legal authority to take the steps we are requesting to test and clean the areas affected by the collapse of the World Trade Center. It will probably say that the Clean Air Act, for example, does not govern indoor air and that it is therefore the responsibility of the local and state governments, or even that of the landlords and residents themselves. This is, again, all utterly misleading.

Under Section 303 of the Clean Air Act, the EPA has the authority in an emergency situation 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 Senate Report from 1970 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 emergency action plan should be implemented.” In short, the EPA should not wait for people to actually get sick before it acts, and it clearly has the authority to act under this law. Indeed, an EPA memo entitled “Guidance on the Use of Section 303 of the Clean Air Act” was issued to the Regional offices on September 15, 1983 outlining these very points. I submit a copy of this memo for the record.

But the Clean Air Act is not the only governing statute. The EPA has the authority to act on indoor air under the National Contingency Plan (NCP) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In fact, I understand that the EPA has indeed been utilizing some of the NCP protocols at Ground Zero -however, they have not relied on this authority, or any other, to test or remediate indoor environments.

As we speak, the EPA is in fact doing indoor testing and remediation in Herculaneum, Missouri and other locales without Superfund designation. We must learn why the EPA is treating New York differently and I ask the Senators present here today to help me find out. This double standard is unconscionable.

The EPA was unwilling to act on its own, and yet did nothing to ensure that those ostensibly charged with acting did “the right thing.” The EPA, on its web site and in public press releases referred residents to the New York City Department of Health, which recommended that people clean their potentially asbestos-laden dust with a “wet rag or wet mop.” Clearly such cleanup measures are inadequate, as seen by the EPA's own actions taken in its building at 290 Broadway. I again today ask why the EPA applied stricter measures to federal buildings than the City advised for local residences and business equidistant from the World Trade Center.

Given the lack of action, credible information or oversight, I believe the EPA has failed in its responsibility to protect the public health of the citizens of Lower Manhattan. This is quite simply shameful, for public health is the first thing we, as a government, must protect.

In order to ensure a full and fair public assessment on the EPA's actions following September 11th, I have also asked the EPA National Ombudsman, Robert Martin, to investigate these matters. Mr. Martin has been doing so, and I am disappointed he has not been invited to testify and share the status of his investigation with the Committee. However, I understand there is a time constraint today, so I have attached a statement from Mr. Martin to be included in the record. As you may also know, Administrator Whitman is attempting to place the Office of the Ombudsman under the control of the Inspector General, effectively stripping the Ombudsman of his independence and ability to investigate these claims. I sincerely hope that Administrator Whitman will stop her quest to eviscerate the office of the Ombudsman, and in so doing, further undermining the integrity of the agency.

I realize that I have leveled serious charges here today, but I believe I have the moral responsibility to do so. The salient point is that we still do not know the extent of the presence of hazardous materials in some areas of the city. It mayor may not be dangerous in many indoor areas of lower Manhattan -- we just don't know. I am dismayed that there seems to be unwillingness on the part of our public agencies to get this information. But given that we do not have all of the facts, we cannot conclude anything. I do know that we must get the facts and act swiftly and appropriately to get the job done right.

We must not fall into the Catch-22 of saying there is no evidence of a public health emergency without taking any steps to get such evidence. And the burden should not be on the landlords and residents themselves when the testing procedures and cleanup measures are expensive and must be conducted by properly trained personnel.

The EPA has the statutory and regulatory authority to test and remediate indoor environments in Lower Manhattan, and has exercised such authority elsewhere. I am calling on the EPA today to immediately commence a program of full-scale testing and remediation using the best available technology, and to make a report of all such test results and actions available to the public. The EPA must also issue the test results in a manner which is tied directly to health standards, so that we can truly assess the public health risk posed to the people of Lower Manhattan. And finally, testing procedures should in no way impede the expeditious remediation of hazardous materials found by other government agencies or private researchers. Similarly, should the EPA find dangerous levels of hazardous materials before the full spectrum of testing is completed, cleanup measures should commence immediately.

If the EPA fails to act again, despite its current authority, compel it I will introduce legislation to do so.

People might say that the measures I am requesting here today are expensive. That may be, but we must protect the public health. And although the cost may be high today, imagine what the cost will be in the future if it turns out that they’re really are dangerous levels of hazardous materials in Lower Manhattan. Imagine the City's and EPA's contingent liability to lawsuits twenty years down the road. And envision the potential health care costs.

It is in the best interest of the residents, workers, students and businesses for the government to act swiftly and appropriately to address the public's environment and health concerns. We cannot afford to wait while all the agencies point fingers at each other. There is still time to right this situation.

And time is of the essence. My office has received numerous complaints from people experiencing adverse health effects such as headaches, nosebleeds, and respiratory ailments. The symptoms are so widespread that they have been dubbed “The World Trade Center Flu.” Public confidence is at stake. People know when they are sick, they know when something is not right, and they know when they are being lied to. I sincerely hope that we do not have another “Love Canal” on our hands, but the best way to avoid that is to do the necessary testing and cleanup now.

Thank you for inviting me to testify before you today. I look forward to working with my colleagues in both chambers of Congress, and with all interested parties, to ensure that New York City is safe and prosperous for many years to come.