Jenkins 031102 Asbestos Status WTC

Also includes copy of Congressman Nadler's 4/12/02 White Paper
which references Jenkins' reports/memos dated:

11/15/01, 12/19/01, 1/11/02, 3/6/02, and 3/11/02
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
MEMORANDUM
DATE: March 11, 2002 - c
SUBJECT: Status of air and dust asbestos testing after WTC collapse
1. Misrepresented “safe levels” and standards for asbestos

2. Failure to test at low levels related to safety
3. Region 2 relied on more sensitive TEM tests for settled
dusts in own building, required by EPA policy, did not
provide same sensitive testing for rest of NYC, and refused
Region 8 offer of free sensitive testing for rest of NYC
FROM: Cate Jenkins, Ph.D.*

jenkins.cate@epa.gov
Waste Identification Branch (Mail Code 5304 W)
Hazardous Waste Identification Division
TO: Affected Parties and Responsible Officials
This memorandum provides documentation of EPA Region 2's failure to address the
aftermath of the World Trade Center (WTC) collapse with adequate environmental
monitoring for asbestos. Region 2's rationales for its actions and decisions are provided in
this memorandum. These are contrasted with extensive abstracts of the Code of Federal
Regulations and other EPA guidance which contradict the contentions of Region 2. The
testing methods upon which Region 2 relied as a basis for abating its own building for
asbestos are compared to the testing methods Region 2 utilized to evaluate asbestos for the
rest of New York City, and the official EPA policy requiring the use of the more sensitive
testing methods.
The following table of contents also serves as a summary.
*
The conclusions and opinions in this memorandum are those of the author and do
not necessarily reflect those of the U.S. Environmental Protection Agency.
TABLE OF CONTENTS page
ASBESTOS IN AIR 6
Region 2 falsely claims 70 structures/square millimeter is “AHERA standard” 6
70 s/mm2 is not the AHERA standard, as explained in the AHERA regulations 8

themselves
– It is a LABORATORY BACKGROUND, the same as a DETECTION LIMIT 8

or lab SENSITIVITY
– A “LABORATORY BACKGROUND” is like going to a salad bar with a 8

container for the salad.
– The scale at the cashiers is good for weighing the large amount of salad, 8
because the weight of the container is relatively small.
– But if you went to the cashiers with an empty container and asked that it be 8
weighed for traces of cyanide, you would be out of luck, since the cyanide
would weigh much less than the container.
– The container for the salad is like a “LABORATORY BACKGROUND” 8
Region 2 mistakes 70 s/mm2 as a normal air “background” level 10
The actual AHERA standard for asbestos in air is ZERO 11
– The AHERA regulations explicitly state: “there are no safe exposures to 11

asbestos”
The Asbestos School Hazard Detection and Control Act states that the only standard 11
or safe exposure level to asbestos is ZERO
There are no other EPA ambient air standards other than ZERO asbestos 12
EPA acceptable risk levels for comparison to the 70 s/mm2 – AHERA level 12
Explanation of “PCM equivalent” asbestos fibers 13
70 s/mm2 – AHERA is 2375 to 4750 times higher than EPA’s 10 -6 risk level 13
70 s/mm2 – AHERA is higher than levels found at the Libby Superfund site 15
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If asbestos were present at Region 2's detection limits, levels would be higher than 17
EPA’s 10 -6 risk level
– A sensitive laboratory method is like looking at something with a microscope, 17

or even an electron microscope
– A cruder or less sensitive method is like looking for something with a hand-held 17
magnifying glass.
– A low detection limit is the same thing as high sensitivity. A much lower 17
amount can be detected, like a microscopic grain of sand. The microscopic
grain of sand is the “detection limit.”
– A high detection limit means low sensitivity. The detection limit would be 17
larger, like only being able to detect a piece of gravel. The piece of gravel
would be the “high detection limit.”
If asbestos were present at Region 2's detection limits, levels would be higher than the 18
Libby Superfund site
Typical background air levels are lower than Region 2's detection limits 19
70 s/mm2 – AHERA must be used in combination with a leaf blower (aggressive 20

testing) in an enclosed space to be relevant to predicting risks
– The law (through implementing regulations) requires this combination 20
– You can’t have one without the others 20
Reasons why EPA and laboratories misuse the term “AHERA test” 20
EPA developed the “aggressive leaf-blower/short term air test” to save time 21
– Previously, EPA required air sampling for at least 8 hours or more 21
EPA did not test air indoors, or air where children actually breathe 22
Chart of cancer risks associated with different asbestos test levels, standards, Region 24
2 detection limits, inside homes at Libby Superfund site, and typical normal
background air levels
-3-
ASBESTOS IN SETTLED SURFACE DUSTS AND SOILS 25
EPA Region 2 claims that 1% is the safe level for asbestos in dusts lying on surfaces 25
or in soils
Under the EPA NESHAP, 1% asbestos is not considered a safe level 26
– 1% only applies when defining the asbestos-containing building material itself 26
– Region 2 agrees that 1% is not related to health risks 26
– Region 2 states that 1% is only the detection limit of a crude method, PLM, 26
that lacks sensitivity to test for lower levels
– Region 2 fails to state that EPA policy requires a more sensitive method, TEM, 26
for settled dusts and other solids
In Superfund guidance, EPA found 1% asbestos or lower is hazardous 27
Soils containing only 0.001% asbestos can lead to hazardous air levels 27
Decontamination of demolition sites must be cleaned up to background, not just 1%, 28

under the EPA asbestos NESHAP
Under both the EPA NESHAP and AHERA regulations, ZERO emissions of 29
asbestos-contaminated dusts is required, not emissions containing only 1% asbestos
or less
EPA guidance requires the most sensitive method, transmission electron microscopy 31
(TEM), for certain bulk materials under both the asbestos NESHAP and AHERA
– Region 2 only used the less sensitive method, PLM, in violation of EPA policy 31
EPA NESHAP regulations require testing by the sensitive TEM method for asbestos- 32
derived wastes to determine if they asbestos free
– The asbestos-free level is “no asbestos detected by TEM” – not 1% 32
OSHA regulations recommend TEM analyses of settled, bulk dusts 34
Settled dusts in Lower Manhattan had higher asbestos than soils in Libby, MT 34
– Region 2 claims that asbestos levels are “low” in Manhattan dust 34
-4-
REGION 2 ASBESTOS ABATEMENT AT THEIR OWN 290 BROADWAY 36
BUILDING
EPA Region 2 had positive results from sensitive TEM testing for its own building 36
and on this basis decided to abate for asbestos
– Less sensitive PLM tests, the only one used for bulk dusts for the rest of 36
Manhattan, were negative for the Region 2 building
– But for the results from the more sensitive tests, Region 2 would not have 36
abated asbestos from its building
– TEM tests for bulk dust are required by EPA policy, but Region 2 did not use 36
these tests for the rest of Manhattan
– EPA Region 2 was offered free access to similar more sensitive testing (SEM) 36
by Region 8 for the rest of Manhattan but refused
– The same, more sensitive test method (SEM) was used after the first bombing 36
of the WTC in 1993, but Region 2 refused it after the WTC
Difference in testing methods and sensitivities for: 38
– EPA Region 2 building at 290 Broadway 38
– All of Manhattan and surrounding NYC after WTC collapse 38
– After the first bombing of the World Trade Center 38
Region 2 defends the sensitive TEM settled dust tests on its own building “because 41
the lab suggested it to GSA”
– The lab suggested it only because it was official EPA guidance and a NY State 41
regulatory requirement to perform TEM tests of settled dusts and solid
materials under certain conditions
Region 2 withheld testing results for its own building in response to FOIA request 42
43
CONCLUSIONS
-5-
ASBESTOS IN AIR
Region 2 falsely claims 70 structures/square millimeter is “AHERA standard”
The EPA website relating to the WTC disaster, pages maintained by EPA Region 2,
repeatedly claim that there is an air standard under the Asbestos Hazard Emergency
Response Act (AHERA), and that this standard for asbestos is “70 structures per
square millimeter”:
The samples are evaluated against a variety of benchmarks, standards and

guidelines established to protect public health under various conditions. ... EPA
analyzed 34 samples taken in and around ground zero from October 8 to October
9. All samples showed results less than 70 structures per millimeter squared,
which is the Asbestos Hazard Emergency Response Act (AHERA) standard for
allowing children to re-enter school buildings after asbestos removal activities.
[U.S. Environmental Protection Agency (EPA) Daily Summary, Wednesday, October 10, 2001.
Posted at http://www.epa.gov/epahome/wtc/ or www.NYenviroLAW.org ]
The following is a statement that appears in most of Region 2's daily air monitoring
summaries:
In evaluating data from the World Trade Center and the surrounding areas, EPA
is using a protective standard under AHERA, the Asbestos Hazard Emergency
Resp onse A ct, to evaluate the risk from as bestos in the outdoor an d indoor air.
This is a very stringent standard that is used to determine whether children may
re-enter a school building after asbestos has been removed or abated. It is based
on assumptions of long-term exposure. EPA has chosen to use this standard,
because it is the most stringent and protective, even though it is unlikely that the
public will be exposed to asbestos from the World Trade Center site for extended
periods o f time.
To determine asbestos levels, air filters are collected from monitoring equipment
through which air in the school building has passed and viewed through a
microscope. Th e num ber of structures – m ate rial that has asbestos fibers on or in
it – is then counted. The measurements must be 70 or fewer structures per
squ are m illime ter be fore c hildren are a llowed inside.
[EPA Response to September 11, Benchmarks, Standards and Guidelines Established to Protect
Public Health, posted at http://www.epa.gov/epahome/wtc/activities.htm ]
Regional Counsel for EPA’s Region 2 made the following assertions:
EPA has two sets of regulations that deal with asbestos ... neither set of
regulations is directly applicable to the conditions in the wake of the WTC disaster
... The first set of asbestos-related regulations are part of the National Emission
Standards for Hazardous Air Pollutants (NESHAP s) ... pursuant to ... the Clean
Air Act ... The second set of regulations are those promulgated by EPA pursuant
to the Asbestos Hazard Emergency Response Act (AHERA) ... The AHERA
regu lations also include a “c learance ” stan dard for inside air in scho ol building s to
-6-
be used after asbestos aba tement w ork has be en com pleted, in order to ensure
that the spa ce is safe for re-e ntry b y ch ildren, teach ers and other em ployees . ...
EPA began taking ambient air samples ... Once again, the key question ... to what
reference standard the test results would be compared in order to determine
whethe r the air was “safe .” ... E PA has not promulgate d an outd oor am bient air
quality standard for asbestos; nor has any other regulatory agency done so, for
tha t matte r. The only stan dard for asbesto s in air th at E PA has promulgate d is
fou nd in the AHER A regulation s refe renced above. T hese rule s include wh at is
commonly called a clearance test ... The specified AHERA clearance test
proc edu re includes, inte r alia , a step in which air monitored in the affected space
is compa red with the specified “backgrou nd” level of 70 structures per squa re
millimeter (70 s/mm 2).
[Mugdan, Walter E., Esq. (January 25, 2002) Environmental law issues raised by terrorist events in
2001. Speech before the NY Bar Association. Posted at www.NYenviroLAW.org ]
In a document drafted by Region 2 legal counsel, the following statement is made:
It was developed to determine whether school buildings where asbestos was

used are safe. Under this test, an air monitor pumps room air through a special
filter for a specified amount of time. Then the number of asbestos “structures,” or
fibers, on a square millimeter of the filter are counted. If there are fewer than 70
such structures, the air is judged to be acceptable. EPA has used this same
school-based standard to evaluate the safety of outside air in downtown
Manhattan.
[US EPA Region 2 (November 27, 2001) Draft. Attorney work product, attorney-client
communication. Made available by EPA Region 2 in response to a January 3, 2002 Freedom of
Information Act request by the New York Environmental Law and Justice Project. Posted at
http://www.nyenvirolaw.org/PDF/EPA-FOIL-scannedOn-2-27-02.pdf ]
The New York City Departments of Health and Environmental Protection also claim
that the 70 s/mm2 level is a safe level:
PCM sam ple results are compared to the clearance/re-occupancy standard for
indoor air following an asbe stos abatem ent project. This standard is 0.01 fibers
per cubic centimeter. Samples found to be above this standard are re-examined
using TEM (Transmission Electron Microscopy). The TEM analysis identifies the
type of particles collected. TEM results are compared to the clearance/re-
occ upa ncy standard for indo or air in s cho ols afte r an a sbe stos aba tem ent project.
This standard is 70 s tructures of asbestos per square m illimeter. The s tandard
was established pursuant to the federal “Asbestos Hazard and Emergency
Response Act”, usually known as AHERA.
[Testimony of Thomas R. Fireden, M.D., M.P.H., Commissioner, New York City Department of
Health and Joel A. Miele Sr., P.E., Commissioner, New York City Department of Environmental
Protection before the U.S. Senate Committee on Environment and Public Works, Subcommittee on
Clean Air, Wetlands, and Climate Change, February 11, 2002. Posted at www.NYenviroLAW.org ]
-7-
70 s/mm2 is not the AHERA standard, as explained in the AHERA regulations
themselves
– It is a LABORATORY BACKGROUND, the same as a DETECTION LIMIT

or lab SENSITIVITY
– A “LABORATORY BACKGROUND” is like going to a salad bar with a

container for the salad.
– The scale at the cashiers is good for weighing the large amount of
salad, because the weight of the container is relatively small.
– But if you went to the cashiers with an empty container and asked
that it be weighed for traces of cyanide, you would be out of luck,
since the cyanide would weigh much less than the container.
– The container for the salad is like a “LABORATORY BACKGROUND”
In their naivete of analytical testing methods, Region 2 is under the mistaken belief
that 70 s/mm2 is the natural, typical background level of asbestos in normal air.
Region 2 states this explicitly, seen in the excerpts in the preceding section.
EPA Region 2 has unfortunately completely misinterpreted the regulations at Title

40 of the Code of Federal Regulations, which describe in detail the meaning of the 70
s/mm2 level for the AHERA TEM clearance test.
It is only the detection limit of a particular air test for asbestos, or the sensitivity of
the method, a LABORATORY BACKGROUND. The word “background” refers to
the fact that one particular filter material through which air is drawn is already
contaminated with asbestos.
Analysts have the choice of using either polycarbonate filters or methyl cellulose
filters. Polycarbonate filters have asbestos fibers in the filter material itself. The
AHERA clearance test was designed to allow for the presence of the asbestos in the
polycarbonate filters, so it set the level at 70 s/mm2 to allow for this contamination.
Typically, the methyl cellulose filters are used today because it is understood that
using polycarbonate filters would result in finding some asbestos as part of the lab
background. Using methyl cellulose filters gives a “free pass” of 70 s/mm2.
Extensive excerpts are given of the AHERA regulations, which make it very clear
that 70 s/mm2 only refers to the detection limit or sensitivity or laboratory
background of the AHERA TEM clearance test. Nowhere in the AHERA
regulations is the word “standard” or “safe” used in conjunction with 70 s/m2. In
fact, in the next section, it can be seen that the same AHERA regulations state that
there is NO safe exposure to asbestos.
-8-
[AH ER A] 4 0 C FR Part 763 Subpart E - As besto s-Contain ing Mate rials in Sc hools
§763.90 Response actions. (a) The local education agency shall select and
implement in a timely manner the appropriate response actions in this section
con sistent with the asse ssm ent cond ucte d in §7 63.8 8. ...
(i) Completion of response actions.

...
(3) Exce pt as prov ided in para grap hs (i)(4 ), and (i)(5), of this section, a n ac tion to
remove, encapsulate, or enclose ACBM shall be considered complete when the
ave rage con cen tration o f asbesto s of five air samples collected within the affected
functional space and ana lyzed by the TE M m ethod in append ix A of this subpart
E, is not statistically significantly different, as determined by the Z-test calculation
found in appendix A of this subpart E, from the average asbestos concentration of
five air samples collected at the same time outside the affected functional space
and analyzed in the same manner, and the average asbestos concentration of the
three field blanks described in appendix A of this subpart E is below the filter
background level, as defined in appendix A of this subpart E, of 70 structures per
square millimeter (70 s/mm 2).
(4) An action may also be considered complete if the volume of air drawn for each
of the five samples collected within the affected functional space is equal to or
greater than 1,199 L of air for a 25 mm filter or equal to or greater than 2,799 L of
air for a 37 mm filter, and the average concentration of asbestos as analyzed by
the TEM method in appendix A of this subpart E, for the five air samples does not
exceed the filter background level, as defined in app end ix A, of 70 structures per
square millimeter (70 s/mm 2). ...
...
40 CFR §763, Appendix A.
II. Manda tory T rans mission Electron M icros cop y M etho d A.
Definitions of Terms
...
13. Filte r ba ck ground level -- The con centration of structures per square
millimeter of filter that is considered indistinguishable from the concentration
measured on a blank (filters through wh ich no air h as been dra wn). Fo r this
me thod the filter ba ckg roun d leve l is defined as 70 structu res/mm 2.
...
A response action is determined to be completed by TEM when the abatement
area has been cleaned and the airborne asbestos concentration inside the
abatement area is no higher than concentrations at locations outside the
abatement area. ... After the abatement area has passed a thorough visual
inspection, and before the outer containment barrier is removed, a minimum of
five air samples inside the abatement area and a minimum of five air samples
outsid e the abatem ent area must be collected . Hence, the res ponse actio n is
determined to be completed when the average airborne asbestos concentration
measured inside the abatement area is not statistically different from the average
airborne a sbe stos con cen tration m eas ured outside the aba tem ent area.
...
When volumes greater than or equal to 1,199 L for a 25 mm filter and 2,799 L for
a 37 mm filter have been collected and the average number of asbestos
structures on samples inside the abatement area is no greater than 70 s/mm 2 of
filter, the response action may be considered complete without comparing the
inside samples to the outside samples. EPA is permitting this initial screening test
to s ave analysis costs in situatio ns wh ere the airborne asbesto s concentratio n is
-9-
sufficiently low so that it cannot be distinguished from the filter
con tam ination/bac kgroun d leve l (fibers d epo sited o n the filter that are unre lated to
the air being sampled).
...
The initial screening test is expressed in structures per square millimeter of filter
becau se filter background levels come from sources other than the air being
sampled and cannot be m eaningfu lly express ed as a concentratio n per cubic
centimeter of air. The value of 70 s/mm 2 is based on the experience of the panel
of microscopists who consider one structure in 10 grid openings (ea ch grid
opening with an area of 0.0057 mm 2) to be com para ble w ith
contam ination/background levels of blank filters. The dec ision is b ase d, in pa rt,
on Poisson statistics which indicate that four structures must be counted on a
filter before the fiber count is statistically distinguishable from the count for one
structure.
[emphasis added]
[The Code of Federal Regulations are available from most larger libraries, all law libraries, and also
online at: http://www.access.gpo.gov/nara/cfr/index.html, or for EPA-only (faster) at
http://www.epa.gov/epahome/cfr40.htm ]
It is true that EPA Region 2's air tests in Manhattan had greater sensitivity than 70
s/mm2. That is because they used methyl cellulose filters, which do not have the
asbestos contamination problem.
Region 2 mistakes 70 s/mm2 as a normal air “background” level
Regional Counsel for EPA’s Region 2 explained his belief of the meaning of 70
s/mm2. He believes that it is a normal air background, and when the AHERA
clearance test is run, the results of the test are COMPARED WITH the 70 s/mm2
“background” level:
These rules include what is commonly called a clearance test ... The specified
AH ER A clearan ce test pro ced ure includes, inte r alia , a step in w hich air
monitored in the affected space is compared with the specified “background” level
of 70 struc tures per s qua re m illime ter (70 s/m m 2).
This is wrong. There is no comparison going on at all with the results of the test and
any purported background level of 70 s/mm2. Instead, the AHERA TEM clearance
test requires a comparison with the actual background air, which must be done by
sampling the air outside and actually testing it, according to the procedures of the
AHERA test.
As seen above, the word “background” in the regulations refers to a laboratory

background from unavoidable asbestos contamination of the filter through which air
is drawn.
- 10 -
Later, the actual typical background levels of asbestos in air will be given, and the
reasons why EPA has regulations that would allow the air in schools to “pass” with
such abnormally high and dangerous asbestos results of 70 s/mm 2. (You have to use
“aggressive sampling” with a one-horsepower leaf blower inside an enclosed space,
which makes asbestos concentrations in air abnormally high.)
The actual AHERA standard for asbestos in air is ZERO
– The AHERA regulations explicitly state:

“there are no safe exposures to asbestos”
The AHERA regulations actually do give a standard for asbestos in air, namely
ZERO. The AHERA regulations are explicit, saying there are no safe exposures to
asbestos:
40 CFR § 763. Appendix B to Subpart E to Part 763 -- Asbestos Model

Accreditation Plan
...
1. WORKERS [same language included for supervisors and all others involved in
abatement] ...
...
(b) Potential health effects related to asbestos exposure. The nature of asbestos-
related diseases; routes of exposure; dose-response relationships and the lack of
a safe exposure level; the synergistic effect between cigarette smoking and
asb esto s ex pos ure; the laten cy p eriods for a sbe stos -related dise ase s; a
discussion of the relationship of asbestos exp osure to asb estosis, lung cancer,
mesothelioma, and cancers of other organs.
[emphasis added]
online at: http://www.access.gpo.gov/nara/cfr/index.html, or for EPA regulations only (faster) at
The Asbestos School Hazard Detection and Control Act states that the only
standard or safe exposure level to asbestos is ZERO
Asbes tos S cho ol Ha zard Detec tion an d Contro l Act

...
§ 3601. Congressional statement of findings and purposes (a) The Congress
finds that-- (1) exposure to asbestos fibers has been identified over a long period
of tim e and by rep uta ble medical and scientific evidence as significa ntly
increasing the incidence of cancer and other severe or fatal diseases, such as
asbesto sis; (2) m edical evidence has suggested that ch ildre n m ay be particularly
vulnerable to environmentally induced cancers; (3) medical science has not
estab lished any m inim um level of ex posure to asbestos fibers wh ich is
con sidered to be safe to individu als ex pos ed to the fibers;
[June 14, 1980, P.L. 96-270, § 1, 94 Stat. 487, 20 USCS § 3601 (2001). Available at
http://www.findlaw.com/ or http://uscode.house.gov/ ]
- 11 -
There are no other EPA ambient air standards other than ZERO asbestos
Furthermore, there are no other EPA standards for asbestos in air, such as an
ambient air quality standard, other than the “zero” level or “no exposure” level. EPA
guidance states the following:
Q: What is the acceptable exposure/ambient air standard for asbestos?

A: EPA does not specify an acceptable exposure/ambient air standard.
[US EPA (1990) Common Questions on the Asbestos NESHAP. EPA Publication No. 340/1-90-021.
Available online at: http://www.epa.gov/ncepihom/nepishom/ ]
Even EPA Region 2 agrees that there are no ambient air standards for asbestos.
Walter Mugdan, Regional Counsel, stated:
EPA has not promulgated an outdoor ambient air quality standard for asbestos;
nor has an y other regulatory agen cy done so, for that matter.
EPA acceptable risk levels for comparison to the 70 s/mm2 – AHERA level
Although there are no standards for asbestos in air, there are levels or concentrations
that are cleanup goals in the event of asbestos contamination. EPA does not consider
any exposure to a carcinogen to be acceptable.
In the event of contamination, it is the policy and goal of EPA to clean up the
environment to protect citizens from any increased risk of cancer at the 1 in a million
cancer risk level for a lifetime exposure. This is called the “10-6 risk level,” or the
“ten to the minus six risk level.”
Exposing citizens after a cleanup to anything less than the 10 -6 risk level is never
done by EPA without due public process with opportunity for public input and
review. EPA would never even propose deciding that citizens be exposed to higher
risk levels than one-in-a-million without extensive environmental monitoring,
considering all feasible options, considering whether or not there are relatively few
citizens that would be exposed, etc. Regardless, in all cases, action by EPA is
triggered by any risk greater than 1 in 10,000.
The EPA risks for asbestos at different air concentrations are given in the table
below:
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AIR CONCENTRATION OF ASBESTOS CANCER RISK LEVEL, LIFETIME
“PCM equivalent” fraction, fibers over 5 micrometers long
num ber of cance rs risk level
concentration fibers per expressed as exponent
milliliter
0.000004 f/mL 4E-6 f/mL 1 in 1,000,000 10 -6
(= E-6)
0.00004 f/mL 4E-5 f/mL 1 in 100,000 10 -5
(= E-5)
0.0004 f/mL 4E-4 f/mL 1 in 10,000 10 -4
(= E-4)
Source: U.S. EPA (August, 2001) Integrated Risk Management Information System (IRIS) Summary for Asbestos,
posted at http://www.epa.gov/iris/subst/0371.htm
Explanation of “PCM equivalent” asbestos fibers
The “PCM fraction” or “PCM equivalents” are those asbestos fibers at least 5
micrometers (: m) long, with a width greater than 0.25 : m, and an aspect ratio
greater than or equal to 3 to 1. These are the fibers that are small enough to be
inhaled deeply into the lungs (“respirable size”), but also large enough to be retained
by the lungs. It is believed that fibers shorter than 5 : m can be engulfed by
macrophages and carried out of the lungs.
EPA policy currently uses this “PCM-equivalent” theory, which means that asbestos
fibers smaller than 5 : m in length are eliminated from the risk assessment, since they
are believed not to contribute to cancer. Not all scientist agree with this theory, that
the smallest of the small asbestos fibers are harmless.
Because the established EPA risk level is expressed in PCM equivalents, and because
other asbestos in air data is typically expressed as PCM equivalents, it is useful to
convert units from “total asbestos fibers” to “PCM equivalent fibers.” This makes
comparisons of data easier.
70 s/mm2 – AHERA is 2375 to 4750 times higher than EPA’s 10 -6

risk level
The table below compares the AHERA 70 structures per square millimeter (70
s/mm2) level with the EPA one-in-a-million risk level (10-6 risk level; ten to the
minus six risk level).
Since the EPA one-in-a-million cancer risk level for asbestos is 0.000004 fibers per
milliliter (PCM), the AHERA level is 2375 to 4750 times higher than the EPA
cancer risk level. In other words, the 70 s/mm2 level would lead to 2.4 to 4.8 excess
cancers per one thousand. This is unacceptable.
- 13 -
The 70 s/mm2 level is converted to “PCM equivalents” to make this comparison
possible. See section above for an explanation of PCM equivalents. The theoretical
level of PCM equivalents for 70 s/mm2 is given in the AHERA regulations at 40 CFR
§ 763 App. A. The Region 2 air monitoring data also gives real-world PCM-
equivalents to 70 s/mm2. For Manhattan asbestos air tests, the PCM equivalents
range from 0.0095 to 0.019 f/mL (PCM).
70 s tru ctu re s p er s qu are m illimeter (s/m m 2) COMPARISON WITH CANCER RISKS

AHERA TE M clearance test levels, different units. All numbers are roughly equal
THEORETICAL EQUIVALENTS TO 70 s/mm 2 from 40 C FR § 763 Ap p. A
= 0.01 fibers per milliliter (f/mL) (PCM) = 0.02 structures per milliliter (s/mL)
= 0.01 fibers per cubic centimeter (f/cc) (PCM) = 0.02 structures per cubic centimeter (s/cc)
= 2500 times the EPA one per million cancer risk [all fibers plus bundles]
= 2.5 excess cancers per one thousand
fibers over 5 : m, “PCM-equivalent”
EPA REGION 2 EQUIVALENTS TO 70 s/mm 2, if 50% of fibers are “P CM equ ivalen t”
= 4750 times the EPA one per million cancer risk [all fibers plus bundles, not just PCM-equivalent fibers
= 4.8 excess cancers per one thousand which are over 5 :m in length]]
EPA REGION 2 EQUIVALENTS TO 70 s/mm 2, if 25% of fibers are “P CM equ ivalen t”
= 2375 times the EPA one per million cancer risk [all fibers plus bundles, not just PCM-equivalent fibers
= 2.4 excess cancers per one thousand which are over 5 :m in length]]
The following table gives some of Region 2's air measurements for Manhattan that
were significantly higher than the detection limit, along with the fraction of fibers
that are “PCM equivalent.” A conservative estimate would be that 25% to 50% of
the fibers are PCM equivalent. Since the Region 2 data lacked the necessary
sensitivity, there is no basis for concluding that the PCM fraction was any lower.
AVAILABLE AIR ASBESTOS LEVELS SIGNIFICANTLY ABOVE DETECTION LIMITS

EPA REGION 2 DATA, MANHATTAN
concentration in concentration in fibers less fibers date

fibers or structures per structures per square than 5 :m greater
milliliter (f-s/mL) millimeter (s/mm2) than 5 :m
(PCM)
0.0143 24 3 0 10/1
0.0095 17.78 2 0 9/28
0.0171 32 4 0 9/23
- 14 -
0.0128 24 3 0 9/23
0.0095 17.78 1 1 9/25 a
0.019 35.56 2 2
0.033 62.22 8 1
0.0074 17.78 1 1
0.0095 17.78 1 1 9/25
0.0190 35.56 4 0
0.0476 89.89 7 3
0.0143 26.67 2 1 9/29 a
0.0095 17.78 2 0
0.038 71.11 6 2 10/2
0.045 88.88 8 4
0.0143 26.67 2 1
Source: EPA air monitoring laboratory sheets. Made available in response to a Freedom of
Information Act request from the New York Environmental Law and Justice Project. Posted at
www.NYenviroLAW.org Note that EPA only posted incomplete data on its web site, giving only
asbestos concentrations expressed as structures per square millimeter, which is not helpful for
scientists attempting to quantify risks.
70 s/mm2 – AHERA is higher than levels found at the Libby Superfund site
The 70 s/mm2 AHERA TEM clearance level is higher than the air levels found inside
homes at the Libby, Montana Superfund site, the air levels that caused Libby to
become a Superfund site.
The following table gives the air levels inside residences that resulted in the
designation of Libby as a Superfund site. Because most of the inside air samples had
non-detectable asbestos, it was necessary to estimate the detection limit of the tests
performed at Libby. This estimate was from 0.0001 to 0.0003 f/mL (PCM).
The average level of asbestos inside residences in Libby is 0.0024 f/mL (PCM).
The AHERA 70 s/mm2 level is equivalent to 0.0095 to 0.019 f/mL (PCM). (See
preceding section.)
The AHERA 70 s/mm2 level is 4 to 8 times higher than the air inside residences at
Libby.
- 15 -
CO MPA R ISON OF AH ER A 70 s/m m 2 LEVEL WITH LIBBY SUPERFUND SITE
70 s/mm 2 equivalent 0.0095 f/mL (PCM) 4 times higher than Libby

low rang e, Region 2 data
70 s/mm 2 equivalent 0.019 f/mL (PCM) 8 times higher than Libby

high rang e, Region 2 data
AIR LEVELS INSIDE RESIDENCES IN LIBBY, MONTANA
Average concentration of 0.0024 f/mL (PCM) 0.0023 - 0.0024

asbestos in air inside Libby f/mL (PCM), range
reside nce s**
Air levels during routine 0.009 f/mL (PCM) 0.003 - 0.036 4/10 samples
activities, samples w here f/mL (PCM), range with dete cta ble
asbestos detected. asbestos
Air levels during active 0.008 f/mL (PCM) 0.007 - 0.010 3/17 samples
cleaning, samp les where f/mL (PCM), range with dete cta ble
asbestos detected. asbestos
No n-de tect sam ples, both 0.0002 f/mL (PCM) 0.0001 - 0.0003 20/27 samples
from tests done while routine f/mL (PCM), range with NON-
and active cleaning taking detec tab le
place. Estimated detection asbestos. 27
limit total samples
(10 + 17)
** Calculated as follows: (0.0002)(20/27) + (0.008)(3/27) + (0.009)(4/27) = 0.00237
Source: Table, page 10 of risk assessment, Weis, C. P., Senior Toxicologist/Science Support Coordinator, U.S. EPA
(December 20, 2001) Excerpts from: Amphibole mineral fibers in source materials in residential and commercial areas
of Libby pose an imminent and substantial endangerment to public health. Posted at:
http://www.epa.gov/region8/superfund/libby/riskassess.html
- 16 -
If asbestos were present at Region 2's detection limits, levels would be higher
than EPA’s 10 -6 risk level
– A sensitive laboratory method is like looking at something with a

microscope, or even an electron microscope
– A cruder or less sensitive method is like looking for something with

a hand-held magnifying glass.
– A low detection limit is the same thing as high sensitivity.

A much lower amount can be detected, like a microscopic grain of
sand. The microscopic grain of sand is the “detection limit.”
– A high detection limit means low sensitivity. The detection limit

would be larger, like only being able to detect a piece of gravel.
The piece of gravel would be the “high detection limit.”
The detection limits of the Region 2 air tests are too high, meaning that the tests did
not have enough sensitivity to find asbestos at the levels that could harm people.
It is true that Region 2 was able to detect asbestos at levels lower than 70 s/mm2, the
AHERA test level. Many of Region 2's tests had no detectable asbestos at all.
However, they were still not sensitive enough, and there are many ways of making
the tests more sensitive.
The sensitivities, or detection limits, for the air tests Region 2 performed after the
WTC collapse were only 0.0043 to 0.0096 structures per milliliter (s/mL), for all
fibers and bundles. This corresponds to 0.0011 to 0.0043 f/mL (PCM). This
assumes that either 25% or 50% of the fibers are PCM-equivalent, a conservative
estimate, explained in an earlier section.
If asbestos were present at the detection limits or slightly below it, it would
correspond to excessive cancer risks from nearly 3 per 10,000 up to 1 per 1000. See
the following table.
CANCER RISKS AT REGION 2 DETECTION LIMITS
Cancer risk level Air concentration for “PCM -equivalent” fibers
1 per million 0.000004 f/mL (PCM) EPA’s Integrated Risk Information

System
2.75 cancers per 0.0011 f/mL (PCM) estimated 25% PCM -equivalents for
10,000 lowe st detection limit for Region 2 tests
1 cancer per 1000 0.0043 f/mL (PCM) estimated 50% PCM -equivalents for
highest detec tion limit for R egion 2 tests
- 17 -
The following table gives some typical detection limits for the Region 2 tests, along
with the estimated amount that would be “PCM-equivalent.”
DETECTION LIMITS –- LOWEST LEVELS OF ASBESTOS IN AIR THAT REGION 2 COULD DETECT
Estimated “PCM equivalent” fibers, those over 5 :m structures per milliliter structures per square date
in length – f/mL (PCM) (s/mL) millimeter (s/mm2)
50% PCM fraction 25% PCM fraction all fibers and bundles all fibers and bundles
assumption assumption (“structures”) (“structures”)
0.0024 0.0012 0.0048 8.89 9/24
0.0022 0.0011 0.0043 8.0 9/25
0.0031 0.0016 0.0062 7.75 9/29
0.0027 0.0013 0.0053 8.0 9/29
0.0043 0.0024 0.0096 8.0 9/29
0.0025 0.0012 0.0049 8.89 9/29
EPA air monitoring laboratory sheets. Made available in response to a Freedom of Information Act request from the
New York Environmental Law and Justice Project. Posted at www.NYenviroLAW.org Note that EPA only posted
incomplete data on its own web site, giving only asbestos concentrations expressed as structures per square
millimeter.
If asbestos were present at Region 2's detection limits, levels would be higher
than the Libby Superfund site
The detection limits of the Region 2 air tests are also higher than or comparable to
the air found inside homes at the Libby Superfund site. An earlier section showed
that if asbestos were present at the AHERA levels, it would be higher than in homes
in Libby.
On other words, even if Region 2 found no asbestos, even testing inside residences
with normal activities going on, it would not be able to say that the air was safer than
at Libby. See the table below.
COMPARISON OF REGION 2 DETECTION LIMITS WITH LIBBY SUPERFUND SITE
High er R eg. 2 detection lim its 0.0043 f/mL (PCM) almost 2 times higher than Libby
Low er R eg. 2 detection lim its 0.0011 f/mL (PCM) about one-half that in Libby
AIR LEVELS INSIDE RESIDENCES IN LIBBY, MONTANA
Average concentration, 0.0024 f/mL (PCM) 0.0023 - 0.0024

Libby residences f/mL (PCM), range
See table in earlier section for a calculation of the average residential air concentration of asbestos found in Libby.
In home asbestos levels are from Table, page 10 of risk assessment, Weis, C. P., Senior Toxicologist/Science
Support Coordinator, U.S. EPA (December 20, 2001) Excerpts from: Amphibole mineral fibers in source materials in
residential and commercial areas of Libby pose an imminent and substantial endangerment to public health. Posted
at: http://www.epa.gov/region8/superfund/libby/riskassess.html
- 18 -
Typical background air levels are lower than Region 2's detection limits
The typical concentrations of asbestos in air are much, much lower than Region 2's
testing sensitivity (detection limits). The following table gives typical indoor and
outdoor air concentrations from the Agency for Toxic Substances and Disease
Control (ATSDR) of the Centers for Disease Control.
Region 2's detection limits are 550 to 2150 times higher than typical background air
levels for asbestos. Thus, we have no idea at this time whether the air in New York
City has returned to normal.
ATSDR TYPICAL AIR LEVELS COMPARED TO REGION 2 DETECTION LIMITS
Re gio n 2 d etec tion limits are 5 50 to 215 0 tim es h igh er than typical air levels
0.0011 to 0.0043 f/mL (PCM) rang e of detec tion limits fo r Re gion 2 tests
0.000002 f/mL (PCM) typical outside air, urban and rural (background)
0.000003 f/mL (PCM) typical inside air (background)
Source: Table 5-2, ATSDR (2000) Toxicological Profile for Asbestos, Centers for Disease Control, ATSDR. Available
by calling 1-888-42-ATSDR. Currently, only the final draft version is posted at
www.atsdr.cdc.gov/toxprofiles/tp61.html ]
Note that the concentrations are “PCM equivalents.” This means that only the
fraction of asbestos that is over 5 micrometers long is included. If the total level of
asbestos were given, it would be higher.
Urban air usually contains higher levels of asbestos just because of general pollution
from brake linings and other sources. However, the ATSDR did not develop any
specific overall estimate for urban air in particular. A few individual studies cited by
the ATSDR generally showed that urban air contains 10 times more asbestos than
rural air. The table above gives an average value for both urban and rural air.
These typical air concentrations represent the consensus of the ATSDR peer review
process from evaluating many studies on background air concentrations by different
researchers. Different scientist may have favorite studies that they like to cite for
background levels of asbestos in air. However, the ATSDR conclusions about typical
background levels must be referred to unless there is statistically significant data from
a particular site before and after a contamination event. We do not have statistically
significant air monitoring data at these low concentrations for many different
locations in New York City prior to the collapse of the WTC.
- 19 -
70 s/mm2 – AHERA must be used in combination with a leaf blower
(aggressive testing) in an enclosed space to be relevant to predicting risks
– The law (through implementing regulations) requires this

combination
– You can’t have one without the others
The 70 s/square millimeter level must always be coupled with the use of a one-
horsepower or greater leaf blower in an enclosed space, following a certified
professional abatement, and other requirements. YOU CAN’T HAVE ONE
WITHOUT THE OTHER REQUIREMENTS.
The regulations are explicit about aggressive testing:
40 CF R Part 763 Subpart E - As besto s-Contain ing Mate rials in Sc hools

...
(1) At the conclusion of any action to remove, encapsulate, or enclose ACBM
[asbestos containing building materials] ... A person designated by the local
education agency shall collect air samples using aggressive sampling as
des cribed in ap pen dix A ...
...
Appendix A ... The following appendix contains three units. The first unit is the
mandatory transmission electron microscopy (TEM) method which all laboratories
mu st follow ...
d. After the area has passed a thorough visual inspection, use aggressive
sampling con ditions to dislod ge a ny re ma ining dust.
...
iii. Prior to air m onitoring, floors, ceiling and walls shall be swept with the exhaust
of a minimum one (1) horsep ower leaf blower.
...
iv. S tatio nary fans are placed in locatio ns wh ich will n ot interfere w ith air
monitoring equipment. Fan air is directed toward the ceiling. One fan shall be
used for each 10,000 ft 3 of worksite.
[emphasis added]
online at: http://www.access.gpo.gov/nara/cfr/index.html, or for EPA-regulations only (faster) at
Reasons why EPA and laboratories misuse the term “AHERA test”
EPA, laboratories, and contractors usually misuse the term “AHERA test.” There
are several reasons for this.
First, the laboratory who receives the sample does not have any idea whether or not
- 20 -
the air sample was taken using the full AHERA protocols. The lab just looks at the
form that the client filled out, and must assume that the air sampling followed the
AHERA sampling protocols involving aggressive leaf blower testing followed by a
fan, with the right amount of air being pumped through the filter, an enclosed space,
after abatement, etc. The lab does its part only, following the AHERA counting
protocols for classifying the different lengths and sizes of asbestos fibers and other
requirements. The lab then generates a sheet saying “AHERA method” or some
such equivalent statement.
When EPA or others look at the lab sheet, their belief that the whole testing
procedure was actually according to the full AHERA protocols is reinforced.
There is another reason that EPA and others are confused about what constitutes a
genuine AHERA asbestos test. This is because the 1985 version of the Purple Book
is still being distributed by EPA. The Purple Book only states that the aggressive
testing method is “recommended.” (US EPA (1985) Guidance for Controlling
Asbestos-Containing Materials in Buildings, Office of Pesticides and Toxic
Substances, Publication No. EPA 560/5-85-024.)
However, the aggressive method became mandatory in 1987, and was formally
added to the AHERA regulations in the Code of Federal Regulations. (52 Federal
Register 41826, October 30, 1987; 40 CFR §763 App. A.)
But the Purple Book has never been updated to reflect the change to the mandatory
aggressive testing. Most asbestos abatement professionals and EPA staff only
consult the Purple Book. They believe that aggressive testing is only recommended.
This is unfortunate.
EPA developed the “aggressive leaf-blower/short term air test” to save time
– Previously, EPA required air sampling for at least 8 hours or more
The reason that EPA developed the AHERA TEM clearance test was to save time
and costs. Previously, it required sampling the air for at least 8 hours, under “work
day” conditions of human activity if possible, so that enough air would pass through
the filter to collect enough asbestos fibers to detect:
Sampling for asbestos consists of collecting fibers by drawing air through a filter
at a know n rate. Usually sam pling equipment is placed at a fixed location for a
certain pe riod of time. B ut this appro ach ma y fail to de tect the pre sen ce o f fibers.
For exa mp le, if sam pling is c ond ucte d for a short time d uring a quiet period (i.e.,
when air movement is limited), many fibers will settle out of the air onto the floor
and other surfaces and may not be captured on the filter. Under these conditions,
air measurements could show little or no asbestos.
Previously, EPA recom men ded sam pling for at least eight hours to cover various
- 21 -
air circulation conditions and thus increase the likelihood of capturing asbestos
fibers if they are prese nt. A quicker and more effective way to accomplish this,
however, is to circulate the air a rtificially so that the fibers remain airborne during
sampling.
Th is “agg ressive sam pling” is reco mm end ed for the post-a bate me nt air tes t.
[Actu ally, the regu lations at 40 CF R 763 A ppe ndix A req uire it.] Recommended
methods for conducting aggressive sampling are presented in Appendix M. They
use forced-air equipment such as a leaf blower to dislodge free fibers then slow-
speed fans to keep the fibers suspended during sampling.
[emphasis added]
[US EPA (1985) Guidance for Controlling Asbestos-Containing Materials in Buildings, Office of
Pesticides and Toxic Substances, Publication No. EPA 560/5-85-024, Section 6.4.2.1. The
“PURPLE BOOK” Available at no charge from: National Service Center for Environmental
Publications (NSCEP), PO Box 42419 Cincinnati, OH 45242, 1-800-490-9198 or (513) 489-8190,
Fax: (513) 489-8695, http://www.epa.gov/ncepihom/ ]
EPA found that using a leaf blower increased asbestos concentrations in air by
thousands of times. It was a “worse case” scenario.
One study showed that using a leaf blower increased airborne asbestos concentrations
over 100 times that caused by even vigorous broom cleaning. (Millette, J., et al.
Applications of the ASTM Asbestos in Dust Method D5755. In: Advances in
Environmental Measurement Methods for Asbestos, ASTM Special Technical
Publication 1342.) And vigorous broom cleaning has been demonstrated to increase
asbestos levels hundreds or thousands of times over that of passive conditions which
do not disturb dusts.
EPA did not test air indoors, or air where children actually breathe
EPA only tested air outdoors after the WTC disaster, and did nothing to test indoors.
The New York City Department of Health, who claimed to have responsibility for
the indoor environment, did not test air indoors, but left it up to the building owners
and occupants.
EPA Headquarters has acknowledged now that its outdoor testing was irrelevant to
showing asbestos levels indoors. On February 12, EPA Administrator Christine
Whitman wrote to Senator Hilary Clinton, stating:
Of co urse, the environmental issues of concern to th ose w ho live, work, a nd visit

Lower Manhattan are not limited to outdoor air quality issues. People are also
justly concerned about indoor environmental quality. The enormous amount of
particulates released by the collapse of the W orld Trade C enter towers
permeated many of the surrounding buildings, including apartments, offices, and
other indoor spaces throughout the area surrounding Ground Zero.
- 22 -
As you may recall, in the days immediately following September 11th, the City of
New York assumed responsibility for indoor environmental quality. ... Despite the
City’s best efforts to address indoor environmental issues, it is apparent that
many concerns and challenges remain. I am committed to providing additional
assistance to the City and its residents and stand ready to do so. In addition, as
you suggested yesterday, I will be working with our local, state, and federal
partners to establish a Task Force on Indoor Air in Lower Manhattan, so that we
can move as quickly as possible to address the remaining concerns we all share.
Even if testing is done at the low levels associated with asbestos health effects
(0.000004 f/mL (PCM)), there must be human activities or simulated human
activities in the same room at the same time of the testing. When testing airborne
asbestos levels inside homes in Libby, Montana, the Superfund site, EPA had both
stationary air monitors and monitors worn by residents going about their normal daily
activities. The monitors worn by the people picked up higher concentrations of
asbestos than the stationary monitors in the same rooms sampling air at the same
times. See the risk assessment for the Libby site for a description, posted at:
http://www.epa.gov/region8/superfund/libby/riskassess.html .
Another study showed that asbestos concentrations in air can be undetectable or

below 0.005 s/mL when there are no activities in the room to stir up dusts, but as
high as 0.09 to 54 s/mL when activities such as vacuuming, broom sweeping, gym
activities, etc. are going on in the room to disturb the dusts. (Millette, J. R., and
Hays, S. M. (1994), Chapter 8, Resuspension of Settled Dust, in: Settled Asbestos
Dust Sampling and Analysis, page 63, Table 2, Lewis Publishers, ISBN 0-87371-948-
4.)
To date, Region 2's tests of outdoor air are irrelevant to determining the
concentration of asbestos in indoor air, because outdoor air becomes diluted with
other air. Indoors, however, asbestos dust in a confined space will result in much
higher asbestos concentrations.
Furthermore, the recent tests on indoor air performed by the Agency for Toxic
Substances and Disease Registry (ATSDR), part of the Centers for Disease Control,
at the request of the New York City Department of Health (NYC DOH) are also
inadequate, in all probability. The NYC DOH, while not releasing the actual
results, claims that the ATSDR tests showed no elevated air levels. We can assume
that the NYC DOH is contending that the 70 s/mm2 level, or 0.01 f/mL (PCM) is
what is safe, because testimony of Thomas Frieden, Commissioner of the NYC DOH
on February 11, 2002 made these assertions.
An earlier section above shows that this 70 s/mm2 level is higher than even found at
the Libby, Montana Superfund site.
The following table gives the legal/legitimate and illegal/illegitimate ways to

determine whether asbestos levels in air in homes, offices, or schools meets EPA
standards:
- 23 -
LEGAL/LEGITIMATE ILLEGAL/ILLEGITIMATE
AIRBORNE ASBESTOS TESTING METHODS AIRBORNE ASBESTOS TESTING METHODS
0.000004 f/mL (PCM) 0.01 f/mL (PCM) 0.000004 f/mL (PCM) 0.01 f/mL (PCM)
laboratory sensitivity = 0.02 s/mL (all fibers) laboratory sensitivity = 0.02 s/mL (all fibers)
(detection limit), the EPA = 70 structures per square (detection limit), the EPA = 70 structures per square
10 -6 risk level millimeter 10 -6 risk level millimeter
Conditions of actual or Testing for this level ONLY Passive conditions, i.e., no
simulated human AFTER the following activities to disturb dusts This level under either
activities, such as a child conditions, as required by to cause them to be passive testing conditions
jumping on a 40 CFR 763: airborne. (no human activity) or
contaminated couch or even normal human
rolling around on 1. Completion of activities
contaminated carpet professional certified
asbestos abatement
2. Suspension of dusts by
using one-horsepower leaf
blower followed by fans
during actual testing.
Chart of cancer risks associated with different asbestos test levels, standards,
Region 2 detection limits, inside homes at Libby Superfund site, and typical
normal background air levels
The following page is a chart showing different cancer risks associated with different
asbestos air levels. The different air levels include the AHERA test level of 70
structures per millimeter squared, air levels found inside homes at the Libby
Superfund site, the lowest level that Region 2 could test for, and the Agency for
Toxic Substances and Disease Registry peer reviewed consensus findings for typical
background air both inside and outside.
- 24 -
ASBESTOS AIR CONCENTRATIONS AND RISKS
Excess Cancer Air Level - Air standards, levels actually found, detection limits, etc.
Risks, Lifetime fibers per
Exposure milliliter, PCM
equivalent
f/mL (PCM)
1 per 100 0.04 EPA’s Integrated Risk Information System (IRIS) cancer risk level
0.0095 - 0.019 AHERA level of 70 structures per square millimeter, converted to PCM-equivalent
fibers per milliliter (25 to 50% of fibers estimated to be PCM equivalent). This is
a lab background for a test using filters known to be contaminated with
asbestos, not the AHERA standard.
1 per 1,000 0.004 EPA’s Integrated Risk Information System (IRIS) cancer risk level
0.0011 - 0.0043 Region 2's detection limits, converted to PCM equivalents (25 to 50% of fibers
estimated to be PCM equivalent). THE LOWEST LEVEL THEY COULD FIND
0.0024 Libby Superfund site, average inside homes resulting in Superfund designation
1 per 1,000,000 0.000004 EPA’s Integrated Risk Information System (IRIS) cancer risk level
0.000003 inside air, Agency for Toxic Substances and Disease Registry, peer reviewed
overall value
0.000002 outside air, Agency for Toxic Substances and Disease Registry, peer reviewed
overall value
0 cancers 0 AHERA safe level standard, 40 CFR §763, Appendix C - Asbestos Model
Accreditation Plan
Asbestos School Hazard Detection and Control Act safe level

ASBESTOS IN SETTLED SURFACE DUSTS AND SOILS
EPA Region 2 claims that 1% is the safe level for asbestos in dusts lying on
surfaces or in soils
EPA Region 2 has repeatedly claimed only dusts from the WTC collapse containing
1% or more asbestos should be treated as hazardous, strongly implying that 1% is the
safe level:
In Dust. If a substance contains 1% or more asbestos, it is considered to be an

"asbestos-c ontaining material." There are fede ral regulations in place to ensure
the proper handling and disposal of asbestos-containing material. If a substance
con tains less th an 1 % asb esto s, these re gulations d o no t apply.
EPA is using the 1% definition in evaluating dust samples from in and around
ground zero. The vast majority of the samples taken to date have levels of
asbestos below 1%. In fact, in an urban environment like New York City, we can
expect the presence of a low level of asbestos under normal circumstances
(thes e low eve ryday lev els are ca lled "backg roun d leve ls").
[EPA website on September 11 Response posted at http://www.epa.gov/epahome/wtc/activities.htm ]
Regional Counsel for EPA’s Region 2 made the following assertions:
EPA has two sets of regulations that deal with asbestos ... neither set of
regulations is directly applicable to the conditions in the wake of the WTC disaster
... The first set of asbestos-related regulations are part of the National Emission
Standards for Hazardous Air Pollutants (NESHAP s) ... pursuant to ... the Clean
Air Act ... The second set of regulations are those promulgated by EPA pursuant
to the Asb esto s H aza rd Eme rgen cy R esp ons e Ac t (AH ER A) ...
Both sets of regulations include a definition and standard for “asbestos-containing

ma terial.” ...
One of th e first d ecisions that EP A had to m ake w hen sam pling for as besto s in
the dust from the WTC collapse was what reference value to use when reporting
the data – in other words, at what concentration of asbestos in the bulk dust
samples w ould the Agency characte rize the dust as conta ining asbestos in
quantities of significance? EPA elected to use the definition of ACM [asbestos
containing material] from the NESHAPs regulations – i.e., the 1% asbestos
content standard.
- 25 -
Under the EPA NESHAP, 1% asbestos is not considered a safe level
– 1% only applies when defining the asbestos-containing building

material itself
– Region 2 Counsel agrees that 1% is not related to health risks
– Region 2 Counsel states that 1% is only the detection limit of a crude

method, PLM, that lacks sensitivity to test for lower levels
– Region 2 Counsel, however, fails to state that EPA policy requires a

more sensitive method, TEM, for settled dusts and other solids
In guidance under the Clean Air Act asbestos NESHAP, the EPA clearly states that
the 1% level is only to be used to determine whether a building material itself
contains asbestos, and that 1% is not a safe level, or a “standard.” Under the
NESHAP, any dusts or contamination resulting from the use of building materials
containing asbestos, which are called emissions, are regulated at much, much lower
concentrations of asbestos in the dusts themselves.
In April 1973, the US Environmental Protection Agency (EPA) issued the National
Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos (38 FR
8820). The NESHAP regulation governs the removal, demolition and disposal of
asbestos containing bulk waste. An asbestos-containing product, as stated by
the regulation was defined for the first time to be a product with greater than 1%
asbestos, by weight. The intent of the 1% limit was:
... to ban the use of materials which contain significant quantities of asbestos, but
to allow the use of materials which would (1) contain trace amounts of asbestos
which occ ur in num erous natu ral substan ces, a nd (2) include very small
quantities of asbestos (les s th an 1 percent) added to enhance the m ate rial’s
effectiveness. (38 FR 8821).
It most be clearly understood that the EPA NESHAP definition of 1% by weight

was not established to be a health-based standard.
[emphasis added]
[US EPA (April 18, 1989) Interim Asbestos NESHAP Enforcement Guidance - “Friable asbestos” 1%
by Area of Volume vs. 1% by Weight. Office of Enforcement and Compliance Monitoring EPA
Publication No. EPA 560/5-88-001. Available online at:
http://es.epa.gov/oeca/ore/aed/comp/ecomp/e6.html ]
Region 2 Counsel agrees that the 1% level is not a safety standard, contradicting the
other Region 2 claims. He states that this level only relates to the detection limit of
the method that Region 2 chose to use in Lower Manhattan, the crude PLM method.
Note that the 1% standard is not necessarily health- or risk-based, but rather
key ed to the detec tion limits o f the spec ified analytical method .
[Mugdan, Walter E. (January 25, 2002) Environmental law issues raised by terrorist events. Speech
before the NY Bar Association, NYC. Walter Mugdan is Regional Counsel for EPA Region 2.
- 26 -
Posted at www.NYenviroLAW.org ]
However, what Region 2 Counsel fails to admit is the fact that more sensitive test
methods, namely TEM, is required by official EPA policy when the less sensitive test,
PLM, fails to show the presence of asbestos. See later sections on the EPA guidance
requiring TEM testing of settled dusts and other solid materials.
In Superfund guidance, EPA found 1% asbestos or lower is hazardous
In guidance for Superfund cleanup actions, EPA has also stated that less than1%
asbestos in soils could present hazards:
Questions and Answers about Asbestos and EPA's Libby Investigation
Q : I recently read that EPA found less than 1% (or trace levels) asbestos at
Firem an's P ark and other locatio ns that were sam pled. Is that a safe level?
A : This is a very difficult question, and at this time we are not sure. Levels at 1%
or less m ay b e sa fe. Even h igher levels could be con sidered s afe at rem ote
locations w here no one c om es in c onta ct with the m aterial. The k ey to
determining whether there is a risk is exposure. If there is no exposure pathway
i.e., a way for the asbestos to get into your body, such as contact with the
material, or people driving over the material so that they breathe in the fibers,
there is no risk. Levels of 1% or less could present a risk where there is enough
activity to stir up soil and ca use asb esto s fibers to beco me airborne.
[www.epa.gov/region8/superfund/libby/qsafe.html ]
Soils containing only 0.001% asbestos can lead to hazardous air levels
One study found that soils containing only 0.001% asbestos can lead to air
concentrations of 0.01 fibers per milliliter (f/mL) (PCM). As seen from the
preceding section on asbestos in air, this level of 0.01 f/mL is many times over either
the EPA one-in-a-million cancer risk level of 0.000004 f/mL (PCM), or the typical
background levels of asbestos in outdoor air of 0.000002 f/mL (PCM); or indoor air
of 0.000003 f/mL (PCM).
Suitable Action Levels ... Airborne dust clouds were generated from mixtures of
soils w ith differen t asbesto s va rieties in b ulk conc entra tions rang ing from 1 to
0.001 % asbestos. ... The experiments showed very clearly that even the lowest
bulk amphibole asbestos content tested (0.001%) was still capable of producing
measurable airb orne asbesto s concentratio ns (greater than 0.01 fibers ml -1).
[Addison, J. (1995) Vermiculite: A review of the mineralogy and health effects of vermiculite
exploitation. Reg. Tox. and Pharm. 21: 397 - 405 ]
- 27 -
Decontamination of demolition sites must be cleaned up to background, not
just 1%, under the EPA asbestos NESHAP
Under EPA’s NESHAP, the surrounding soils around a demolition site must be
cleaned up to background levels of asbestos.
Region 2 has attempted to draw guidance from these NESHAPs regulations, citing
them in its justification for claiming that 1% is the cleanup level, drawing an analogy
to the regulations for the asbestos containing building materials themselves.
The correct analogy, however, would be to compare what is required for soils
surrounding a demolition site, where the WTC is considered the demolition site. As
seen below, the surrounding soils are required to be cleaned up to background levels,
not 1%.
De con tam ination of De mo lition Site
If the surrounding soil has been contaminated by the demolition activities at the
site, the site must be cleaned up to background levels of asbestos contamination.
Alternatively, the site may be operated in accordance with section 61.154
(Standard for active waste disposal sites) and closed in accordance with section
61.151 (Standard for inactive waste disposal sites for asbestos mills and
manufacturing and fabricating operations). However, according to 40 CFR 61.05,
the establishment of an active waste site requires prior approval from EPA or the
delegate d Sta te pro gram . To clean up the site to background levels, it w ill
probably be necessary to remove all the asbestos contaminated soil. The
contaminated soil should be treated and disposed of as asbestos-containing
waste m ate rial.
De con tam ination of Area Su rrounding Dem olition Site
If a site as ses sm ent detec ts co ntam ination of soil surrounding a demolition site,
the site must be cleaned up to background levels of asbestos contamination.
Alternatively, the site may be operated in accordance with section 61.154
(Standard for active waste disposal sites) and closed in accordance with section
61.151 (Standard for inactive waste disposal sites for asbestos mills and
manufacturing and fabricating operations). However, according to 40 CFR 61.05,
the establishment of an active waste site requires prior approval from EPA or the
delegate d Sta te pro gram . To clean up the site to background levels, it w ill
probably be necessary to remove all the asbestos contaminated soil. The
contaminated soil should be treated and disposed of as asbestos-containing
waste m ate rial.
[emphasis added]
[US EPA (1994) Asbestos/NESHAP Demolition Decision Tree. EPA Manufacturing, Energy, and
Transportation Division, Office of Compliance. Available from the EPA OPPTS Ombudsman’s office]
Region 2 would need to establish background levels for soils and dusts by measuring
enough samples from other parts of the city and surrounding suburbs using sensitive
testing. As shown later, the required laboratory method would be TEM analyses for
bulk soils and dusts, according to EPA policy under both AHERA and the NESHAP.
- 28 -
The Agency for Toxic Substances and Disease Registry found no studies measuring
typical soil background levels of asbestos. From a limited additional literature search,
I also found no studies. Thus, I am not able to provide data for typical soil levels or
background levels for asbestos. (ATSDR (2000) Toxicological Profile for Asbestos,
Centers for Disease Control, ATSDR. Available by calling 1-888-42-ATSDR. At
this time, only the final draft version is posted on the internet at
www.atsdr.cdc.gov/toxprofiles/tp61.html )
Under both the EPA NESHAP and AHERA regulations, ZERO emissions of
asbestos-contaminated dusts is required, not emissions containing only 1%
asbestos or less
Under both the asbestos NESHAP and AHERA regulations, ZERO emissions of
asbestos-containing dusts are required, not “emissions of dusts containing less than
1% asbestos.”
In the collapse of the WTC, the airborne dusts are also analogous to the dust
emissions from the transport or disposal of asbestos wastes under AHERA or the
NESHAP. From the above section, they are probably more analogous to
contaminated soils around a demolition site. They are not, however, as Region 2 is
trying to argue, analogous to the original building materials themselves where the 1%
rule applies..
The requirement for zero emissions, not emissions of dusts containing less than 1%
asbestos, is made clear in the following guidance and regulations:
[NESH AP] Q : Is there a numeric em ission limit for the release of asbestos fibers
during renovations or demolitions in the asbestos NESHAP regulation?
A: No, the Asb estos N ESH AP relating to demolitions or renovations is a work

practice standard. This means that it does not place specific numerical emission
limitatio ns for asbesto s fibers on asbestos demolitions and re movals. Ins tea d, it
requires specific actions be taken to control emissions. However, the Asbestos
NE SH AP does sp ecify zero visible e missions to the ou tside a ir from activity
relating to the tra nsp ort an d disp osa l of asb esto s w aste .
[emphasis added]
[US EPA. Common Questions on the Asbestos NESHAP. Posted at

http://www.epa.gov/opptintr/asbestos/neshap.pdf ]
[NE SH AP] 40 C FR §61 .144 Stan dard for m anu facturing. ...
(b) Stan dard . Each o wn er or ope rator of any of the m anu facturing opera tions to
wh ich this sec tion ap plies shall either:
(1) Discharge no visible emissions to the outside air from these operations or
from any building or structure in which they are conducted or from any other
fugitive sourc es; or
(2) Use the methods specified by §61.152 to clean emissions from these
operations containing particulate asbestos m aterial before they esc ape to, or are
- 29 -
ven ted to, the ou tside a ir.
(3) Monitor each potential source of asbestos emissions from any part of the
manufacturing facility, including air cleaning devices, process equipment, and
buildings housing material processing and handling equipment ...
[AHERA] 40 CFR § 763 - Appendix D to Subpart E -- Transport and Disposal of

Asbes tos W aste
For the purposes of this appendix, transport is defined as all activities from receipt
of the containerized asbestos waste at the generation site until it has been
unloade d at the dispo sal site. Current EPA regulations s tate tha t there must be no
visible e missions to the ou tside a ir during waste tra nsp ort. However, recognizing
the potential hazards and subsequent liabilities associated with exposure, the
following additional precautions are recommended.
[emphasis added]
The regulations themselves define the building materials as those containing 1% or

more asbestos, and the dusts emanating from these materials are defined as emissions
or debris. The 1% regulations do not apply to the emissions.
[AH ER A] 40 CF R §763 .83 D efinitions . For purp ose s of this subpa rt: Act means
the T oxic Sub stan ces Control Act (TSC A), 15 U.S .C. 26 01, et seq. ...
As besto s-conta ining m ate rial (ACM) when referring to school buildings
means any material or product which contains more than 1 percent asbestos.
As besto s-conta ining building mate rial (ACBM) means surfacing ACM,
thermal system insulation ACM, or miscellaneous ACM that is found in or on
interior structural members or other parts of a school building. As besto s debris
means pieces of ACBM that can be identified by color, texture, or composition, or
me ans dus t, if the dus t is determined by an ac credited inspe ctor to be A CM . ...
Fiber release episode means any uncontrolled or unintentional disturbance
of ACBM resulting in visible emission.
4. "Major fiber release episode" means any uncontrolled or unintentional
disturbance of ACBM, resulting in a visible emission, which
involves the falling or dis lodging of more than 3 square or line ar feet of friable
ACBM.
5. "Minor fiber release episode" means any uncontrolled or unintentional
disturbance of ACBM, resulting in a visible emission, which
involves the falling or dislodging of 3 square or linear feet or less of friable ACBM.
[NE SH AP] 40 C FR §61 .141 Definitions. ...

Category I nonfriable asbestos-containing material (ACM) means
asbesto s-conta ining packings, gask ets , resilient flo or covering and asphalt
roofing pro duc ts co ntaining m ore th an 1 perc ent asbe stos ...
Category II nonfriable ACM means any material, excluding Category I
non friable A CM , containing mo re tha n 1 percent asbe stos ...
Fugitive source means any source of emissions not co ntrolled by an air
pollution con trol dev ice. ...
Visible emissions means any emissions, which are visually dete cta ble
witho ut the aid of ins trum ents , coming from RACM [regulated asbestos containing
material] or asbestos-containing waste material, or from any asbestos milling,
- 30 -
manufacturing, or fabricating operation. This does not include condensed,
unc om bined water v apo r.
[emphasis added]
EPA guidance requires the most sensitive method, transmission electron

microscopy (TEM), for certain bulk materials under both the asbestos
NESHAP and AHERA
– Region 2 only used the less sensitive method, PLM, in violation of

EPA policy
EPA advises against the use of polarized light microscopy (PLM) for those situations
where the asbestos fibers are thin and cannot be detected by PLM. EPA has issued
guidance for the use of a more sensitive test method for bulk materials (building
materials, dusts and soils lying on surfaces) using transmission electron microscopy
(TEM).
The asbestos fibers from the WTC are primarily of the chrysotile category, where
many of the fibers are thin and cannot be detected using PLM. TEM is the more
sensitive method that can detect them in settled dusts, soils, and other solid
materials, as well as in air.
In 1994, EPA issued guidance to offer added precaution and protection for workers
and building occupants under both the asbestos in schools rule (AHERA) and the
Clean Air Act asbestos NESHAPS for the improved method for the analysis of bulk
samples. EPA recommended that if any materials were found not to contain asbestos
by the old method (PLM, polarized light microscopy) should be retested using
transmission electron microscopy (TEM).
Abstracts of the EPA advisory from the Federal Register follow:
This notice announces the availability of an improved asbesto s bulk sample

analysis test method for use with bulk samples collected for identification of
asbestos-containing materials under the Asbestos Hazard Emergency Response
Act (AHERA) regulations and the asbestos National Emission Standard for
Hazardous Air Pollutants (NESHAP).
...
The test method provides clarifications and improvements to the 1982 EPA
``Interim Method for the D eterm inatio n of Asbestos in B ulk In sulation Samples ''
(as found in 40 CF R part 76 3 Ap pen dix A to Su bpa rt F). Specifically, use of the
improved method can provide more precise analytical results especially at low
asbesto s concentratio ns, enhanced analysis of flo or tiles wh ich may conta in thin
asbestos fibers below the limits of resolution of the polarized light microscope
(PLM), and clearer instruction on the analysis of bulk materials, particularly where
- 31 -
mu ltiple layers are pres ent.
The 1982 method is limited in that it does not provide guidance for analyzing
materials that contain thin (<0.25 micrometers) asbestos fibers. As a
consequence, floor tiles which were analyzed according to the 1982 method and
for which negative results were reported may actually contain undetected
asbestos. At this time EPA does not have data to support identification of other
materials which may have thin fibers.
The improved method addresses the thin fiber limitation of the 1982 method by
providing directions for using transmission electron microscopy (TEM). The test
method includes improved procedures for reducing matrices so that fibers may be
ma de availab le for m icros cop ic ana lysis.
In light of the availability of the improved method, EPA recommends that local
educa tion agencies (LEA s) use the improved method in place of the 1982
procedures as found in 40 CFR part 763 Appendix A to Subpart F. EPA has
made the determination that the improved method is more capable of producing
acc urate resu lts than the 1982 proto col an d thus se rves as a pre ferred su bstitute
method. Further, EPA recommends that LEAs wh ich ha ve P LM laboratory resu lts
indicating floor tiles to be non-asbestos-containing (asbestos present in less than
or equal to 1 percent) reconsider whether these materials may have thin asbestos
fibers.
...
Before undertaking activities which might trigger asbestos NESHAP
requirements, it is recommended that LEAs consider resampling multi-layered
materials which have been found to be nonasbestos-containing for AHERA
purposes or assume them to be asbestos-containing prior to disturbance
according to the guidelines set forth in this current notice, in the January 5, 1994
NESHAP Federal Register notice, and in the improved analytica l meth od to avoid
potential violation of the asbestos NESHAP.
[emphasis added]
[FR notice is posted at

http://yosemite.epa.gov/R10/OWCM.NSF/d14dabb756dc1fb3882565000062f164/878a5d97c3853a2e
882566dd0056fee7?OpenDocument .
This guidance was published in the Federal Register for AHERA on August 1, 1994 (59 FR 38970),
and for the asbestos NESHAP on January 5, 1994 (59 FR 542). 1994 FR is posted at
http://www.access.gpo.gov/su_docs/multidb.html . See also the Asbestos Sampling Bulletin, 1994
EPA Order Number: EPA745K94058, US EPA Environmental Assistance Division, TSCA Assistance
Information Service Hotline, 1200 Pennsylvania Ave NW (7408), Washington, DC 20460, Phone
Number: 202-554-1404, Fax Number: 202-554-5603]
EPA NESHAP regulations require testing by the sensitive TEM method for
asbestos-derived wastes to determine if they asbestos free
– The asbestos-free level is “no asbestos detected by TEM” – not 1%
The NESHAP regulations themselves require the use of transmission electron

microscopy (TEM) to determine whether wastes can be considered “asbestos free.”
The standard for being asbestos free is not 1%, but instead no detectable asbestos by
the most sensitive test method, TEM. The use of polarized light microscopy (PLM)
is not sufficient according to the regulations, because this method cannot reliably
- 32 -
determine asbestos at concentrations less than 1%, and because this method cannot
detect the thinner, smaller asbestos fibers, such as chrysotile.
[NESHAP] 40 CFR § 61
§61.155 Standard for operations that convert asbestos-containing waste material

into no nas bes tos (a sbe stos -free) material.
Each owner or operator of an operation that converts RACM and asbestos-
containing waste material into nonasbestos (asbestos free) material shall: (a)
Ob tain the prior w ritten ap prov al of the Adm inistrator to co nstru ct the facility.... In
add ition to the inform ation re quireme nts of §61.07(b )(3), a (i) Description of waste
feed handling and temporary storage. (ii) Description of process operating
conditions. (iii) Description of the handling and temporary storage of the end
product. (iv) Description of the protocol to be followed when analyzing output
materials by transmission electron microscopy.
...
(b) C ond uct a start-u p pe rform anc e test. Tes t resu lts sha ll include:
(1) A detailed description of the typ es and quantitie s of nonasbestos mate rial,
RA CM , and asb esto s-conta ining w aste ma terial pro ces sed , e.g., asbestos
cement products, friable asbestos insulation, plaster, wood, plastic, wire, etc. Test
feed is to include the full range of materials that will be encountered in actual
ope ration of the p rocess .
(2) Results of analyses, using polarized light microscopy, that document the
asb esto s co nten t of the w aste s pro ces sed .
(3) Results of analyses, using transmission electron microscopy [TEM], that
document that the output materials are free of asbestos. Sam ples for analysis are
to be collecte d as 8-hour com posite samples (one 200-gram (7-ounce) sample
per hour), beginning with the initial introduction of RACM or asbestos-containing
wa ste m aterial and c ontinu ing un til the end of the p erforma nce test.
...
(c) During the initial 90 days of ope ration ... (2) Monitor input materials to ensure
that they are consistent with the test feed materials described during start-up
performance tests in paragraph (b)(1) of this section. (3) Collect and analyze
samples, ta ken as 10-day com posite samples (one 200-gram (7-ounce) sample
collected every 8 hours of operation) of all output material for the presence of
asb esto s. Com pos ite sam ples ma y be for few er tha n 10 day s. Transmission
electron microscopy (TEM) shall be used to analyze the output material for the
presence of asbestos. During the initial 90-day period, all output materials must
be stored on-site until analysis shows the material to be asbestos-free or
dispose d of as as bes tos- c onta ining w aste ma terial according to §61.15 0....
(h) Nonasbestos (asbestos-free) output material is not subject to any of the
provisions of this subpart. Output materials in which asbestos is detected, or
output materials produced when the operating parameters deviated from those
established during the startup performance testing, unless shown by TEM
analysis to be asbestos-free, shall be considered to be asbestos-containing
wa ste and shall be handled and disposed of according to §§61.150 and 61.154 or
reproce sse d while all of the establishe d op erating pa ram eters are b eing me t.
[emphasis added]
- 33 -
OSHA regulations recommend TEM analyses of settled, bulk dusts
The Occupational Safety and Health Administration (OSHA) also recommends the
use of sensitive TEM analyses for settled, bulk dusts and other solid asbestos
materials. The following are the relevant OSHA regulations:
[OSHA] 29 CFR 1926.1101 Appendix A -Polarized Light Microscopy of Asbestos -

Non-Mandatory
...
Light microscopy has been used for well over 100 years for the determination of
mineral species. This analysis is carried out using specialized polarizing
microscop es [P LM ] as w ell as bright field m icros cop es. ...
Wh en electron micros copy w as applied to asbes tos analysis, hundreds of fibers

were discovered present too small to be visible in any light microscope [such as
PLM]. There are two different types of electron microscope used for asbestos
analysis: Scanning Electron Microscope (SEM) and Transmission Electron
Microscope (TEM). Scanning Electron Microscopy is useful in identifying
minerals. The SEM c an p rovide tw o of the three piece s of information re quired to
identify fibers by electron microscopy: morphology and chemistry. T he third is
structure as dete rm ined by S electe d Area Electron D iffractio n -- SA ED wh ich is
performed in the TEM. Although the resolution of the SE M is sufficient for very
fine fibers to be seen, accuracy of chemical analysis that can be performed on
the fibe rs varies with fibe r diam eter in fibe rs of les s than 0.2 um diam eter. The
TEM is a powerful tool to identify fibers too small to be resolved by light
microscopy and should be used in conjunction with this method when necessary.
The TEM can provide all three pieces of information required for fiber
identification. Most fibers thicker than 1 um can adequately be defined in the light
microscop e.
The light microscope remains as the best instrument for the determination of
mineral type. This is because the minerals under investigation were first
described analytically with the light microscope. It is inexpensive and gives
pos itive iden tification for mo st sa mp les an alyzed. Further, when optical
techniques [PLM] are inadequate, there is ample indication that alternative
techniques [TEM and SEM] should be used for complete identification of the
sample.
[emphasis added]
[Code of Federal Regulations posted at either OSHA site at

http://www.osha.gov/OshStd_toc/OSHA_Std_toc.html or
http://www.access.gpo.gov/nara/cfr/cfr-table-search.html ]
Settled dusts in Lower Manhattan had higher asbestos than soils in Libby, MT
– Region 2 claims that asbestos levels are “low” in Manhattan dust
The settled dusts in Lower Manhattan tested in the early days after the WTC
collapse had higher concentrations of asbestos than outdoor soils in the town of
Libby, Montana, the Superfund site.
- 34 -
Around 35% of the samples of bulk dust taken in Lower Manhattan in the first few
days afte r the collapse exc eeded the 1% level.
There was a higher percentage of samples that had over 1% asbestos from the WTC
than soils in Libby, Montana, the town that is a Superfund site. The concentrations
of asbestos, when the asbestos was found, are the same in Libby as in Lower
Manhattan. In Libby, soils from yards from residences, etc., are being removed
because of the asbestos hazard they pose.
The following table compares the WTC dust levels to soils in Libby.
COMPAR ISON OF WTC D UST CONT AMINATION WITH ASBESTOS IN YARD SOILS AT
LIBBY SUPERFUND SITE
Outd oor du sts or s oils Percent samples with 1% Levels of asbestos that
or higher asbestos were over 1%
Lower Manhattan, first few days 35 % 1 - 4.5 %
Libby, Montana, soils from yards 2.6 % 1-5%
Table 1, page 6 of risk assessment, Weis, C. P., Senior Toxicologist/Science Support Coordinator, U.S. EPA
(December 20, 2001) Excerpts from: Amphibole mineral fibers in source materials in residential and commercial areas
of Libby pose an imminent and substantial endangerment to public health. Posted at:
http://www.epa.gov/region8/superfund/libby/riskassess.html
Mugdan, Walter E. (January 25, 2002) Environmental law issues raised by terrorist events. Speech before the NY
Bar Association, NYC. Walter Mugdan is Regional Counsel for EPA Region 2. Posted at www.NYenviroLAW.org
Region 2 Counsel has claimed that the asbestos concentration in WTC dusts was low
and not a health hazard. This directly contradicts the findings of the extensive risk
assessment for Libby where the same concentrations, occurring less frequently, were
the basis for placing Libby on the Superfund list:
By contrast, when WTC dust was found to contain concentrations in excess of

1%, it was nevertheless still quite low – typically between 1% and 4%.
Dusts from the collapse of the WTC present more risk than soils in Libby because
they are a finely divided surface dust with no vegetation to hold them in place.
Although the dusts from the WTC have now been removed to some extent, we do
not know how effective the removal is to date, or whether dusts have been effectively
removed from roofs, which have a larger surface area than the streets in Lower
Manhattan.
- 35 -
REGION 2 ASBESTOS ABATEMENT AT
THEIR OWN 290 BROADWAY BUILDING
EPA Region 2 had positive results from sensitive TEM testing for its own
building and on this basis decided to abate for asbestos
– Less sensitive PLM tests, the only one used for bulk dusts for the rest
of Manhattan, were negative for the Region 2 building
– But for the results from the more sensitive tests, Region 2 would not
have abated asbestos from its building
– TEM tests for bulk dust are required by EPA policy, but Region 2 did
not use these tests for the rest of Manhattan
– EPA Region 2 was offered free access to similar more sensitive

testing (SEM) by Region 8 for the rest of Manhattan but refused
– The same, more sensitive test method (SEM) was used after the first
bombing of the WTC in 1993, but Region 2 refused it after the WTC
EPA had positive results for settled asbestos in its own building at 290 Broadway
from a very sensitive test, transmission electron microscopy (TEM). This test is able
to detect asbestos in much lower concentrations and is able to detect much smaller
asbestos fibers than the older method, PLM.
But for the fact that Region 2 had the results of this more sensitive method, TEM on
settled dusts, it would have taken no action to clean its building. This is because the
results of the other tests, the air tests and the PLM tests of the settled dusts, were
negative.
On the basis of the results of the sensitive test, EPA cleaned the lobby of its building
with HEPA vacuum trucks, and also cleaned the lobbies of other buildings in the
area. The General Services Administration also cleaned the EPA building, using wet-
wiping methods using standard janitorial services. The filters on the air handling
equipment were also changed, even though tests showed no detectable asbestos in
these filters. EPA employees were “displaced” for a week (employees evacuated from
their offices) during these unusual cleaning operations.
The air both outside the entrance to the building, as well as inside the lobby, were
monitored for asbestos before and after the cleaning procedures. Although Region 2
- 36 -
is not calling these cleaning procedures “professional abatement,” they appear not to
differ from what other Manhattan residents have paid to have performed on their
apartments.
In marked contrast, Region 2 only performed PLM tests for bulk dusts on the ground
for the rest of Manhattan and other parts of New York City and the surrounding
boroughs. This is despite the fact that EPA has issued guidance under both the
asbestos in schools rule (AHERA) and the Clean Air Act asbestos NESHAPS for the
use of TEM for bulk materials, such as settled dusts or other solids. It is EPA policy
that if any materials were found not to contain asbestos by the old method (PLM,
polarized light microscopy) should be retested using transmission electron
microscopy (TEM). This guidance was published in the Federal Register and was
summarized in a preceding section.
This improved TEM method was developed to address situations where small, thin
fibers are present, which are frequently not detected by the magnification and
resolution limits of PLM. Since the primary form of asbestos from the WTC is
chrysotile, and since chrysotile has thin fibers that cannot always be detected by the
older, cruder PLM method, the improved TEM method should have been used for
the rest of Manhattan.
Scanning electron microscopy (SEM) is similar to TEM in its ability to detect the
thin fibers of chrysotile asbestos. Chrysotile asbestos is the primary form of asbestos
found from the WTC collapse.
EPA Region 8 offered Region 2 free SEM analytical capabilities for the evaluation of
bulk asbestos dusts after the WTC collapse. In a September 12 conference call,
Region 8 offered the use of 30 to 40 SEM’s, along with analysts. Region 8 had a
contract with EMSL Laboratories for the SEM’s, since they were using them to
evaluate soils at the Libby, Montana Superfund site. Region 8 was willing to divert
its resources to Region 2 to assist after the disaster. Twelve of the SEM’s were close
by and could have been in Manhattan the next day. However, Region 2 refused the
offer.
The figure shows graphically the difference in the testing methods used at the EPA
Region 2 building, for the rest of Manhattan after the WTC collapse, what was
offered to Region 8 but refused, and what was used after the bombing of the WTC in
1993.
- 37 -
DIFFERENCE IN TESTING METHODS AND SENSITIVITIES FOR:
– EPA Region 2 building at 290 Broadway
– All of Man hattan and surrounding NYC after WTC co llapse
– After the first bombing of the World Trade Center
2
TEM Air NEGATIVE
M 9
low sensitivity air tests using at Region 2 building,
transmission electron 290 Broadway, inside A 0
microscope (TEM) lab and outside lobby, N
instrum ents except 1 sample out H B
of the 47 had 25 A r
s/m m 2, below what
Region 2 calls “safe.” T o
The detection limits T a
(sensitivities) of the A d
air tests ranged from
N w
1 6.7 - 2 5 s/m m 2
a
y
E
PLM Dusts on NEGATIVE
P
low sensitivity polarizing light Surfaces at Region 2 building,
microsc opes w hich can see only 290 Broadway A
and bulk
larger asbestos fibers and can
dusts
only reliably give concentrations
for 1% or higher
TEM Dusts on POSITIVE at Region

high sensitivity transmission surfaces 2 building, 290
electron microscopes which can Broadway. EPA
and bulk
see the sm aller asbesto s fibers guidance requires
dusts TEM on dusts and
and can also see them in much
lower concentrations in dusts, othe r bulk m aterials
prob ably lower th an 0 .001% . for thin fibers under
See 59 FR 38970 for AHERA both AHERA and the
and 59 FR 542 for NESHAP NESHAP
requirement to use TEM on
solid bulk materials.
Offered to EPA Region 2

SEM Dusts on
by Region 8 for free for
high sensitivity scanning electron surfaces
microscopes which can see the Manhattan after WTC
and bulk
smaller asbestos fibers and can collapse. Also used after
dusts
also see them in much lower first bombing of WTC in
concentrations in dusts, 1993
probably lower than 0.001%
- 38 -
The following are excerpts from the report summarizing the asbestos testing and actions
taken at the Region 2 building. The testing was performed under contract to the
General Services Administration, who had overall responsibility for the maintenance of
the building.
On 13 September 2001, air sampling was performed in the building by Phase

Contrast Microscopy (PCM), and by Transmission Electron Microscopy (TEM). All of
the PCM results were less than 0.01 fibers per cubic centimeter (f/cc), and all of the
TEM sam ple results were No Asbestos Structures Detected (NSD). On 14
September 2001 Stratus Corporation was directed to collect two TEM air samples,
and “wipe” samples inside and outside the building lobby, as well as to collect some
bulk sam ples from W A C filters. T hese samples w ere collecte d to determine if
asb esto s fibers are now pres ent w ithin the d ust aroun d the area . After cons ulting w ith
the laboratory, it was decided that the following types of samples would be collected:
1. Vacuum Samples - These are samples where a normal asbestos air sampling
cassette is attached to a pump, and used like a small vacuum cleaner. ... The
material collected can then be analyzed for asbestos by Qualitative Polarized
Light Microscopy [PLM], and Qualitative Transmission Electron Microscopy
[TEM].
2. Tape Samples - This is a sample where the collector uses a piece of clear tape,
like scotch tape, to collect the sample. Where surfaces are visibly dirty, the piece
of tape is applied to the surface, and then removed. ... The material collected can
then be analyzed for as bes tos by Q ualitative Polarized Light M icros cop y [PL M],
and Qu alitative T rans mission Electron M icros cop y [TE M].
3. Filter Samples - These samples are generated by cutting a piece of filter material
out of the H VAC unit in the building a nd placing it in a plastic bag for delivery to
the laboratory. The material collected can then be analyzed for asbestos by
Qualitative Polarized Light Microscopy [PLM], and Qualitative Transmission
Elec tron M icros cop y [TE M].
On 14 September 2001, two dust samples were collects outside the building
entrance, and three samples were collected inside the lobby. The initial TEM
qualitative analysis did find chrysotile asbestos to be present in the dust a t all
locations inside, and outside the building.
On 14 September 2001, two tape samples were collected outside the building
entrance, and three samples were collected inside the lobby. No asbestos was
detected in any of these three samples by PLM qualitative analysis, or by TEM
qualitative analysis.
On 14 September 2001, three samples were collected from the HVAC filters. One
sample was collected from AC-1, one sample was collected from AC-32, and one
sample was collected from AC-31. No asbestos was detected in any of these three
samples by PLM qualitative analysis, or by TEM qualitative analysis.
On e of the two TEM a ir sam ples collected on 14 Sep tem ber 2 001 , simultane ous to
the “w ipe” sam pling both yielded resu lts of No As bes tos S tructu res Detected (N SD ).
The other sample did detect asbestos, as was collected inside the lobby, by the West
wall.
...
- 39 -
After the discovery of asbestos in the lobby of the building, the EPA informed the
building management, that the EPA would be cleaning the lobby areas of all the
buildings in the area. Additionally, building cleaning personnel also began performing
cleaning inside the building lobbies.
On 16 Septem ber Stratus wa s requeste d to begin a re gim e of co ntin uous TE M air

sam pling at the D uan e Stre et entranc e, the only o pera tional entran ce to the building.
Initially, two samples were collected outside the Duane Street entrance, and two
samples were collected inside the Duane Street entrance. ... On 19 September 2001
an additional two sets of sam ples w ere collecte d, and samples w ere taken at the air
intake location to some HVAC systems at this time.
From 16 Septem ber through 19 Septem ber 2001, a total of 47 TEM air samples w ere
collected at this site. Except for three samples, all results were No Structures
Detected. Two of the other samples were overloaded, and the lab performed a
qualitative scan on the sample. This means that particulate matter on the samples
prevented the lab from accurately performing an analysis on the sample, so they had
to declare it overloaded. The qualitative scan was then performed to see if any
asbestos fibers could be found. On both overloaded samples, no asbestos structures
were observed.
One sample collected outsid e the entrance during the m orning of 17 Septe mber did
find asbesto s in the sample. The value for this sam ple wa s 0.00 3 structu res per cubic
centim ete r [equivalent to ] 2 5 structu res per square millimeter. This rea ding is
considered a low reading, and would be an acceptable reading for post abatement
sam pling after an asb esto s ab atem ent project.
[Stratus Corporation (October 5, 2001) Asbestos Emergency Monitoring Report at 290 Broadway after the
World Trade Center Disaster, Final Report. Made available by EPA Region 2 in response to a January 3,
2002 Freedom of Information Act request by the New York Environmental Law and Justice Project.
Posted at http://www.nyenvirolaw.org/PDF/EPA-FOIL-scannedOn-2-27-02.pdf ]
A very different version of these events was contained in a February 22, 2002 letter to
Congressman Nadler from EPA Administrator Whitman:
EPA did not set a more stringent standard of cleanup for these federal buildings, and
the lob by c leanup w as c ons istent w ith the N ew York C ity De partm ent of Health
advisory. After noting significant amounts of dust tracked into 290 Broadway and 26
Federal Plaza by workers responding at the World Trade Center, the General
Services Administration asked EPA to clean the lobbies. The work was done by EPA
contractors using H EP A v acuums already operating in the sam e area. A s outlined in
the enclosure, EP A c ollecte d seven air s am ples at 26 Fe deral Plaza and six air
samples at 290 Broadway, and found results below levels of concern.
[first attachment to letter follows, full text]
USEPA Air Analytical Results from 9/13/01 Sampling Event
26 Federal Plaza: Seven air samples were collected at the 26 Federal Plaza (13 th,
26 th, 38th, 39th floor and in the lobby). The asbestos concentrations ranged from non-
detect to 0.0072 fibers/cc (south lobby). Data results are less than the OSHA
Permissible Exposure Limit of 0.1 fibers/cc.
290 Broa dway : Six air samples we re collected at the 290 Broadw ay (8 th, 22th, LL-
1, LL-2 and Lobby). The asbestos concentrations ranged from non-detect to 0.0133
fibers/cc (LL-1).
- 40 -
One Chase Plaza: One outdoor air sample was colleted at One Chase Plaza; the
asbestos concentration was 0.0098 fibers/cc.
Me thodology.
Air samples were analyzed by TEM EPA 40CFR763 AHERA.
Dust samples were analyzed by PLM – EPA-600 R-93/116.
[Available by FOIA request to EPA Headquarters in Washington, DC, FOIA Office, 1200 Pennsylvania
Ave, Washington, DC 20460. May be posted at www.NYenviroLAW.org ]
The above is an erroneous interpretation of events, contradicted by the information and

report and data sheets supplied by Region 2 to the New York Environmental Law and
Justice Project. Because Ms. Whitman had no first-hand knowledge of the events, it is
probable that Region 2 again supplied her with misinformation. The errors in Ms.
Whitman’s statements are as follows:
! The attachment to Ms. Whitman’s letter, summarizing sampling on September 13,

only mentions the 6 air samples which took place at 290 Broadway on September 13.
However, between September 16 and September 19, another 47 air samples were
taken at 290 Broadway, before and after the unusual cleaning procedures.
! The attachment to Ms. Whitman’s letter misrepresents the type of test method used
for the settled dust. It states that only PLM tests were performed. Although they
were, the settled dusts were also tested by the sensitive TEM method. Region 2
conveniently omitted this important fact.
! The letter does not mention the fact that the report supplied in response to the FOIA
request shows that it was Region 2 who decided to take action, cleaning not only its
own lobby, but the lobbies of other buildings in the area. Thus, Region 2's excuse of
“workers responding at the World Trade Center tracking in dusts” is totally invalid.
Why would they have cleaned the lobbies of other buildings in the area if this were
true?
! The letter does not mention the other special cleaning actions taken at 290
Broadway in addition to the HEPA vacuuming of the lobby. This included the
displacement of all the employees from the building for about a week, the changing of
the air handling filters, and the wet wiping cleaning process, albeit by standard
janitorial personnel.
Region 2 defends the sensitive TEM settled dust tests on its own building by
saying the lab suggested it to GSA
– The lab suggested it only because it was official EPA guidance and a
NY State regulatory requirement to perform TEM tests of settled dusts
and solid materials under this type of situation
Region 2 is reportedly defending the inclusion of the sensitive TEM tests for settled dusts
- 41 -
at its 290 Broadway building by claiming that the laboratory suggested these tests to the
General Services Administration.
But that was only right and proper on the part of the laboratory. The laboratory knew
that the primary form of asbestos which emanated from the WTC collapse was
chrysotile, commonly used in flooring tiles, and commonly having fiber widths
(diameters) to small to be detected by PLM.
In fact, SciLabs was highly responsible in this regard. At the bottom of every table giving
the results of the analyses for the bulk dust analyses on the 290 Broadway building,
SciLabs included the following statement, reminding its clients of the obligations under
EPA guidance and NY State regulations to perform TEM for both floor covering and
similar materials, and that TEM was the appropriate method:
Note: PLM is not consistently reliable in detecting asbestos in floor coverings and similar non-
friable organ ically bo und ma terials. T EM is currently the only m ethod that can be used to
determine if this material can be considered or treated as non-asbestos-containing in New
York State (see also EPA Advisory for floor tile, FR 59, 146, 3897 0, 8/1/94).
[SciLab (September, 2001) Communications transmitting testing results for 290 Broadway building to S&B
Environmental, the contractor who took the samples on behalf of GSA. These lab analyses tables from Scientific
Laboratories, Inc. are included as part of the Region 2 FOIA response to the NY Environmental Law and Justice
Project posted at http://www.nyenvirolaw.org/PDF/EPA-FOIL-scannedOn-2-27-02.pdf ]
Thus, even at the time, EPA was reminded by the laboratory of their obligation under
official EPA guidance, published in the Federal Register, and New York State regulations,
that TEM analyses were required to determine whether or not a material was non-
asbestos-containing.
Region 2 withheld testing results for its own building in response to FOIA
request
It is interesting and telling that Region 2 withheld all of the testing data on its own
building when it provided documents to the New York Environmental Law and Justice
Project (www.NYenviroLAW.org) in response to a 9/21/01 Freedom of Information Act
request. The request included all documents meeting the following description:
... all mon itoring data, studies and repo rts of air, dust, bulk (including bu t not limited to
hazardous materials and water samples) taken from September 11, 2001 to present
in response to the World Trade Center disaster (including but not limited to lower
Manhattan and Staten Island land fills). [original FOIA request posted at
ww w.NY enviroLAW .org ]
- 42 -
CONCLUSIONS
EPA Region 2 has selectively modified and violated federal EPA regulations and
published guidance and directives. Air has not been tested with adequate sensitivity, and
air has not been tested in the places where it matters, inside homes and at the breathing
zones of a small child under conditions of normal activities. Settled dusts and debris
have not been tested with the more sensitive tests required by EPA policy, TEM. Air
and settled dusts have been claimed to be “safe” and “within standards” when no such
standards at the claimed levels exist.
Both the AHERA level of 70 s/mm2 and the detection limits for Region 2's air testing of
asbestos are HIGHER than the levels of asbestos found inside homes in Libby, Montana,
which resulted in that town becoming a Superfund site. No testing to date has been with
adequate sensitivity to show that the air either outside or inside is safe in Manhattan or
the rest of New York City.
The tests for settled dusts also have not been sensitive enough, because Region 2 has
refused to test using sensitive TEM methods, violating EPA guidance and policy. The
1% criteria for safety Region 2 would have us believe is contradicted by the very EPA
NESHAP regulations and guidance which Region 2 claims it is following. Furthermore,
the level of asbestos in settled dusts in Lower Manhattan were higher than the levels in
yard soils at the Libby Superfund site.
To compound these faults, Region 2 utilized the results of more sensitive TEM testing
for settled dusts for its own building, as a basis for an unusual cleanup. The
simultaneous less sensitive method for its building, PLM of settled dusts, was negative.
But this crude PLM test was the only one used by Region 2 for the rest of Manhattan,
even when official EPA guidance required the use of TEM. Later, Region 2 obscured the
fact that it both had the results of and relied upon the sensitive TEM tests for its own
building to Governor Whitman.
While utilizing the results of TEM to take action on its own building, Region 2 even
refused the assistance of EPA Region 8 who offered free SEM testing for the dust in
Manhattan, which is similar to TEM testing.
It is probable that Region 2 has similarly failed other citizens in smaller exposure
situations, where public oversight has been less intense. I personally believe that the
precedents of past failures should not hold sway in this unprecedented tragedy and time
of need of the citizens of New York City.
I also personally believe that Region 2 is not supplying EPA Headquarters and the public
with accurate information about its own activities, which is a disservice to all involved.
As stated at the beginning, this memorandum represents my own professional judgement

and not necessarily the official position of the EPA.
- 43 -
Available on the 9/11 Digital Archive website at:
http://old.911digitalarchive.org/objects/112.pdf
CITATIONS in Congressman Nadler's 4/12/02 White Paper

to Jenkins' reports/memos dated:
11/15/01, 12/19/01, 1/11/02, 3/6/02, and 3/11/02
U.S. Congressman Jerrold Nadler

White Paper
Lower Manhattan Air Quality
Last Updated
April 12, 2002

U.S. CONGRESSMAN JERROLD NADLER
WHITE PAPER
LOWER MANHATTAN AIR QUALITY
Last Updated, April 12, 2002
Executive Summary
• EPA Administrator Christine Todd Whitman misled the public when she announced to New
Yorkers, shortly after the September 11th terrorist attacks, that their “. . .air is safe to breathe”
and that they “. . .need not be concerned about environmental issues as they return to their
homes and workplaces” as the EPA did not have the proper information to make such
assurances.
• The EPA also misled the public about air quality by mischaracterizing its own data and
ignoring or withholding other critical data that contradicted Ms. Whitman’s assurances.
• The EPA allowed the City of New York to handle indoor air quality. The City, in turn,
delegated indoor air matters (testing and remediation) to individual building owners for
indoor public spaces, and to tenants for indoor private spaces. The City provided little
enforcement with respect to indoor public spaces and no enforcement with respect to indoor
private spaces, and gave improper advice regarding hazardous materials testing and
remediation.
• As a result of the EPA’s misleading statements about air quality and because it allowed the
City of New York to handle matters related to indoor environments, there has been
inadequate hazardous materials testing and remediation inside residential and commercial
buildings downtown – putting the public health at risk.
• By allowing indoor air quality in residential and commercial buildings to be handled by the
City of New York, and by not properly exercising its oversight authority pursuant to the
National Contingency Plan (NCP), the EPA violated federal law.
• The EPA’s inaction in New York City downtown residences and commercial buildings
stands in stark contrast to its response in its own building at 290 Broadway, as well as at
other non-Superfund hazardous materials contamination sites around the country.
• The Citizens of Lower Manhattan -- residents, workers and building owners -- have been
victims of a terrorist attack on this nation, and should not bear the burden of making their
homes, offices, and businesses safe again. The EPA must act in accordance with the NCP,
and take action immediately to systematically and properly test and remediate all downtown
buildings affected by the World Trade Center tragedy, using properly trained personnel and
the best-available equipment and methods tied to genuine, established health-based
standards. Seven months after the attacks, it is now clear that the EPA is the only
governmental entity with the authority, resources, expertise and mandate to do this job. This
is the only course of action if the EPA is to restore the public trust and protect the public
health.
1
Christine Todd Whitman’s “Safe” Assurance
EPA Administrator Christine Todd Whitman misled the public when she announced to
New Yorkers, shortly after the September 11th terrorist attacks, that their “. . .air is safe to
breathe,” and that they “. . .need not be concerned about environmental issues as they return to
their homes and workplaces,” as the EPA did not have the proper information to make such
assurances. Ms. Whitman’s "safe" statement was first made in written form on September 18,
20011 (though she had been quoted as early as September 14, 20012), before there was a single
test of indoor air quality conducted by any governmental entity.
In response to criticism on this point, the EPA countered that Ms. Whitman’s statement
was made on the basis of outdoor air tests only. [It should be noted that the EPA had not even
intended to do testing of outdoor air in residential areas until the Ground Zero Elected Officials
Task Force (GZTF) requested that it do so in a memo dated September 21, 2001, in which it also
requested indoor air testing.3] On January 13, 2002, an EPA Region II spokesperson stated,
“That’s [indoor air testing] not our job and we have no policies or procedures for doing that type
of testing.”4 On January 17, EPA Region II issued a statement saying, “. . .EPA has lead [sic]
the effort to monitor the outdoor environment while the city of New York has taken the lead
regarding the reoccupancy of buildings”5 thereby denying any responsibility for indoor air. EPA
Region II Administrator Jane Kenny, took this "outdoor only" defense even further when she
stated to a U.S. Senate panel, ". . .the statement that was made, was basically about walking
around in Lower Manhattan."6 In any case, indoor air quality data did not even exist at the time
of Ms. Whitman’s September 18 statement.
To date there have only been two small rounds of governmentally conducted or
commissioned tests of indoor air quality in Lower Manhattan post 9/11. Neither can be used as
evidence to support the statement that indoor air is “safe.” The first study, commissioned by the
Ground Zero Elected Officials Task Force (GZTF) on September 18, 2001 found elevated levels
of hazardous materials in a number of apartments that had not been cleaned or professionally
1
EPA Press Release, “Whitman Deta ils Ongoing Agency Efforts to M onito r Disa ster Sites, C ontribute to
Cleanup Effort,” September 18th , 2001. Ms Whitman’s full statement is as follows: “We are very encouraged
that the res ults for our mo nitorin g air q uality and drinking water conditions in both New York and near the
Pentagon show that t he public in these areas is not being exposed to e xcessive levels of asbestos or other
harmful substances. Given the scope of the tragedy from last week, I am glad to reassure the people of New
York and Washington, DC, that their air is safe to breath[sic] and their water is safe to drink.” This sentiment
has been echoed repeatedly by EPA spokespeople and other governmental agencies, and, to th is day, has been
used as the definitive government comment on Lower Manhattan air quality post- 9/11. Two days later, Ms.
Whitman added in a press release, “New Yorkers. . need . not be concerned about environmental issues as th ey
return to their homes and workplaces.” (September 21, 2001).
2
Ferraro, Susan, “EPA Chief Says Water, Air are Safe,” New York Daily News, September 14, 2001.
3
Ground Zero Elected Off icials Ta sk Fo rce (C ong ressm an Je rrold Na dler, C hair) “ Mem oran dum #4,”
September 21, 2001.
4
Schneider, Andrew, “NY Officials Underestimate Danger,” St. Louis Post D ispatch, January 13, 2002.
5
EPA Region II Press Release, “EPA Statement,” January 17, 2002.
6
Jane Kenny (EPA Region II Adm inistrator), “Testimony before the United States Senate Subcommittee on
Clean Air, Wetlands, and Climate Change,” February 11, 2002.
2
remediated, and some that had been cleaned or professionally remediated.7 The second study,
conducted by the Agency for Toxic Substances and Disease Registry (ATSDR), at the request of
New York City Department of Health (NYC DOH) in November and December 2001, is still not
completed. According to a NYC DOH press release and a web site to which the release refers,
the agency did find elevated levels of hazardous materials in early results, but the full results of
the tests will not be available until Spring 2002.8
However, even with respect to outdoor air, Ms. Whitman’s statement has been called into
question by a number of respected environmental authorities. In a recent report, Natural
Resources Defense Council (NRDC) described the situation post 9/11, "an unprecedented
environmental assault," (in terms of size and type) in which the "synergistic impacts of multiple
pollutants on human health in the aftermath of an air quality emergency such as the one that
began on the day of the attacks are unknown."9 Ms. Whitman's pronouncements of safety are
obviously incompatible with the reality that the health effects are "unknown."
Ms. Whitman's safety assurance on outdoor air was also countered directly by a
published report by University of California at Davis scientist, Thomas Cahill.10 Dr. Cahill's
team, known as the DELTA group, working in conjunction with the U.S. Department of Energy,
took measurements one mile north of Ground Zero on a 15-story tall building. They found that
the amount of pulverized “ultra-fine particulate matter” emitted from the World Trade Center
(WTC) destruction, was “unprecedented.” And according to the Los Angeles Times, “. . .outdid
even the worst pollution from the Kuwait oil fields fires.”11 These measurements were taken in
early October 2001, at the very same time that the EPA was reiterating that the air was safe.
According to Cahill, the EPA did not test for this level of very fine particulate matter (.25
to .09 microns), only for larger particles with less sensitive equipment. “The EPA could have
identified these particles within a couple of days if they looked for them, but they didn’t.”12 Dr.
Cahill noted in the article that EPA scientists have acknowledged that the ultra-fine particles are
the “most hazardous” because they can evade the body’s protection and lodge deep inside the
7
Ch atfield, E ric J. (Ph .D) and Ko min shy, John R. (M .Sc., C IH, C SP, C HM M), “Su mm ary R epo rt:
Characterization of Particulate Found in Apartments After Destr uction of the World Trade Center,” requested
by the ‘Ground Zero’ Elected Officials Task Force, October 12, 2001.
8
NYC DOH Press Release, “NYC Department ofHealth Presents Findings from Indoor Air Sampling in Lower
Manhattan,” February 8, 2002.
9
Nordgren, Megan D.; Goldstein, Eric A; and Izeman, Mark A (for the Natural Resources Defense Council),
"The Environmental Impacts of the World Trade Center Attacks: A Preli minary Assesment," February 2002.
10
UC Davis News and Information Press Release, “Trade Center Air Held Unpreceden ted Amounts of Very
Fine Particles, Silicon, Sulfates, Metals, Say UC DavidScientists.” February 11, 2002. See als o Lau, Edie and
Bowman, Chr is, “ N.Y. Ai r Hazar ds Fo und: EPA Assurances Contradict ed by UCD Scienti sts,” The
Sacramento Bee, February 12, 2002.
11
Polakovic, Gary, “Danger Found in Trade Center Air”Los Angeles Times, February 12, 2002. Seealso Lau,
Edie and Bowman, Chris, “N.Y. Air Harz ards Found: EPAAssurances Contradicted by UCD Scientists,” The
Sacramento Bee, February 12, 2002.
12
Ibid.
3
lungs.13 An extended commentary by Dr. Cahill on these topics was made at the February 23,
2002 EPA National Ombudsman Hearing in New York City.14
It stands to reason that if there were problems related to outdoor air, problems related to
indoor air would necessarily arise. An EPA Region II Spokesperson acknowledged that very
point when she said recently, “We [the EPA] have from the start been clear that what we found
on the outside was likely to have gotten inside people’s apartments.”15
The EPA Misleads Further
The EPA also misled the public about air quality by mischaracterizing its own data and
ignoring or withholding other critical data that contradicted Ms. Whitman’s assurances of air
safety. Ms. Whitman’s statement, which continues to be echoed repeatedly by agency officials
at every level of government, was made even as EPA officials possessed evidence that
contradicted her statement.
Ms. Whitman’s statement mischaracterizes EPA’s own data. For example, in a January
25, 2002 speech given by Walter Mugdan, EPA Region II Counsel, he states, “. . .a significant
number of the WTC bulk dust samples that we analyzed did have more than 1% asbestos.”16 If a
significant number of those dust samples did have more asbestos than the EPA's own so-called
"clearance level," it stands to reason that the environment is not safe.
Further, in a document detailing information provided by EPA Region II in response to a

Freedom of Information Act (FOIA) request, the New York Environmental Law and Justice
Project cites numerous examples of data points that exceeded EPA “levels of concern.”17 Joel
Kupferman, Executive Director of the New York Environmental Law and Justice Project (in
addition to other experts) has stated repeatedly that these details contradict Ms. Whitman’s
safety assurances.18 A 22-year veteran of the EPA’s Hazardous Waste Identification Division,
Dr. Cate Jenkins, has issued a memo challenging EPA’s testing methods and “clearance levels”
for hazardous materials, which she argues belie an honest assessment of safety. 19
13
Ibid.
14
“Off icial Tr anscript,” EPA National Ombudsm an First Investi gative Heari ng on W orld Trade Center
Hazardous Waste Contamin ation,” February 23, 2002, testimony of Dr. Thom as Cahill, Professor, University
of California at Davis, p. 15-72.
15
Jones, Charisse, “Anxieties Over Toxins Rise at Ground Zero,” U.S.A Today, February 7, 2002.
16
Mugdan, Walter, Regional Counsel U.S. Environmental Protecti on Agency Region 2, “Environmental Law
Issues Raised by Terrorist Events in 20 01,” Janu ary 2 002 , p. 13 .
17
Ne w Y ork En vironm ental L aw and Justice P roject, “W orld Trad e Ce nter In ciden t Env ironme ntal H ealth
Concerns: Information Provided by U.S. Environmental Protection Agency Region II in Response to FOIA
Request Sub mitted by Ne w Y ork En vironm ental L aw and Justice P roject. Wo rk in P rogress.” S ee w ebsite
www.nyenvirolaw.org.
18
Go nzales, Jua n, “A To xic N ightm are at D isaster S ite: Air, W ater, So il C on ta m inated,” New York Da ily
News, October 26, 2001.
19
Je nkins, Cat e, (Ph .D., En vironmental Sc ientist WI B, HWID, Off ice of Sol id Was te, U. S. EPA)
“Memorandum, December 19, 2001.” See also Jenkins, Cate, (Ph.D., Environmental Scientist WIB, HWID,
Office of Solid Waste, U.S. EPA) "Memorandum, Subject: Status of Air and Dust Asbestos Testing After
WTC Collapse, M arch 11, 2 002 ."
4
Other government officials also provided the EPA with data challenging Ms. Whitman’s
safety assurances. For example, the above mentioned GZTF report by Chatfield and Kominsky
was given to EPA officials by the researchers (who are long-time EPA contractors) on October
12, 2001. To this day, the EPA has neither commented on nor taken any action with respect to
the findings of elevated levels of hazardous materials in this report. According to an analysis by
Dr. Cate Jenkins, Chatfield and Kominsky found 9 asbestos strands to every one found by the
EPA. She went on to argue that those levels of asbestos in Lower Manhattan are comparable or
in excess of those found in Libby, Montana, a recently-designated federal Superfund site.20 Some
of the asbestos utilized in the World Trade Center was made in Libby, Montana. A plethora of
news reports have detailed the widespread public health problems experienced by Libby
residents such as lung cancer, asbestosis and mesothelioma.
Beyond downplaying its own findings, and ignoring other contradictory findings
presented to it, the EPA has withheld important data from the public. Specifically, it took a
FOIA 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
its failure to make this information available was an “oversight”21
Additionally, the St. Louis Post Dispatch reported in February that 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. In the article,
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.”22 To be clear, the EPA admits that it had this data, but continued to state that the air was
safe.
In addition to directly withholding information, the EPA has also effectively withheld
critical data by providing disparate documents in response to direct requests made by Congress
and via the FOIA process. For instance, in response to a request for information made by
Congressman Nadler on January 23rd, Ms. Whitman replied that “the City assumed responsibility
20
Jenk ins, C ate, (P h.D., E nvironmental S cientist WI B, HWID, Off ice of Sol id Was te, U. S. EPA)
“Memorandum, Subjec t: Prel iminary Asses sment, Janu ary 11, 2 002 .” See also Je nkin s, Cate , (Ph.D .,
Env ironm ental Scientist WIB, HWID, Office of Solid Waste, U.S. EPA) "Memorandum, Subject: Status of
Air and D ust A sbesto s Testing A fter W TC Collapse, M arch 11, 2 002 ."
21
Haughney, Christine, “In N.Y., Taking a Bre ath of Fear: Illnesses Bring New Doubts AboutToxic Exposure
Near Ground Zero,” Wa shington Post, January 8, 2002.
22
Schneider, Andrew, “Public Was Never Told That Dust from Ruins is Dang erou sly Caustic,” St. Louis P ost
Dispatch, February 10, 2002. Also see asbestos effects noted in U.S.EPA Federal Register, Vol 51, No. 19;
1/29/86; Asbestos Proposed Mining Restrictions and Proposed Manufacturing, Importation and Processing
Prohibitions.
5
for indoor testing and reoccupancy of building.”23 However, in response to the previously
mentioned FOIA request, documents indicated that the EPA did environmental assessments of at
least some residential and commercial buildings (at the request of the Ground Zero Elected
Officials Task Force), and that On-Scene Coordinators were working in lower Manhattan. Other
discrepancies included information regarding the type of testing methods used to analyze dust
samples in a downtown federal building (EPA's own building), and Department of Health
recommendations for residents looking to reoccupy their homes.
Finally, the EPA has refused to participate in its own public accountability process. In
order to further investigate the environmental conditions in New York City post 9/11,
Congressman Nadler hosted two EPA Ombudsman hearings in the Spring of 2002. The Office
of the EPA Ombudsman acts as an EPA watchdog, fielding complaints regarding the work of the
EPA and making appropriate recommendations to the EPA Administrator. In the last four years,
over one dozen National Ombudsman Investigative Hearings have been held, dealing with
complaints regarding the EPA’s handling of hazardous waste and material. As a result of these
previous hearings, the EPA has altered and reversed decisions, and agreed to perform more
detailed environmental testing and remediation.
The situation at the Ombudsman hearings regarding Ground Zero proved to be wildly
different than those of the past. EPA officials failed to attend the Ground Zero meetingsa first
in the history of such hearings. “We’ve had Ombudsman hearings all over the country,” said
Robert Martin, the EPA Ombudsman, “and never before have the government officials who’ve
been involved in the testing and work refused to show up. I think they haven’t shown up because
they’ve got something to hide.”24 In addition, the EPA has not yet responded to requests made
by Robert Martin for information in the form of interrogatories and requests for the production
of documents, thereby further hindering the information-gathering process.
The EPA Passes the Buck to the City
The EPA allowed the City of New York to handle indoor air quality. The City, in turn,
placed the burden for indoor air matters (testing and remediation) on individual building owners
for indoor public spaces, and on tenants for indoor private spaces. The City provided little
enforcement with respect to indoor public spaces, no enforcement with respect to indoor private
spaces, and gave improper advice regarding hazardous materials testing and remediation.
As was previously mentioned, it first became clear to the public in mid-January, 2002
that the EPA had allowed the City of New York to handle indoor air quality.25 An EPA
spokesperson stated, on January 11, that “. . .indoor air is beyond EPA’s jurisdiction.”26 An EPA
23
Letter from Christine Todd Whitman (EPA Adm inistrator) to Congressman Jerrold Nadler (NY-08),
February 22, 2002.
24
Cardwell, Diane, “Hearing Brin gs More Debate over Ground Zero Air Quality ,” New York Times, February
24, 2002.
25
See above Schneider, Andrew, “NY Officials Underestimate Danger” and EPARegion II Press Release “EPA
Statem ent.”
26
Lyman, Fran cesca , “Ye arnin g to B reathe in a Toxic Zone: Four Months on, WTC Attacks Still Haunting
New Y orkers – And Their Health,” MSNBC, January 11, 2002.
6
Region II spokesperson went a step further later in January and stated the EPA had taken no
responsibility for indoor air quality and was, in fact, satisfied by the City’s work. That
spokesperson stated, "The EPA's job was to monitor outdoor air. Monitoring indoors--that
wasn't our job. That's what the city took care of." According to the article, she added "that she
felt the city did a good job of testing and monitoring indoor air."27
However, the City of New York has demonstrated that it has not done the job properly.
At a U.S. Senate Subcommittee field hearing on February 11, 2002, New York City Department
of Environmental Protection (NYC DEP) Commissioner Joel Miele admitted that the DEP was
capable of handling the job when he noted that available hazardous materials staff was ". .
.adequate except [emphasis added] in the case of a catastrophic event such as occurred here" and
the agency is primarily a “water and sewer agency.”28
Commissioner Miele went on to say that although the City had taken the lead on indoor
air, it actually placed the burden for testing and remediating indoor common spaces on the
landlords and property owners.29 The City has made very little effort to ensure that such testing
or remediation actually took place, other than issuing one “public notice” on the subject.30 The
issue of DEP enforcement of building owner's responsibility for common areas caused a great
deal of stir at the Senate Subcommittee hearing when Comissioner Miele first stated on the
record that his agency had enforced the law, and then, after being heckled, admitted that it had
not:
Senator [Joseph] Lieberman: You're saying that every building was tested, e very
building had its indoor air tested before people were allowed to go back in?
Dr. Miele: T hat's the ci ty regulation. That's correct. sir. [Interruption from
audience.]
[Senator Lieberman questioned another witness for a moment.]
Senator [Hillary Rodham] Clinton: . . .we had some vocal audience member who
responded when you said that's city regulation. Can you sit there today and tell us
that every landlord and every building complied with the city regulations?
Dr. Miele: No, I can't tell you that. But the reason for the that, in large measure ,
has been the fact that we've let people back into buildings, that is to cl ean up the
buildings, and then when we're comfortable that they've got the tes ts, let peo ple
back in. One of the things we did to try and facilitate it was to let people get back
in when we were comfortable that they ha d cleaned up the buildings but before
27
Rogers, Josh, "Nadler says EPA is Passing the Buck Downtown," Downtown Express, January 22, 2001.
28
Miele, Joel (Commissioner, NYC DEP) “Testimony before the United States Senate Subcommittee on Clean
Air, W etland s, and Clim ate Chan ge,” F ebru ary 1 1, 20 02.
29
Ibid.
30
NYC DEP, “Notice to Building Owners Located South of 14 th Street, Manhattan,” September 16, 2001.
7
they had submitted the formal permit application to u s and got ten the pe rmits
from us.31
A September 22, 2002 DOH press release confirms that while the City required that
buildings be certified for issues such as "structural stability," no such certification was required
for environmental safety.32 The only record of any enforcement of common space testing and
remediation seen to date is a letter sent by DEP to building owners the day after the Senate
hearing, requesting documentation of cleanup measures taken.33 Moreover, that letter informed
the landlords and property owners that they are only responsible for common or public areas of
buildings.34 And, according to some experts, the type of testing that DEP instructed building
owners and managers to use would not properly detect the hazardous materials.35
Testing and remediating of actual apartments and private workspaces has been left up to
individual tenants.36 There has been no enforcement whatsoever of any rules or regulation with
respect to testing or cleaning indoor private spaces.37
As the City placed the burden for testing and remediating indoor private spaces on
individual tenants, it referred individuals for advice (though no other assistance) to the New
York City Department of Health (NYC DOH) for recommendations on re-occupying homes and
businesses.38 The EPA, on its website and in public press releases, also referred residents to
these recommendations39, which state that “based on the asbestos test results received thus far,
there are no significant health risks” and advises people to remove dust using a “wet rag or wet
31
Miele, Joel (Commissioner, NYC DEP) “Testimony before the UnitedStates Senate Subcommittee on Clean
Air, Wetlands, and Climate Change,” February 11, 2002.
32
Ne w Y ork City D epartment o f He alth Pr ess Re lease, "N YC He alth D epartment D istrubu tes H ealth
Recommendations for Residntial and Commercial Reoccupation," September 22, 2001.
33
Letter from R. Ra dhakrishman (P.E., Director of NYC DEP’s Asbest os Control Program) to Building
Ow ners, F ebru ary 1 2, 20 02.
34
Ibid. Also, see AHERA 40 CFR 763 Ap pen dix C to subpart E Asbestos Model Accreditation Plan. Under
the regulations, p ublic and com me rcial bu ilding is defined as:
the interior space of any building which is not a school building. . ..The term includes, but is not limited to:
industrial and office buildings, residential apartment buildings and condom inium s of 10 or more dwelling units,
government owned buildings, colleges, museum s, airports, hospitals, churches, preschools, stores, warehouses
and factories. In terior space includes exterior hallways connecting buildings, porticos and mechanical systems
used to condition interior space.
35
Jenki ns, C ate, ( Ph.D., Envi ronmental S cientist WI B, HWID, Off ice of Sol id Was te, U. S. EPA)
“Mem orandum, December 19, 2001” See also Jenkins, Cate, (Ph.D., Environmental Scientist WIB, HWID,
Office of Soli d Waste, U.S . EPA) "Mem oran dum , Subject: Sta tus of Air and Dust Asbestos Testing After WTC
Collapse, M arch 11, 2 002 ."
36
Berger, Elizabeth (resident), “Testimony b efore t he Un ited States Senate Subco mm ittee on Clean Air,
Wetlands, and Climate Change,” February 11, 2002.
37
Miele, Joel (Commissioner, NYC DEP) “Testimony before the United St ates Senate Subcommittee on Clean
Air, Wetlands, and Cli mate Change,” February 11, 2002. Remark made dur ing the question and answer period.
38
Letter from Joel Miele to Residents of Lower Manhattan, October 25, 2001.
39
EPA Region II Press Release, “EPA and OSHA Web Sites Provide Environmental Monitoring Data From
World T rade Center And Surrounding Areas: Data Confirms No Significant Public Health Risks; Rescue
Crews and Nearby Residents Should Take Appropriate Precautions,” October 3, 2001.
8
mop.”40 EPA Region II Acting Deputy Regional Administrator Kathleen Callahan reiterated that
downtown tenants should look to the DOH guidelines for cleaning their indoor spaces in
testimony before the New York City Council on December 11, 2001.41
This advice, which details unsafe and illegal cleaning methods,42 directly contradicts a
letter from John Henshaw, Assistant Secretary for OSHA, which states, “in that the materials
containing asbestos were used in the construction of the Twin Towers, the settled dust from their
collapse must be presumed to contain asbestos” and therefore, OSHA federal regulations apply
to the remediation of this material (emphasis added).43 The DOH advice ironically also
contradicts a statement of dubious veracity from an EPA Region II Spokesperson who said in a
February 2002 U.S.A Today article, “We have from the start been clear. . .they [those in Lower
Manhattan] could assume that the material is asbestos-containing and that they needed to get that
material cleaned up using professional contractors.”44 If, in fact, the dust is presumed to be
“asbestos containing material,” its handling and removal is regulated under strict federal
guidelines.45
Despite these facts, EPA Administrator Christine Todd Whitman defended her agency’s
actions of directing people to the City DOH’s unsafe guidelines. In a February 22, 2002 letter to
Congressman Jerrold Nadler (NY-08), Whitman wrote “In regard to your concern that the EPA
guided residents to the New York City Health Department for direction on cleanup of homes,
this was appropriate since traditionally, the health agencies make recommendations to the public
on health-related matters.”46
As was previously mentioned, the City did request an extremely limited indoor testing
program be done by ATSDR. However, details about this program are still not known. In
October, November, and December, 30 New York City apartment were tested for hazardous
40
“Reco mm endations f or Peo ple R e-O ccupyin g C om me rcial B uildings an d R esidents R e-Enterin g T heir
Hom es,” (www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html), printed on January 24th, 2002 3:42pm.
41
Callahan, Kathleen (Acting Deputy Regional Administrator, EPA Region II), “Testimony before the New
York City Council Environmental Protection Committee,” December 11, 2001.
42
Jenkins, Cate (Ph.D., Environmental Scientist, Waste Identification Branch, HWID, Office of Solid Waste,
U.S. EPA), “Memorandum : World Trade Center Asbestos” to Lillian Bagus and Robert Dellinger, Hazardous
Waste Iden tification Bran ch, D ecem ber 3 , 200 1 an d Jen kins, C ate (Ph .D., E nvironm ental Scien tist, Wa ste
Identification Branch, HWID, Office of Solid Waste, U.S. EPA), “Memorandum to Arts, Crafts and Theater
Safety in NYC: EPA National Standards vs. New York City Guidelines,” November 15, 2001.
43
Henshaw, John, Assistant Secretary for OSHA, Letter to Mr. Lowell Peterson, January 31, 2002.
44
Jones, Charisse, “Anxieties Over Toxins Rise at Ground Zero,” U.S.A Today, February 7, 2002.
45
Odesey Capital Group III, L.P. d/b/a Cascade Apartments v. OSHA Review Commission and Secretary of
Labor Bo 01-1030, 12/2001 U.S. App, Lexis 27797; where the OSHA Commission ruled that “an owner who
fails to use specified testing methods to identify the presence of ACM fails to rebut the presumption that ACM
is present in the buil ding.” And Unite d State v. Weintraub Nos. 99-1 691 (L) 00-1 368, 00-1385, 2001 U.S. App,
Lex is 24921 (2d Cir Nov 19, 2001) A j ury found de fendants guilty of criminal violations of the asbestos
NESHA PS and EPA regulations for improper handling and removal of ACM and failure to noti fy the EPA and
state agencies.
46
Letter from Christine Todd Whitman (EPA Administrator) to Congressman Jerrold Nadler (NY-08), February
22, 2002.
9
materials, though the nature of those tests are unclear, and the full results will not be available
until Spring 2002.47
Result of EPA Misdeeds: Inadequate Indoor Hazardous Materials Remediation and a

Threat to Public Health
As a result of the EPA’s misleading statements about air quality and because it allowed
the City of New York to handle matters related to indoor environments with no oversight, there
has been inadequate hazardous materials testing and remediation inside residential and
commercial buildings in Lower Manhattan – putting the public health at risk.
A significant number of downtown buildings simply have not been tested or remediated
for hazardous materials properly, or at all, in public and/or private areas.48 Congressman Jerrold
Nadler’s District Office receives calls nearly every day from constituents reporting this fact, and
it has been well documented in the press.49
Repeated assurances of air quality “safety” have resulted in vast numbers of downtown
residential and commerial indoor spaces being cleaned as if the dust did not contain hazardous
materials, despite the fact that official documents note that the law requires a contrary
presumption. Hearing such assurances stopped many residents and employers, or building
owners or managers, from looking for special cleaning or remediation procedures. This problem
was compounded by the fact that about 40% of downtown residents reported receiving
absolutely no instructions or protocols for cleanup or hazardous materials remediation.50 They
simply went about doing a “normal” house or office or building cleaning for their indoor
spaces.51
As Andrew Mark, a resident of Pine St. in downtown Manhattan, testified at an EPA

Ombudsman hearing, “Never did I receive anything from the EPA that said, 'Gee, just to play it
safe, why don’t you take the following precautions.' Nothing, nothing. We were never told, A)
to leave the area, B) take any precautions whatsoever in terms of minimizing the potential
impact.” Mr. Mark went on to testify that as he wasn’t aware that the dust could contain
hazardous materials, he had his regular cleaning ladyclearly not a trained professional in
hazardous material removalclean the dust from his apartment. 52 Clearly, such spaces cannot
be considered properly remediated or safe.
However, even where building owners, managers and tenants understood that this
situation wasn’t “business as usual,” there were still many problems.
47
New York City Department of Health Press Release, “NY C Department of Health Presents Findings From
Indoor Air Samplings in Lower Manhattan,” February 8, 2002.
48
“Of ficial Tra nscript,” EPA Nat ional Ombuds man Fi rst I nvestigative Hea ring on Worl d Tr ade Cent er
Hazardous Waste Contamin ation,” February 23, 2002 . See specifically testimony from dow ntow n residents
and busin ess ow ners.
49
Statement taken from Constitu ent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08)
50
"A Community Needs Assessment of Lower Manhatta n Following the World Trade Center Attack," Centers
for Disease Control and Prevention, New York City Department of Health, December 2001.
51
Ibid.
52
EP A N ational Om bud sman S econd I nve stigative He aring on W orld Trad e Ce nter H azard ous W aste
Contam ination ,” Feb ruary 23 , 200 2. Testimony of A ndrew Mark, residen t, p. 436-438.
10
With respect to indoor common spaces, where building owners and managers were made
responsible for testing and remediation, there have been mixed results. While some building
owners and managers have dutifully attempted to clean the common areas, many have failed to
do the job (or do the job appropriately). Presumably, this is because such a job was beyond
their financial or other capacity to do so, and the City's lax enforcement made it easy to avoid
getting caught when they did shirk the responsibility .
Irresponsible or unscrupulous building owners and managers have no doubt found it quite
easy to skirt the NYC DEP’s scant enforcement measures – either by remediating improperly or
not taking any action with respect to testing or remediation.53 Even as tenants in these buildings
have found extremely high levels of hazardous materials in common spaces through their private
hiring of professional contractors, their numerous calls to the NYC DEP “helpline” to report
building owners’ inaction has produced little, if any, governmental response.54 In fact, most
tenants have repeatedly expressed extreme frustration when describing their attempts to access
help from DEP.55
A particularly problematic issue is the fact that there is an inherent conflict of interest for
building owners to actually do testing, which is expensive, because it might result in them
having to hire a professional hazardous materials contractor to do proper remediation, which is
even more expensive. Tenants have been forced to go on rent strikes to compel their building
owner to test and remediate properly,56 and at least one building (80 John Street) has already
gone to court.57 In the case of 50 Battery Place, the landlord (DeMatteis Battery Park
Associates, LLC) gave a considerably larger rent reduction to those tenants who didn't go on a
rent strike than those who chose to settle the case. Needless to say, those tenants who stayed in
the suit to pursue proper testing and remediation were given no rent reduction at all.58
In a related problem, building owners may use testing methods that are either incapable
of finding the type of hazardous materials emitted from the World Trade Center (see above-
mentioned reference to problematic DEP-recommended testing approaches), or, if one takes a
more cynical view, specifically designed to find nothing dangerous that would require expensive
remediation. For example, in the case of Tribeca Tower (105 Duane Street), building
management argued that by doing “200 ambient air tests” it had acted “extremely responsive[ly],
despite the fact that tenants (supported by private contractors and an EPA scientist) have argued
53
Lyman, Francesca, “Yearning to Breathe in a Toxic Zone: Four Months on, WTC Attacks Still Haunting
New Y orkers – And Their Health,” MSNBC, January 11, 2002.
See specifically comments by Mr. Steve Swaney.
54
“Official Transcript,” EPA N ational Omb udsm an Firs t Inve stigative Heari ng on W orld Trade Center
Hazardous Waste Contamination,” February 23, 2002 . See for examp le testimony of Ms. Dawn Pryor, resident,
p. 183-196 and Ms. Mary Perillo, resident, p. 197-228.
55
“Offi cial Transc ript,” EPA Nati onal Ombudsman Fir st Investigative Hear ing on Wor ld Tra de Center
Hazardous Waste Contam ination ,” February 23, 2002. See specifically testimony from dow ntow n residents
and busin ess ow ners.
56
Drenger, Ronald, “Tenant-Landlord Battles Heat Up Downtown,” Tribeca Trib, January 4, 2002.
57
Rayman, Graham, “Tenants vs. Land lord In WTC Cleanup Case,” New sday (Queens Edition), September
15, 2001.
58
Press Release, "Silver, Nadler Denounce 'Shameful' Landlord in Rent Dispute," April 5, 2002.
11
that hazardous materials in settled dust won’t show up in air [passive] tests, and that only
sensitive dust sampling or aggressive air sampling would yield useful information.59
With no guidance other than the lenient DOH guidelines, individual residential
tenants were left to their own uninformed devices when deciding how to deal with the WTC dust
in their apartments.60 One resident described the chaos that reigned:
We reluctantly made our own rules, divined from press reports, high school
science as we remembered it and the advice of friends and neighbors. But even
that was mixed. One scientist friend had his apartment tested and declared it safe
for his family; the managing agent of his building, however, reported high levels
of asbestos and lead. In the end, 248 stuffed animals, 8 handmade baby quilts, 5
mattresses, a trousseau’s worth of sheets and towels, a kitchenful of food and 13
leaf-and-lawn bags of toys went into our trash, but not our books, draperies and
upholstered furniture or our clothes, though the bill to dry clean them industrially
was $16,500 . . .. We washed the walls, but didn’t repaint. Some people we know
repainted, but kept their mattresses. Some people kept their stuffed animals but
threw away their furniture. Some people kept what they couldn’t bear to lose and
got rid of the rest. We have still not decided what to do about our floors: will
stripping, sanding and resealing them contain the toxic mix of asbestos,
fiberglass, concrete, human remains, heavy metals and the vague “particulates,”
or just release more of it into our indoor air?61
As the responsibility for indoor private spaces has been left to individual residential and
commercial tenants, so too have been the associated costs. It has been estimated that a
professional remediation for hazardous materials in an average apartment in Lower Manhattan
would cost $10,000 to $30,000, and that does not include the cost of testing.62 Covering the cost
of testing and remediation in indoor private spaces would necessarily come from one of three
sources: the tenant’s own pocket, private insurance (if available), or a government or relief
agency.
An expense of $10,000 to $20,000 is terribly burdensome, if not prohibitive, for

individual tenants (and particularly residents) if it must come out of their own pockets.
Therefore, where no other funds were available for proper testing or remediation, tenants either
did not remediate or did not remediate properly.63 In some cases, residents who had nowhere
else to turn financially, accepted help from volunteer college students and members of the
59
Drenger, Ronald, “At Tribeca Tower, Tenants Press Health Concerns,” Tribeca Trib, January 4, 2002.
60
Johnson, Kirk, “With Uncertainty Filling the Air,9/11 Health Risk s Are Debated,”New York Times, February
8, 2002.
61
Berger, Elizabeth (resident), “Testi mon y before the Un ited States Senate Subco mm ittee on Clean Air,
62
EP A N ational Om bud sman F irst Inv estigativ e H earing on W orld Trade Ce nter H azard ous W aste
Contam ination ,” February 23, 2002. Testi mony of Jeff Micheli and David Harvey, Tradewinds Environm ental,
p. 105-106.
63
Statement taken from Constituent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08)
and “Official Tr anscript,” EPA National Ombudsm an First Investigative Hearing on W orld Trade Center
Hazardous Waste Conta mination,” February 21, 2002. Seefor example testimony from Dawn Pryor, resident,
p. 183-196.
12
Southern Baptist Convention.64 These untrained volunteers came into downtown apartments and
cleaned, using methods as or less safe than the dangerous NYC DOH guidelines, and did so
without proper protective gear.65 To the extent that untrained tenants or relief workers have
cleaned indoor spaces based on the NYC DOH guidelines or no guidelines at all, those spaces
cannot be considered adequately remediated or safe.
According to tenants who do possess private insurance, insurance carriers have

haphazardly settled claims with widely varying amounts paid.66 In many cases, the amounts
have been woefully inadequate.67 Claims have been denied for a variety of reasons. One reason,
described by a tenant in the Washington Post, describes a horrendous, vicious circle. Mr.
George Tabb, a Tribeca resident, reported that his “. . .insurance company won’t pay to clean his
apartment of dust and asbestos until his landlord cleans up the building’s ventilation system.
Management started a cleanup last month, but not an asbestos abatement.”68
Even more disturbing is the fact that some insurance companies have denied claims (for
rental assistance, air purifiers, and hazardous materials testing and remediation) to both tenants
and building owners on the sole basis of EPA’s safety assurances.69 Individual tenants have also
reported that relief agencies, including the Red Cross, and the Federal Emergency Management
Agency (FEMA) have also denied assistance for rental assistance and proper testing and
remediation of common and private spaces on the basis of Ms. Whitman’s statement.70
FEMA, in its “case-by-case” approach, has provided some assistance to individual

residents for “cleaning,” though many individuals have reported having their application denied
or have received very few funds.71 Moreover, FEMA announced in one of its own bulletins, that
residents could be eligible for such funds, but only if the individual is willing to forgo rental
assistance:
64
Cowan, Alis on Leigh, “Doing Good Deeds, an d Windows,” New York Times, December 4,2001 and Conley,
Chris, “Dade Sends Help to New York City,” Dade Cou nty Sentinel, October 31, 2001.
65
Missouri Baptis ts Press Rele ase, “Missouri Disaster Relief Works Assist in New York Cleanup,” November
20, 200. Website address: www. Mobaptist.org/releases/2001/nycleanup.htm. (Note particularly pictures of
workers w ithout proper protective gear).
66
Statement taken from Constitu ent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08)
and “O fficial T ransc ript,” E PA Na tional Om bud sman F irst Investigative Hearing on W orld Trade Center
Hazardous Waste Contamin ation,” February 23, 2002. See specifically testimo ny from dow ntow n residents
and business ow ners.
67
Statement taken from Constituent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08)
and “Official Transcript,” EPA National Om budsman F irst Investigative Hearing on W orld Trade Center
Hazardous Waste Contamination,” February 23, 2002. See specifically testimony from dow ntow n residents
and business ow ners.
68
Haughney, Christine, “In N.Y., Taking a Breath of Fear: IllnessesBring New Doubts About Toxic Exposure
Near Ground Zero,” Wa shington Post, January 8, 2002.
69
“O fficial T ransc ript,” E PA Na tional Om bud sman F irst Inv estigativ e H earing on W orld Trade C enter
Hazardous Waste Conta mination,” February 23, 2002. Forexamples see te stimony of Ms. Cath erine Hughes,
resident, p. 317-318; testimo ny of Mr. Coope r, p. 681-682; testimo ny of Mr. George Tabb, resident, p. 151-152.
70
“Offi cial Transc ript,” EPA Nati onal Ombudsman Fir st Investigative Hear ing o n World Trade Center
Hazardous Waste Contamination,” February 23, 2002. For examples see testim ony of Fo rmer City Counc il
Wom an Kathryn Fre ed, p. 243-244;and testimony of Ms. Elona Kl auppe [sic] (Ilona Kloupte), resident,p. 658-
659; and testimony of Dawn Pryor, resident, p. 183-196.
71
Statement taken from Constituent Services Staff Mem bers, Office of Congressm an Jerrold Nadler (NY-08).
13
If you we re a ffected by the World Trade Center a ttack and receive rental
assistance from the Federal Emergency Manageme nt Agency (FEMA), you may
use the funds to clean your residence. ‘ We’re giving people the option to decide
what makes most sense for them – either cleaning their dwelling s or finding
someplace else to live,’ said Michael Cosbar, FEMA housing officer. Instead of
using the chec k to rent a nother pl ace, renter s can use the funds to clean their
residences. However, if you use the funds for cleaning, you will be ineligible for
more FEMA rental assistance because you will be able to move bac k into yo ur
home.72
Unfortunately, for those lower income individual s wh ose apar tments ar e highly
contaminated (and t herefore are neither ha bitable nor able to be remediated with the meager
funds provi ded), thi s situation present s an unten able dile mma. FEMA r ental as sistance is
quickly running out for these individuals and therefore, their temporary residences are no longer
going to be available to them. The worst case result: either homelessness or forced habitation of
residences known to be a direct health threat.
Commercial tenants, particularly smaller businesses, have had similar problems to those
of the residential tenants (large financial services firms were necessarily in better shape -- they
had the means to clean their own spaces and the leverage to get building owners to clean the
common areas). Small commercial tenants were given the same, inadequate cleaning protocols,
have lacked sufficient funds (most have received only loans, not direct grant assistance), and
have had insurance claims denied due to Ms. Whitman's safety assurances. They also had the
same trouble getting their building owners and managers to clean common spaces. But
moreover, inaction on the part of less scrupulous employers or business owners have left
individual employees at these firms with nowhere to turn if their employer chose not to test and
remediate properly or at all. Congressman Nadler's office has received numerous calls from
employees of both private and public entities who are concerned about the indoor air in their
workplace, but fear job loss if they "make too many waves."73
Each of the problems noted above (and there are undoubtedly plenty of others) has
contributed to the fact that there has been utterly uneven, if not totally inadequate, testing and
remediation of hazardous materials in buildings in Lower Manhattan. This fact, in and of itself,
presents the most troubling issue: even when public spaces or single apartments or offices are
remediated appropriately, ventilation systems can move hazardous materials from unremediated
spaces to those already remediated.74 As one downtown resident put it, “Indoor air quality is a
touchy issue in our building. Converted in the late 1970’s, we have a primitive central air system
that circulates air from apartment to apartment. Some people in our building hired professional
cleaners. Others did it themselves.”75 Therefore, tenants who may believe they are living or
working in a “safe” environment because they have paid considerably for proper remediation,
may well be living in recontaminated areas.
72
FEMA, “Disaster Assistance Guide: United We Stand,” New York, November 2, 2001, FEMA Issue 2.
73
Statement taken from Constituent Services Staff Members, Office of Congressman Jerrold Nadler (NY-08).
74
Letter from R. R adh akrish ma n (P.E ., Direc tor of NY C D EP’s As besto s Co ntrol Program ) to Building
Ow ners, F ebru ary 1 2, 20 02.
75
Ber ger, Elizabeth (resident), “Testimony before the United States Senate Subco mm ittee on Clean Air,
14
It goes without saying that hazardous materials emitted from the World Trade Center that
remain inside buildings in Lower Manhattan pose a potentially serious public health threat to
residents, workers and visitors. This threat has been detailed in various government hearings
and numerous press accounts by a wide array of pre-eminent public health experts.
The EPA’s Actions Violate Federal Law
By allowing indoor air quality in residential and commercial buildings to be handled by

the City of New York, and by not properly exercising its oversight authority, the EPA violated
federal law. The EPA has the clear authority to respond to the release of hazardous substances
that may present an imminent and substantial danger to public health.76 The National
Contingency Plan (NCP), which is administered by the EPA and authorized by the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), is the
federal plan for responding to such a release.77 The NCP lays out specific procedures and
guidelines, including the designation of an On-Scene Coordinator (OSC) who is responsible for
directing response efforts and coordinating all other efforts at the scene of a discharge or
release.78 The federal regulations make clear that the EPA has the authority to respond to the
release of hazardous substances pursuant to the NCP, and that this authority is carried out by
EPA On-Scene Coordinators.
When asked why the City has taken the lead on indoor air, and how that decision was
made, the EPA has stated that mission assignments were made by FEMA.79 The EPA claims
that it is operating at the World Trade Center site under the Federal Response Plan (FRP), the
FEMA plan which establishes a process for coordinating federal assistance pursuant to the
Stafford Act.80 EPA claims that, under the FRP, local governments have primary responsibility
for responding to an event.81
However, EPA’s statement that it is merely following FEMA and the Federal Response
Plan, and its characterization of this plan, is misleading for a number of reasons. First, the
Stafford Act does not supercede the EPA statutes.82 All activities under FEMA must comply
76
42 U.S.C 9604 . The President is authorized to act: 1) When ever (A) any hazardous substan ce is released or
there is a substantia l threat of such a release nto
i the environment, or (B) there is a release or substantial threat
of release into th e environment of any pollut ant or contaminant which may present an imminent and substant ial
danger to the publi c healt h or welfare, the Pres ident i s authori zed to act , co nsistent with t he national
contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such
hazardous substance, pollutant, or contam inant at any time… or take any other response measure consisten t with
the national contingency plan which the President deems necessary to protect the public health or welfare or
the env ironme nt. Th is auth ority is a lso cited in 40 CFR 300 .130 (c). T his au thority is deleg ated to the EPA
Administrator pursuant to Executive Order 12580, later amended by Executive Order 12777.
77
CERCLA is codified in Chapter 103 of Title 42 U.S.C. The NCP is authorized in 42 U.S.C 9604; 40 CFR
300.
78
40 CFR 300.135 (a)
79
Whitman, Christine Todd, Letter to Congressman Jerrold Nadler, transmitted via fax February 22, 2002.
80
42 U .S.C 5 121 , et seq. T he Stafford A ct is the statu te under w hich FEMA o perates.
81
Whitman, Christine Todd, Letter to Congressman Jerrold Nadler, transmitted via fax February 22, 2002.
82
44 CFR 206.5 (f)
15
with national environmental policies.83 The Federal Response Plan also clearly states that other
federal emergency response plans cannot be disregarded, but rather implemented concurrently
when there is an incident involving hazardous substances.84 The FRP specifically lists the NCP
as one such emergency response plan.85 Second, and most importantly, the FRP actually
triggers the National Contingency Plan.86 According to the Code of Federal Regulations, “the
NCP applies to and is in effect when the Federal Response Plan and some or all its Emergency
Support Functions (ESFs) are activated.”87 Therefore, if the EPA is not acting pursuant to the
National Contingency Plan, it is in clear violation of the law.
Third, even if, for the sake of argument, the Federal Response Plan is the only plan in
effect (which is clearly not the case), federal assistance is coordinated along thirteen Emergency
Support Functions. The EPA is the primary agency responsible for coordinating Emergency
Support Function #10: Hazardous Materials.88 As the primary agency, the EPA has “operational
responsibility” for orchestrating federal agency support and managing mission assignments in
this area.89 The EPA has no legal basis to shirk its responsibility in this regard. In fact, EPA
Region II Administrator, Jane Kenny, testified before the U.S. Senate that “Acting on FEMA’s
mission assignments, EPA is the lead agency for hazardous waste disposal.”90 Yet, the EPA
claims it has no responsibility to remediate inside homes and businesses. Why does the EPA
have the authority to dispose of hazardous waste, but not hazardous waste that made its way
inside buildings? Under this logic, if a steel beam from the World Trade Center coated with
asbestos and other hazardous materials fell on top of someone’s house, the EPA would be
required to remove it. However, if that same steel beam, and the hazardous materials coating it,
are pulverized into little pieces and blasted into peoples’ homes, the EPA no longer has
jurisdiction. The EPA has yet to provide a statute or regulation that supports this logic.
The EPA might say, as it has in the past, that it does not have the proper legal authority to
test and remediate all areas affected by the collapse of the World Trade Center because the Clean
Air Act does not govern indoor air. This is, again, utterly misleading. Section 303 of the Clean
Air Act gives the EPA authority to protect human health when there is an “imminent and
substantial endangerment” presented by a source of pollution.91 The intent of Congress is clear
in this regard. A 1970 Senate Report 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
83
44 C FR 10.4
84
Federal Response Plan: Basic Plan, April 1999, p. 11. (http://www.fema.gov/r-n-r/frp/frpbpln.htm)
85
Ibid.
86
40 CFR 300.3 (d)
87
Ibid.
88
Federal Response Plan: Basic Plan, April 1999, p. 14. (http://ww w.fem a.gov/r-n-r/frp/frpbp ln.htm). Also
cited at 40 CFR 300.130 (i).
89
Ibid., p . 28.
90
“Official Transcript” U .S. Senate Com mittee on Environm ent and Public W orks, Subcomm ittee on Clean
Air, Wetlands, and Climate Chan ge, New York, NY. Testimony of Jane M. Kenny, Regional Administrator,
U.S. EPA Region II, February 11, 2002, p. 64.
91
42 U.S.C 7603
16
imminent – an emergency action plan should be implemented.”92 In short, the EPA should not
wait for people to get sick before it acts, and it clearly has the authority to act under this law. 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.93
Although the Clean Air Act is primarily intended to address source pollution, Section 303
illustrates that EPA has authority under several statutes to respond to the release of hazardous
materials that pose a threat to human health. Also, 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, and
this authority is not drawn into question by the Clean Air Act.
As administrator of the NCP, the EPA has the responsibility through OSCs to direct
response efforts and coordinate all other efforts at the scene of a release.94 These response
efforts include indoor air and environments. The NCP mandates that the OSC, among other
things, collect pertinent facts about the release, the nature, amount and location of released
materials, the pathways to human exposure, and the potential impact on human health and the
environment.95 There is no delineation between indoor and outdoor air, particularly where there
is a threat to public health. In fact, under the NCP, the EPA is authorized to “enter any vessel,
facility, establishment or other place, property, or location…and conduct, complete, operate, and
maintain any response actions authorized by CERCLA or these regulations.”96 In other words, a
response under the NCP is not limited to outdoor air, and the EPA has specific authority to
remediate indoor environments.
Lastly, and most importantly, the counter terrorism policies of the United States dictate
that the NCP applies specifically to acts of terrorism. Just weeks before September 11th, 2001
OMB sent its Annual Report to Congress on Combating Terrorism, which outlines each federal
agency’s primary role and activities in responding to such an event. According to the OMB,
“EPA’s first responders (On-Scene Coordinators or OSCs) from all 10 regions have been
actively involved with local, State, and Federal authorities in responding to threats of terrorism.
EPA’s response to such threats is an extension of its existing hazardous materials response
capability developed over more than 30 years as leader of the National Response System.”97 The
National Contingency Plan is the framework for the National Response System and establishes
how it works.98 Thus, according to OMB, EPA’s response to an act of terrorism is carried out by
On-Scene Coordinators under the NCP.99
EPA’s responsibilities in this regard are further supported by Presidential Decision

Directive 62, which reiterates that the EPA is the lead agency for responding to the release of
92
S. Rep. No. 91-1196, 91st Cong., 2 n d Sess. 36 (1970). Cited in EPA Memorandum: Guidance on the Use of
Section 303 of the Clean Air Act, Edward E. Reich and Michael S. Alushin, September 15, 1983.
93
EPA Memorandum: Guidance on he t Use of Section 303 of the Clean AirAct, Edward E. Reich and Michael
S. Alushin, September 15, 1983.
94
40 CFR 300.135(a)
95
40 CFR 300.135(c)
96
40 CFR 300.400(d)
97
U.S. Office of Management and Budge t. Ann ual Re port to Co ngress on Co mbating Te rrorism. Washington,
2001. 108 p.
98
U.S. EPA National Resp onse System (http://w ww .epa.g ov/o errpage/supe rfun d/program s/er/nrs/)
99
“EPA Anti-Terrorist Role Falls Primarily On Superfund Officials,” Inside EPA, September 19, 2001.
17
hazardous materials in a terrorist attack, and that the EPA has the specific responsibility to
remediate inside buildings. On November 28, 2001, Administrator Christine Todd Whitman
outlined the EPA’s role in counter terrorism activities before the Senate Appropriations
Subcommittee on VA, HUD, and Independent Agencies. Administrator Whitman testified that
“Under the provisions of PDD 62, 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 responsibility draws on our decades of
experience in cleaning up sites contaminated by toxins through prior practices or accidents.”
(emphasis added).100 Administrator Whitman went on to say that “This role is a natural fit for
EPA’s on-scene coordinators, managers who are experienced in assessing contamination in
structures,” and who “have considerable experience at sorting out hazards, quantifying risks,
planning and implementing emergency cleanups, and coordinating among other agencies, state
and local government, and the private sector.”101
This testimony was given to Congress over two months after the September 11th terrorist
attacks, at the same time EPA told elected officials and citizens that New York City had
responsibility for indoor environments in Lower Manhattan. In fact, just two months ago,
Administrator Whitman wrote “I believe that Congress and the Administration need to revisit the
issue of authority and responsibility for indoor environmental conditions in the wake of a
terrorist attack. While the current practice is to vest responsibility in local and state government
for indoor environmental conditions, perhaps this approach is not appropriate in the wake of an
event like September 11th.”102 This statement does not seem to comport with EPA’s
responsibilities under the National Contingency Plan, the OMB Annual Report to Congress, or
PDD 62, as outlined by Administrator Whitman in testimony before Congress.
While it is not clear what discretion EPA has to delegate response efforts under PDD 62,
the EPA may delegate response efforts under the NCP. However, the EPA retains oversight of
all response actions, and all such decisions must be made through the organizational structure of
the NCP.103 Therefore, any actions taken by any agency in response to the release of hazardous
substances produced by the collapse of the World Trade Center fall under EPA oversight. If the
City takes the lead on indoor air, the EPA is not relieved of its responsibility in this regard. In
fact, according to EPA’s own website, “The procedure for determining the lead agency is clearly
defined so there is no confusion about who is in charge during a response. The OSC determines
the status of the local response and monitors the situation to determine whether, or how much,
federal involvement is necessary. It is the OSC’s job to ensure that the cleanup, whether
accomplished by industry, local, state, or federal officials, is appropriate, timely, and minimizes
human and environmental damage.”104
Clearly, EPA should be operating in New York City pursuant to the National
Contingency Plan and PDD 62, and those authorities must be carried out by On-Scene
100
Whitman, Chri stine Todd. Testi mony before the U.S. Senate Appropriations Committee, Subcommittee on
VA, HUD, and Independent Agencies, November 28, 2001.
101
Ibid.
102
Whitman, Christine Todd. Letter to Congressman Jerrold Nadler transmitted via fax February 22, 2002.
103
40 CFR 300
104
U.S. EPA National Resp onse System : How the System Works,
ww w.epa.gov/o errpage/supe rfun d/program s/er/nrs/nrsw orks.htm
18
Coordinators. In evidence obtained through Freedom of Information Act (FOIA) request, and at
EPA National Ombudsman Investigative Hearings, it appears that EPA did begin to implement
the NCP by dispatching On-Scene Coordinators to New York City.105 These OSCs were
involved in sampling and assessments to determine the level of contamination in residential and
commercial buildings and schools. However, Administrator Whitman and EPA officials have
yet to answer formal inquiries on whether or not the EPA has implemented the NCP, and if so, to
what extent.106
In documents obtained by the New York Environmental Law and Justice Project,
pursuant to a FOIA request, it appears that EPA OSC’s did environmental assessments of at least
some residential and commercial buildings at the request of the Ground Zero Elected Officials
Task Force.107 The GZTF made the request on September 21, 2001.108 According to the
documents in the FOIA request, the EPA did assessments of some apartments in Lower
Manhattan, Three World Financial Center, and schools in late September and early October.109
However, the EPA never informed anybody on the GZTF that this assessment was actually
performed, or of the results of this assessment. It was only discovered through the FOIA request
in late February, 2002.
Furthermore, in testimony provided at the EPA National Ombudsman Investigative

Hearing on March 11, 2002, it was discovered that OSC’s took indoor air samples at Stuyvesant
High School, and were involved in the decision to reopen the school on October 9, 2001.110
Sign-in sheets document that two EPA On-Scene Coordinators, the same two OSCs that did the
assessments of residential and commercial buildings, were in fact at the meeting on whether or
not to open Stuyvesant.111 However, in an email to Ombudsman Martin denying a request for
the OSC’s testimony, the OSC’s supervisor, Doug Lair, stated that the OSC had spent only “two
weeks in New York in September” and that he had “minimal knowledge” of World Trade Center
response activities.112 This statement cannot be true given even what little we know about OSC
involvement in Lower Manhattan in September and October. More importantly, the statement
by Doug Lair provides confirmation that OSCs were present in New York following September
11th, and that they have knowledge of response activities.
Clearly, the EPA began to implement, at least partially, the National Contingency Plan.
The EPA has been given numerous opportunites to provide evidence that these legal obligations
have been fulfilled, and it has provided no such evidence. Quite the contrary, the testimony and
105
Martin, Robert J. “Interim Finding: National Om budsman W orld Trade Center Hazardous Waste Case”
March 27, 2 002 .
106
Na dler, Je rrold. Letter to Ad min istrator W hitm an tra nsm itted via fax Mar ch 7, 20 02; M artin, Rob ert J.
“Interim Find ing: N ational Om bud sman W orld Trad e Center H azard ous Waste Case” M arch 27, 2 002 .
107
EPA Region II Document (via FOIA request by the New York E nvironm ental Law and Justice Project),
“Preliminary Assessment of Residential & Public Buildings," October 3, 2001.
108
Ground Zero Elected Official Task Force, Memorandum #4, September 21, 2001.
109
EPA Region II Document (via FOIA request by the New York Environmental Law and Justice P roject)
“Preliminary Assessment of Residential & Public Buildings,” October 3, 2001.
110
“Official Transcript,” EPA National Ombudsman Second Investigative Hearing on W orld Trade Center
Hazardous Waste Contamin ation,” M arch 11, 2 002 , Testim ony of Bernard O rlan, p. 307 -309, 38 9-390.
111
Martin, Robert J. “Interim Finding: National Om budsman W orld Trade Center Hazardous Waste Case”
March 27, 2002.
112
Ibid
19
correspondance of numerous EPA officials that FEMA made delegations of authority argues that
EPA did not fulfill its mandated oversight responsibility through On-Scene Coordinators.
As mentioned previously, the EPA, on its website and in public press releases, has
referred people to the New York City Department of Health (NYC DOH) recommendations for
guidance on reoccupying their homes and businesses.113 These recommendations advise people
to remove dust using a “wet rag or wet mop.”114 This advice is clearly illegal for a number of
reasons. First, as noted above, OSHA Assistant Secretary Henshaw issued a letter stating that
the settled dust from the collapse of the Twin Towers “must be presumed to contain asbestos”
and therefore, OSHA federal regulations apply to the remediation of this material.115 Asbestos-
containing material is a hazardous substance, and falls under the requirements of the NCP. 116
Therefore, EPA must exercise oversight of all the settled dust from the collapse of the World
Trade Center, including dust that settled inside people’s homes and businesses.
Second, the NYC DOH recommendations are for people reoccupying commercial
offices, as well as homes, yet the recommendations omit any mention of applicable OSHA
regulations, or that all of the dust must be presumed to contain asbestos.117 All of this is under
EPA oversight.118 Yet, not only does the EPA allow these recommendations to be made by NYC
DOH, the EPA actually refers people to them. As a result, the people of Lower Manhattan are
being advised to clean asbestos-laden dust with wet rags and mops, with no enforcement of
OSHA regulations or EPA regulations requiring the use of properly trained personnel to abate
hazardous materials. This is clearly not the intent of federal law, for if average citizens could
remediate hazardous substances, pollutants or contaminants with a wet rag, there would be no
need for a National Contingency Plan in the first place.
The EPA has the ability to correct these wrongs and act in accordance with the law.
Even if a decision had been made for the City to take responsibility for indoor air, federal
statutes provide for the EPA to act when nonfederal authorities are either unwilling or unable to
do so, and to do so in a timely manner.119 The EPA is aware of the inadequate measures taken by
the City. It was the EPA that faxed us the initial September, 2001 DEP notice to building
owners, which contained no enforcement measures or resources for remediating homes and
businesses. The EPA received independent test results in October, 2001 that showed elevated
levels of hazardous materials inside people’s apartments. The EPA heard testimony from
113
EPA Region II Press Release, “EPA and OSHA Web Sites Provide Environmental Monitoring Data From
World Trade Center And Surrounding Areas: Data Confirms No Significant Public Health Risks; Rescue
Crews and Nearby Residents Should Take Appropriate Precautions,” October 3, 2001.
114
“Recomm endations for People Re-Occupying Comm ercial Bu ildings a nd R esidents R e-Enterin g T heir
Hom es,” (www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html), printed on January 24, 2002 3:42pm.
115
Letter from John Henshaw (Assistant Secretary for OSHA) to Mr. Lowell Peterson, January 31, 2002.
116
40 C FR 302 .4; CR S Re port RS2 104 2, Asbestos: Federal Regulations of Uses, by E dw ard R app apo rt,
October 9, 20 01; C RS Rep ort R L3079 8, Environmental Laws: Summaries of Statutes Administered by the
Environmental Protection Agency, by Martin R. Lee, January 4, 2001.
117
“Recommendations for People Re-Occupying C omm ercial Bu ildings and Resid ents R e-Enterin g T heir
Hom es,” (www.ci.nyc.ny.us/html/doh/html/alerts/wtc3.html), printed on January 24th, 2002 3:42pm.
118
40 CFR 300.135 (l) ; 40 CFR 300.150; Executive Order 12580, later amended by Executive Order 12777;
40 CFR 300
119
40 CFR 300.410 (c)(1)(v); 42 U.S.C 9604 (a)(4); CRS Report RL307 98, Environmental Laws: Summaries
of Statutes Administered by the Environmental Protection Agency, by Martin R. Lee, January 4, 2001.
20
residents at the Senate field hearing in New York. The press accounts from the last two months
alone should make the agency aware that hazardous materials are still contaminating peoples’
homes. The EPA cannot plead ignorance, nor can it point fingers at FEMA. To do so is to
misrepresent the law.
As stated before, the EPA should be operating in New York City in accordance with the
National Contingency Plan and PDD 62. The NCP exists so that there is a transparent,
accountable and coordinated decision-making process. If decisions were made in Lower
Manhattan pursuant to the NCP, the EPA has provided no evidence of the process. Because the
Federal Response Plan activated the NCP, the EPA has the responsibility to manage hazardous
materials remediation. The NCP is authorized by CERCLA, despite the fact that Lower
Manhattan is not a Superfund site, nor does the EPA need to use Superfund Trust Fund money in
exercising its authority under the law.120 The NCP gives the EPA the authority and the resources
to ensure that hazardous substances, pollutants and contaminants do not pose a threat to public
health. The EPA has failed to uphold this law in response to the collapse of the World Trade
Center. It must remedy this situation by complying with the NCP now.
Why Is the EPA Treating New York City Differently?
The EPA’s inaction in New York City downtown residences and commercial buildings
stands in stark contrast to its response in its own building at 290 Broadway and to other non-
Superfund hazardous materials contamination sites around the country.
The issue of the EPA’s double standard, with respect to its own building at 290
Broadway, was first raised by Dr. Cate Jenkins, in a memo in which she described a conference
call in which EPA Region II Counsel Walter Mugdan stated that the building had been
“professionally cleaned.” Jenkins thus charged that the EPA had better protected its own
employees than it had the residents of Lower Manhattan, who had been referred to the lenient
DOH guidelines which recommended cleaning with wet rags and mops.121
Upon learning this, Congressman Jerrold Nadler, the New York Environmental Law and
Justice Project, and the EPA National Ombudsman each separately requested documents from
the EPA related to the alleged cleanup. Congressman Nadler’s request was answered in a letter
from EPA Administrator Christine Todd Whitman on February 22, 2002. In that letter, she
dismissed the double standard charge:
EPA did not set a more stringent standard of cleanup for these federal buildings,
and the lobby cleanup was consistent with the New York City Department of
Health ad visory. After noting significant amounts of dust tracked into 290
Broadway and 26 Federal Plaza b y workers responding. . ., the General Services
Administration asked EPA to clean the lobbie s. The wo rk was do ne by EPA
contractors using HEPA vacuums already operating in the same area. As outlined
in the enclosure, EPA collected seven air samples at 26 Fe deral Plaza and six ai r
120
40 CFR 300
121
Haughney, Christin e, “House Member QuestionsEPA Office Cleanup,” Wa shington Post, January 18, 2002.
21
samples at 290 Broadway, and found results below levels of concern [empha sis
added]..122 (Note that there is no mention of dust sampling.)
The enclosure to which Ms. Whitman refers is entitled “U.S.EPA Air Analytical Results
from 9/13/01 Sampling Event.” Under the section “methodology,” the document indicates that
both air and dust samples were taken. Air samples were “analyzed by TEM EPA 40CFR763
AHERA” and dust samples were “analyzed by PLM EPA-600 R-93/116.”123 Ms. Whitman’s
letter implies that, because the tests found only results below the “level of concern,” there was
no special action taken in the buildings.
But in reviewing the documents obtained under FOIA by the New York Environmental
Law and Justice Project (documents that Ms. Whitman did not include in her correspondence to
Congressman Nadler), Dr. Jenkins found that positive results for hazardous materials were
indeed detected by EPA tests. In fact, the documents show that the EPA used a much more
sensitive “TEM” method for settled dust sampling which found a “positive” result for hazardous
materials, despite Ms. Whitman’s enclosures in the Nadler letter that said it had used the “PLM”
method. According to Ms. Jenkins, this high sensitivity transmission electron microcopy or
TEM method for dust sampling was used nowhere else in Lower Manhattan, and “but for the
results from the more sensitive tests, Region 2 would not have abated asbestos from its
building.” That “abatement,” according to Jenkins, included, but was not limited to, HEPA
vacuuming and an evacuation for some period of time.124 This is, indeed, in stark contrast to the
DOH cleanup guidelines that EPA officials directed Lower Manhattan residents to follow: i.e.,
use of a wet rag or mop.
Either the testing and cleanup measures used at the EPA office were necessary to protect
its workers, or the EPA wasted tax-payer dollars on an unnecessary cleanup. If such sensitive
testing is used in EPA’s own building, why not in the rest of downtown Manhattan?
The EPA is also treating New York City differently than it has treated many hazardous
contamination sites around the country. While the EPA has stated it lacks jurisdiction to test for
and remediate hazardous materials in private space in lower Manhattan, it has acted on indoor air
in locales without Superfund designation in numerous places such as Herculaneum, Missouri;
Kellog, Idaho; and MacFarland, California.125
Furthermore, in Libby, Montana (a town only recently designated a Superfund site)

Administrator Whitman told residents at a September 7, 2001 town hall meeting that, “It has
never [emphasis added] been our plan to look to you to pay for any part of this clean-up,
122
Letter from Christine T odd Wh itman (E PA A dm inistrator) to Congressm an Jerrold Nadler (NY -08),
February 22, 2002.
123
Ibid., enclosure, “U.S.EPA A ir An alytical Resu lts from 9/13 /01 S am pling Event.”
124
Jenkins, Cate (Ph.D., Environmental Scienti st, Waste Identi fication Branch, HWID, Office of Solid Waste,
U.S. EPA), “3/6/0 2 Draft: Asbestos in Settled Dust and Soils,” March 6, 2002. See also Jenkins, Cate, (Ph.D.,
Environmental Scientist WIB, HWID, Office of Solid Waste, U.S. EPA) "Memorandum, Subject: Status of
Air and D ust A sbesto s Testing A fter W TC Collapse, M arch 11, 2 002 ."
Martin, Rob ert J . ( National Om bud sman, U .S.EP A) “ Testimo ny b efore the U nited States S enate
125
Sub com mittee on Clean A ir, Wetland s, and Clim ate Chan ge,” F ebru ary 1 1, 20 02.
22
including the clean-up of residential properties.” 126 As previously discussed, Dr. Cate Jenkins
has asserted that the levels of asbestos in lower Manhattan are comparable or in excess of those
found in Libby, Montana.127 Why, then, are the residents of lower Manhattan, who were victims
of the worst terrorist attack in American history, not receiving similar assurances from the EPA?
How can the EPA continue to deny that it has jurisdiction for indoor environments when only
four days before 9/11, Administrator Whitman asserted that very jurisdiction?
A Call to Action
The EPA must act in accordance with the NCP, a nd take a ction immediately to systematically
and properly test and remediate all downtown buildings affected by the W orld Trade Center
tragedy, using properly trained pe rsonnel, the be st-available equ ipment an d methods t ied to
genuine, established health-based standards. Seve n months after the attacks, it is now clear that
the EPA is the o nly governmental entity with the authority, resources, expertise and mandate to
do this job. Th is is the only course of action if the EPA is to restore the public trust and protect
the public health.
The Ground Zero Elected Officials Task Force on November 19, 2001 called for then-
Mayor Giuliani to designate “one city agency to oversee all environmental aspects of the debris
cleanup in Lower Manhattan based on the ongoing work at the World Trade Center site,
complaints by residents and business owners in the Lower Manhattan area about poor air quality,
and their ongoing difficulty in obtaining information from the agencies involved in monitoring
air quality.”128
By that time, it was abundantly clear to the local elected officials, through extended
contact with constituents and outreach to agencies and other decision-makers, that confusion
reigned regarding air quality. Among residents, building owners, small businesses, commercial
tenants and workers, there was a paucity of information on proper testing procedures, cleaning
protocols, funding sources and the myriad facts and instructions needed to cope properly with
the environmental effects of the attack. At the time, it seemed that the most logical and
appropriate remedy to the confusion would be for the City to provide a “one-stop shopping”
agency that could oversee and guide the cleanup. This would have been a move from crisis
mode management to ongoing, permanent administration.
The Task Force envisioned government functioning at its best: as a clearinghouse of

information, a guidance center for the most complete and up-to-date rules, procedures and
standards, and an enforcement unit to ensure that the strictest standards were observed to best
ensure the public’s health.
126
Whitman, Chr istine Todd, EPA Adm inistrator, “Remarks of Governor Chris tine Todd W hitman,
Administrator of the U.S. Environmental Protect ion Agency, at a Town Hall Meeting,” Libby, Montana,
Sep tem ber 7 , 200 1.
127
Jenk ins, Ca te (Ph .D., Environmental Sc ientist WI B, HWID, Off ice of Sol id Was te, U. S. EPA)
“M em oran dum , Sub ject: Prelimin ary A ssessm ent, Jan uary 11, 2 002 .”
128
Groun d Zero E lected Officials Task Force (C ongressman Jerrold Nadler, Chair) Press Release, “Ground
Zero E lected O fficials T ask F orce Calls fo r Clea nup Ov ersigh t Ag ency, Re leases I nde pen den t Air Q uality
Study,” November 19, 2001.
23
However, the full extent of the chaos and the enormity of the call were not clear at the
time. It was not known, for instance, that the EPA had delegated all responsibility for the indoor
environment to the City. It was not known that the City, in turn, had abrogated its responsibility
by relying on building owners to test and clean public spaces of buildings (with little
enforcement) and on individual residents and commercial tenants for private spaces (with no
enforcement). The City’s negative reaction to the mere hint of mishandling of this situation, or
to any constructive suggestions based on ongoing, empirical evidence inhibited success in the
pursuit of this one-agency designation. Indeed, letters and phone calls to the City’s Office of
Emergency Management went unheeded and unanswered. In the City’s quest to present the
image of a neighborhood “getting back to normal,” the mayhem in its own backyard persisted
untamed, while the EPA continued to proclaim that the “air was safe.”
Now, seven months later, it is clear that the EPA’s statement that “the City of New York
took the lead on the reoccupancy of buildings” incorrectly attributes actions to the City and
wholly overestimates its capability to assume responsibility for oversight and supervision for
that very task.
Even today, the City’s mission does not seem clear, even to itself. According to the City
DEP’s website, the “DEP is monitoring the ambient outdoor air for asbestos. This effort is
augmenting ambient air asbestos sampling being done by the EPA and other state and city
agencies.”129 If the EPA had delegated the lead on the indoor air and reoccupancy of buildings
to the City, why does the City continue to improperly handle that job and instead expend
resources on monitoring the outdoor air, the supposed province of the EPA? This leads to the
question, “which agency must assume responsibility for this situation?” The answer is the
agency whose legal mandate and mission is “to protect human health and safeguard our
environment” – the EPA.
According to federal regulations, once the Federal Response Plan was activated in New
York following the events of September 11th, the National Contingency Plan went into effect.130
United States counter terrorism policies, as seen in PDD 62 and the OMB annual terrorism
report, further support that the NCP applies to terrorist activities. Therefore, the EPA, and all
other agencies responding to the release of hazardous substances produced by the collapse of the
World Trade Center must follow NCP procedures. This includes the designation of an On-Scene
Coordinator, a chain of command for all response efforts so that there is a transparent,
accountable, and coordinated decision-making process, and compliance with federal laws,
regulations and standards.
Through administration of the NCP, the EPA must systematically and properly test and
remediate all downtown buildings. We cannot call Lower Manhattan “safe” until such systematic
testing and remediation is done. There has been inadequate testing and remediation thus far and
129
NY C D epartment o f En vironm ental P rotection w ebsite o n A ir, No ise and Ha zardous M aterials— Air
Monitoring in Lower Manhattan.
130
40 CFR 300.3(d)
24
the threat of recontamination to theoretically “safe” environments is real.131 The EPA has failed
to uphold the law in response to the collapse of the World Trade Center. The EPA has On-Scene
Coordinators, Environmental Response Teams, contractors, procedures, and the resources
necessary to do the job. It must come into compliance with the NCP now, and remedy this
situation.
New York City has suffered in many ways as a result of September 11, not least
financially. A budget deficit of $4 billion is forecast for next year, and City agencies are being
forced to make reductions and sacrifices to keep minimal services at acceptable levels. The City
may also have future financial costs to face. By providing residents with inappropriate guidance
regarding apartment cleaning, the city may amass huge contingent liabilities. Similarly, New
York State, by providing incentives for individuals to move into Lower Manhattan (via the
Lower Manhattan Development Corporation) at a time when the area may not be safemay
also be accruing these liabilities.
It is evident from agency testimony and the City’s documented fiscal frailty that it would
be unreasonable to expect it to underwrite the tremendous cost of testing and cleaning every
building contaminated in Lower Manhattan. This large-scale undertaking is one that only can be
accomplished by the federal government. It is also morally right for the federal government to
assume the cost.
The Citizens of Lower Manhattan -- residents, workers and building owners -- have been
victims of a terrorist attack on this nation, and should not bear the burden of making their homes,
offices, and businesses safe again President Bush has said repeatedly that “This attack was one
perpetrated on America.” Why should New York City or its citizenry, which already have borne
so much sorrow, also have to bear the cost of an obligatory cleanup? Administrator Whitman
must ensure the victims of 9/11 who live and work in downtown Manhattan what she told the
residents of Libby, Monana: that she would provide a legal guarantee "that will protect them
from EPA's ever seeking to have them assume the costs of cleanup"132
It is utterly absurd that the federal government would pay for removal costs if a steel
beam from the World Trade Center fell into a home or workplace, but not so if that same beam
were broken into a million pieces because of an explosion due to the same attack. This is not the
intent of federal laws and policies.
When the EPA engages in such a testing and remediation program, it must do so utilizing
the best science, techniques, and equipment and the strictest health-based standards to call indoor
environments “safe.” The EPA and the entities to which it has inappropriately delegated
authority have already been found to use approaches that are less than adequate. New York
Letter from R. Radha krishman (P.E., Director of NYC DEP’s Asbest os Control Program) to Building
131
Ow ners, February 12, 2002. See also “Interim Working Findings on the National Ombudsman World Trade
Center Hazardous Waste Case – Schools Located Near the H azard ous W aste B arge in Lo wer M anh attan,”
February 27, 2002.
W hitm an, Chri stine Todd, EPA Adminis trator, “Remarks of Governor Chri stine Todd Whitman,
132
Adm inistrator of the U.S. Environmental Protect ion Agency, at a Town Hall Meeting,” Libby, Montana,
September 7, 2001.
25
deserves the highest level of treatment, just as EPA’s own building and other areas of the
country have received.
In mid-February, Administrator Whitman announced a new EPA plan to establish a Task

Force on Indoor Air in Lower Manhattan, "working with our local, state, and federal partners.”133
Shortly thereafter, Mayor Michael Bloomberg announced the formation a city-wide Lower
Manhattan Air Quality Task Force and telephone hotline. In the past two months, there has been
little action made by these entities. On March 25, the EPA task force, announced that it will
“remove residual debris from rooftops and facades around the World Trade Center site,”134 a
task, while important, has little to do with the specific question of indoor air. In addition, the
EPA task force said it would “work to build on an indoor air study conducted in November and
December,”135 the results of which are still unavailable months later. It is a fervent hope that the
creation of these groups was not an attempt to muffle the issue, which demands immediate
action, not ponderous meetings and discussions. The public’s trust in government has already
been severely weakened. The acts of unresponsive agencies damage the integrity and honor of
government service, and despoil the trust necessary for government to be effective.
Now, seven months after the World Trade Center disaster, there is still time for the EPA
to redeem itself and to make Lower Manhattan truly safe. The opportunity is here and now for
the EPA to fulfill its purpose by accepting the mantle of protector of public health. A failure to
act immediately may result in mammoth future health care costsas victims of the disaster are
faced with increasing health problems. By acting now, the EPA can help to avoid the costs, as
well as maintain its role as public health defender. The EPA has the power, the knowledge, the
means, the mandate, and the moral obligation to rise to the challenge.
There are some who urge a swift “return to normal” and who protest that raising the
specter of contaminated indoor areas is scaring people. That attitude and those claims are short-
sighted and irresponsible. It is certainly important to get New York City back on track, but to
pretend that health hazards do not exist is foolhardy and reckless – both from a public health
perspective and from the vantage point of economic redevelopment. If we act immediately and
decisively, we can still safeguard both the City’s future and the public health. Surely the expense
of cleaning properly is worth the health of this and the next generation.
133
Letter from Christine Todd Whitman to Senator Hillary Clinton, Feb. 12, 2002.
134
U.S . E n v ir on m ental Pr otection Agency-Region 2 Press Release, “Federal, State , and Cit y Agencies
Announce Actions For Lower Manhattan Air Quality,” March 25, 2002.
135
Ibid.
26

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Also includes copy of Congressman Nadler's 4/12/02 White Paper

which references Jenkins' reports/memos dated:

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

DATE: March 11, 2002 - c

1. Misrepresented “safe levels” and standards for asbestos

FROM: Cate Jenkins, Ph.D.*

TO: Affected Parties and Responsible Officials

The following table of contents also serves as a summary.

Region 2 falsely claims 70 structures/square millimeter is “AHERA standard” 6

70 s/mm2 is not the AHERA standard, as explained in the AHERA regulations 8

– It is a LABORATORY BACKGROUND, the same as a DETECTION LIMIT 8

– A “LABORATORY BACKGROUND” is like going to a salad bar with a 8

– The container for the salad is like a “LABORATORY BACKGROUND” 8

Region 2 mistakes 70 s/mm2 as a normal air “background” level 10

The actual AHERA standard for asbestos in air is ZERO 11

– The AHERA regulations explicitly state: “there are no safe exposures to 11

Explanation of “PCM equivalent” asbestos fibers 13

– A sensitive laboratory method is like looking at something with a microscope, 17

70 s/mm2 – AHERA must be used in combination with a leaf blower (aggressive 20

– The law (through implementing regulations) requires this combination 20

– You can’t have one without the others 20

– Previously, EPA required air sampling for at least 8 hours or more 21

Under the EPA NESHAP, 1% asbestos is not considered a safe level 26

– 1% only applies when defining the asbestos-containing building material itself 26

– Region 2 agrees that 1% is not related to health risks 26

In Superfund guidance, EPA found 1% asbestos or lower is hazardous 27

Decontamination of demolition sites must be cleaned up to background, not just 1%, 28

– The asbestos-free level is “no asbestos detected by TEM” – not 1% 32

OSHA regulations recommend TEM analyses of settled, bulk dusts 34

– Region 2 claims that asbestos levels are “low” in Manhattan dust 34

Difference in testing methods and sensitivities for: 38

– EPA Region 2 building at 290 Broadway 38

– All of Manhattan and surrounding NYC after WTC collapse 38

– After the first bombing of the World Trade Center 38

Region 2 falsely claims 70 structures/square millimeter is “AHERA standard”

The samples are evaluated against a variety of benchmarks, standards and

Regional Counsel for EPA’s Region 2 made the following assertions:

In a document drafted by Region 2 legal counsel, the following statement is made:

It was developed to determine whether school buildings where asbestos was

– It is a LABORATORY BACKGROUND, the same as a DETECTION LIMIT

– A “LABORATORY BACKGROUND” is like going to a salad bar with a

– The container for the salad is like a “LABORATORY BACKGROUND”

EPA Region 2 has unfortunately completely misinterpreted the regulations at Title

(i) Completion of response actions.

Region 2 mistakes 70 s/mm2 as a normal air “background” level

As seen above, the word “background” in the regulations refers to a laboratory

The actual AHERA standard for asbestos in air is ZERO

– The AHERA regulations explicitly state:

40 CFR § 763. Appendix B to Subpart E to Part 763 -- Asbestos Model

Asbes tos S cho ol Ha zard Detec tion an d Contro l Act

Q: What is the acceptable exposure/ambient air standard for asbestos?

Explanation of “PCM equivalent” asbestos fibers

70 s/mm2 – AHERA is 2375 to 4750 times higher than EPA’s 10 -6

70 s tru ctu re s p er s qu are m illimeter (s/m m 2) COMPARISON WITH CANCER RISKS

THEORETICAL EQUIVALENTS TO 70 s/mm 2 from 40 C FR § 763 Ap p. A

fibers over 5 : m, “PCM-equivalent”

EPA REGION 2 EQUIVALENTS TO 70 s/mm 2, if 50% of fibers are “P CM equ ivalen t”

EPA REGION 2 EQUIVALENTS TO 70 s/mm 2, if 25% of fibers are “P CM equ ivalen t”

AVAILABLE AIR ASBESTOS LEVELS SIGNIFICANTLY ABOVE DETECTION LIMITS

concentration in concentration in fibers less fibers date

0.0095 17.78 2 0 9/28

0.0095 17.78 1 1 9/25 a

0.0095 17.78 1 1 9/25

0.0143 26.67 2 1 9/29 a