Village Voice
Truth Out:
Sick of being lied to by the EPA, 911 plaintiffs
use the courts to force the answers they seek

by Kristen Lombardi
February 21st, 2006 12:26 PM

Jenna Orkin doesn't expect to hear her truth about 9-11 unless someone forces the officials involved to tell it. For her, as for so many people downtown and in Brooklyn, 9-11 meant clouds of ash and smoke engulfing her apartment building, filtering down the halls of her son's Tribeca high school.

Within days of the World Trade Center collapse, someone ordered Environmental Protection Agency administrators to tell New Yorkers the air was safe. Reopen Wall Street, and bring back its thousands of workers. Reopen Stuyvesant High School, which Orkin's son attended. Ignore Brooklyn, where residents like her vacuumed inches-deep white ash from their windowsills. No matter that private tests showed the air remained full of lead, asbestos, mercury, benzene. No matter that, according to documents forced out of the EPA by a Freedom of Information request, the agency's own tests agreed that the air in Lower Manhattan—who wanted to bother with Brooklyn?—wasn't fit to breathe.

Even without testing, anyone could see the billowing cloud of debris released when the 110-story twin towers came crashing down. Dust from the Trade Center hung in the air for weeks. Putrid fires burned for three months.

"Any half-wit knew it was hell after 9-11," Orkin says. She has been pressing the EPA to test for and clean up toxic dust in her Brooklyn Heights neighborhood, across the East River from ground zero and smack in the plume's path. After tests revealed high levels of asbestos in her home, she paid thousands of dollars for a full abatement, which included ripping up the carpets. Her World Trade Center Environmental Organization website, wtceo.org, is devoted to the 9-11 fallout and replete with aerial photos and satellite images of the plume.

Not content with activism, she is today one of 12 plaintiffs suing the EPA in a class action lawsuit on behalf of residents, office workers, and students from Lower Manhattan and Brooklyn. Unlike so many others who've gotten sick from WTC-related pollution— including many of the plaintiffs—she hasn't experienced any symptoms. And neither has her son. What she's sick of is not being told the truth.

"We were being duped," Orkin says, leaning forward, "and I'd like to find out why."

Now she and her fellow plaintiffs just might. On February 2, U.S. District Court Judge Deborah Batts handed down a surprising pre-trial ruling, blasting the EPA for its response to 9-11 and allowing the case to go forward. That put Orkin and her colleagues one step closer to proving their claims in court.

In their 111-page complaint, they allege that thousands of people living, working, and attending school downtown and in Brooklyn were exposed to contamination after the EPA misled them about air quality. They claim that Christine Todd Whitman, then the EPA administrator, and her staff made false statements and failed to carry out its cleanup duties. As a result, they charge, the EPA violated their constitutional rights to be protected from being harmed by government officials.

In her 83-page ruling, Judge Batts found enough evidence for the case to proceed. She not only denied the EPA's motion to dismiss it, but refused to grant Whitman immunity. On the contrary, she scolded the former EPA head, declaring her statements so "deliberate and misleading" they "shock the conscience."

"No argument can be made that Whitman could not have understood from existing law that her conduct was unlawful," Batts wrote.

--------------------------------------------------------------------------------

The EPA's spokesperson declined to comment on the ruling, referring questions to the Justice Department, which is handling the case. Its spokesperson, Charles Miller, refused to discuss pending litigation.

Whitman, now a New Jersey consultant, released a brief statement, expressing "outrage" and calling the plaintiffs' claims off-base. "Every action taken by the EPA during this horrific event," she said, "was designed to provide the most comprehensive protection and most accurate information to the residents of Manhattan."

Now that the suit can proceed, the truth of that statement will be put to the test. Bates's decision paves the way for the plaintiffs to sit government officials down and make them testify under oath. And this process of legal discovery, explains New York Civil Liberties Union lawyer Chris Dunn, who has sued federal departments, will prove enlightening for New Yorkers. All we know now is what EPA officials say in the press—in short, their spin. That's about to change.

"No one on the street can get an official to talk about government business," Dunn notes. "One of the biggest virtues of any lawsuit is that it can force the government to disclose information it won't otherwise."

--------------------------------------------------------------------------------

By now, some truths about the 9-11 fallout are known. The lawsuit outlines EPA press releases issued in the first days after the attacks, beginning on September 13. All are reassuring in nature. But it didn't take long for private tests to contradict the rhetoric. By December 2001, the New York Environmental Law and Justice Project was collecting dust samples in elevator shafts and ventilation units downtown, and finding asbestos and other toxins at double the threshold of safety. A freedom of information request from the project yielded 800 pages of previously hidden EPA samples that had revealed the same.  

Then in August 2003, the EPA inspector general issued a scathing 165-page report verifying such contradictions and disclosing some disconcerting news—that the White House had pressured the EPA to sanitize its warnings, for instance.

Says Joel Kupferman, of the law project, which serves as co-counsel in the suit, "No one can really argue there wasn't malfeasance."

No one can argue that people aren't getting sick, either. Take Bob Gulack, a plaintiff who works for the Securities and Exchange Commission. One month after the attacks, the SEC leased offices in a building on Broadway, two blocks from ground zero. Almost from the moment Gulack arrived, he began experiencing ailments he never had before. His lungs filled with fluid. He struggled to breathe. Doctors diagnosed him with reactive airway disorder and permanent lung damage, and attributed the ailments to 9-11.

He wasn't alone. As a union steward for 150 SEC employees, he's documented symptoms among dozens of co-workers, from burning eyes to heart palpitations.

"This is brand-new and it started with the World Trade Center collapse," he says, sitting in a workaday Asian restaurant on 72nd Street. Gulack, who now collects workers' compensation for his 9-11–related illnesses, avoids going downtown. He does not visit his office or old haunts for fear of triggering his asthma. The only time he ventures into Lower Manhattan is to attend hearings on the 9-11 fallout.

Still, he says, "I'm one of the lucky ones."

Some of the plaintiffs forked out thousands of dollars—from $5,500 on up to $18,000—to rid homes and businesses of the toxic dust. Those who couldn't afford the professionals mopped it up themselves.

For the plaintiffs, the sense of injustice is profound. "We have been forgotten," says Gail Benzman, whose continual strained coughing is excruciating to hear. Benzman developed sinusitis and asthma while working in a municipal building on Center Street, seven blocks from ground zero. "There is nothing for people who have gotten ill outside the pit."

Jeanne Markey, one of three Philadelphia lawyers representing the plaintiffs, says the lawsuit has made these frustrated activ ists—who've spent years asking for credible testing, medical monitoring, and a real cleanup—suddenly much more powerful. "It's one thing to say someone lied," she observes. "It's another thing to take that person to court because of the lie."

--------------------------------------------------------------------------------

Ask any lawyer who's sued the federal government and they'll tell you the same thing: Discovery changes everything. Mitchell Bernard, of the National Resources Defense Council, in Manhattan, has taken on the EPA and other government agencies in court. He says there's a difference between what an official says in public and under oath.

When a political appointee makes a pronouncement, Bernard explains, "he is not under any obligation to tell the truth." In a deposition, he is.

Officials tend to have a script, says the NYCLU's Dunn. Reporters may ask questions, but officials can refuse to answer. In a deposi tion, they can't. "Depositions are the surefire way to get government officials to answer questions they don't want to answer," he adds.

And then there are the documents. Confidential records the public cannot access even through freedom of information requests—internal e-mails, meeting minutes—become treasures unearthed in the discovery process. If plaintiffs can get their hands on such records, Bernard says, "What comes out of it could be illuminating in terms of what actually went on at the EPA."

Markey says she and her colleagues have yet to develop a strategy for discovery. But she ticks off a number of questions: What was the justification for the EPA's assuring statements? Did it rely on test results? What were they? "We're interested in discovering the basis of the statements," she says.

For now, the plaintiffs have to keep waiting. While Batts's decision allows the case to move forward, it's not the final say. Markey expects the Justice Department to appeal, stalling the proceedings.

Miller, the department's spokesperson, says the case is still under review, and points out that a second class action lawsuit against the EPA—one involving first responders on the debris pile—was dismissed earlier this month. "One judge went one way and the other judge went the other way," he says, suggesting a reason for appeal.

Appeal or no, the plaintiffs aren't about to give up. As they see it, the lawsuit represents the last chance to force the EPA to live up to its mission to protect New Yorkers. Somebody, they say, has to fight for accountability.

"Somebody has to blow the whistle on these guys," exclaims Diane Lapson, a plaintiff who heads the tenant association at Independence Plaza North, an affordable-housing complex three blocks from ground zero. Lapson, 54, a product of 1960s social activism, sits at her kitchen table, sipping coffee, looking out at the scarred Lower Manhattan skyline, and combing through snapshots taken from her building—aerial views of the 9-11 cloud, of the Hudson River pier where twisted metal was loaded on barges bound for Staten Island.

She's furious with the government officials who told her not to worry. "They're the naked emperors," she seethes. "Somebody has to stand up and say, 'You guys have no clothes.'"