info 04.25.08

The Dust, Settled

Earlier this week, the Second Circuit Court of Appeals dismissed the lawsuit against Christie Todd Whitman, former EPA administrator, whose pronouncements after the September 11th attacks misled both workers on the pile and nearby residents on the crucial subject of air quality safety. As a result, thousands have become gravely ill and some have died.

Did we say misled? We meant lied. She lied to the city.

On Wednesday, September 12, 2001, the Daily News has reported that Whitman and Dr. Ed Kilbourne, an administrator of the Agency for Toxic Substances and Disease Registry, "warned government officials against any hasty attempt to reopen the buildings in lower Manhattan."

Dr. Kilbourne wrote a memo on that date to the CDC (obtained by the Daily News and reported by Juan Gonzales) warning about dangerous asbestos concentrations and stating, "We are aware of other potential toxic hazards in the WTC area…contaminant groups of concern include acid gases, volatile organic compounds and heavy metals."

On Thursday, September 13, 2001, however, Whitman announced, "Everything we're getting back from the sampling that we're doing is below background levels. There is not a reason for the general public to be concerned." Preliminary asbestos tests by the EPA, however, had shown increased levels of asbestos. And air tests confirmed dangerous levels of the mineral fiber.

Whitman was getting pressure from the Bush administration, specifically by the Council on Environmental Quality, headed by the dangerous hack James Connaughton (reported by Talking Point Memo) to downplay dangers so that Wall Street could return to work. At a hearing before Congress in June, 2007, Whitman asked, "Was it wrong to try get the city back on its feet as quickly as possible in the safest way possible? Absolutely not…We weren't going to let the terrorists win."

And so, five days after the attacks, Whitman told reporters, "The good news continues to be that air samples we have taken have all been at levels that cause no concern." She said that New Yorkers should not be concerned because "their air is safe to breathe and their water is safe to drink." A press release from the EPA dated September 18, 2001 "confirmed" these assertions.

In her Congressional testimony, Whitman said, "I do not recall any EPA scientists or experts who were responsible for reviewing this data ever advising me that the test data from Lower Manhattan showed that the air or water posed long-term health risks for the general public." Besides the qualifier 'I do not recall', Whitman has long maintained that there was a distinction between Ground Zero workers and the general public in terms of risks. She says that the distinction was made clear and that she had urged rescue workers to use respiratory gear.

But the distinction was not clear—what was clear were the bland assurances that the air was safe. That's what the Bush administration wanted communicated, that's what Whitman did, and that's the message New Yorkers received. The EPA even told residents that they could clean dust in their apartments with wet wipes and HEPA vacuums. (OSHA had said the dust was contaminated by asbestos and, by law, such a contamination must be remediated professionally. It wasn't until late October, however, that Whitman suggested using professional cleaners.)

What was the truth about the air quality? From a study conducted by University of California Davis, there were four types of toxins:
1) Fine and very fine transition metals, which interfere with lung chemistry.
2) Acids, in this case sulfuric acid, which attack cilia and lung cells directly.
3) Very fine, un-dissolvable (insoluble) particles, in this case glass, which travel through the lungs to the bloodstream and heart.
4) High-temperature organic matter, many components of which are known to be carcinogens.

"For each of these four classes of pollutant, we recorded the highest levels we have ever seen in over 7,000 measurements we have made of very fine air pollution throughout the world, including Kuwait and China."

When a case was first brought against Whitman, the federal judge wrote "Whitman's deliberate and misleading statements made to the press, where she reassured the public that the air was safe to breathe around Lower Manhattan and Brooklyn, and that there would be no health risk presented to those returning to those areas, shock the conscience…No reasonable person would have thought that telling thousands of people that it was safe to return to Lower Manhattan, while knowing such return could pose long-term health risks and other dire consequences, was conduct sanctioned by our laws."

On appeal, as the Second Circuit Civil Rights Blog explains, the plaintiffs lost because they sued under a "Bivens action" which the courts have held only "provides for a remedy in limited cases" and, essentially, the court found that there was no violation of plaintiffs' constitutional rights.

The facts, though, demonstrate a grievous wrong done to thousands of people. (The EPA's own internal report [PDF], released in 2003, confirms that). And someone should be held accountable. Christie Todd Whitman is not the only person culpable in this particular mess. But neither should she be allowed to slip through the current accountability gap. Whether one has violated the Geneva Conventions, allowed a city to drown, subverted the Justice Department, signed off on sham airliner inspections, or approved new drugs while ignoring safety warnings (among countless others scandals), the level of unethical and criminal behavior that has been tolerated and fostered by the Bush administration is as toxic to the country as the air at Ground Zero was to people who had been told that air was safe.

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