[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
U.S. ENVIRONMENTAL PROTECTION
AGENCY'S RESPONSE TO AIR QUALITY
ISSUES ARISING FROM THE TERRORIST
ATTACKS ON SEPTEMBER 11, 2001:
WERE THERE SUBSTANTIVE DUE
PROCESS VIOLATIONS?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JUNE 25, 2007
__________
Serial No. 110-54
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
U.S. GOVERNMENT PRINTING OFFICE
36-342 PDF WASHINGTON DC: 2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
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Washington, DC 20402-0001
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida
ROBERT WEXLER, Florida DARRELL ISSA, California
LINDA T. SANCHEZ, California MIKE PENCE, Indiana
STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
----------
JUNE 25, 2007
Page
OPENING STATEMENT
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 9
The Honorable Anthony D. Weiner, a Representative in Congress
from the State of New York, and Member, Committee on the
Judiciary...................................................... 11
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 28
WITNESSES
The Honorable Christine Todd Whitman, Whitman Strategy Group
Oral Testimony................................................. 13
Mr. John L. Henshaw, Henshaw & Associates, Inc.
Oral Testimony................................................. 15
Prepared Statement............................................. 18
Mr. Samuel Thernstrom, American Enterprise Institute
Oral Testimony................................................. 64
Prepared Statement............................................. 66
Ms. Tina Kreisher, Communications Director, U.S. Department of
the Interior
Oral Testimony................................................. 85
Prepared Statement............................................. 86
Mr. David M. Newman, New York Committee of Occupational Safety
and Health
Oral Testimony................................................. 88
Prepared Statement............................................. 90
Ms. Eileen McGinnis, Senior Vice President, Whitman Strategy
Group
Oral Testimony................................................. 114
Ms. Marianne L. Horinko, Executive Vice President, Global
Environment & Technology Foundation
Oral Testimony................................................. 115
Ms. Suzanne Y. Mattei
Oral Testimony................................................. 116
Prepared Statement............................................. 118
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Chairman, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 6
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan,
Chairman, Committee on the Judiciary, and Member, Subcommittee
on the Constitution, Civil Rights, and Civil Liberties......... 10
APPENDIX
Material Submitted for the Printed Hearing Record
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Chairman, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 150
Supplemental Submission from the Honorable Christine Todd
Whitman, Whitman Strategy Group................................ 153
Response to Post-Hearing Questions from the Honorable Christine
Todd Whitman, Whitman Strategy Group........................... 158
Response to Post-Hearing Questions from John L. Henshaw, Henshaw
& Associates, Inc.............................................. 167
Response to Post-Hearing Questions from Samuel Thernstrom,
American Enterprise Institute.................................. 171
Response to Post-Hearing Questions from Tina Kreisher,
Communications Director, U.S. Department of the Interior....... 174
Response to Post-Hearing Questions from Eileen McGinnis, Senior
Vice President, Whitman Strategy Group......................... 175
Response to Post-Hearing Questions from Marianne L. Horinko,
Executive Vice President, Global Environment & Technology
Foundation..................................................... 177
Substantive Due Process Violations Arising from the EPA's
Handling of Air Quality Issues Following September 11, 2001,
June 25, 2007.................................................. 181
OFFICIAL HEARING RECORD
Material Submitted but not Printed
The information that follows is material that was submitted for the
official hearing record. The material is not printed in this printed
hearing record but is on file with the Subcommittee and is also
available at the specified links.
EPA's Response to the World Trade Center Collapse: Challenges,
Successes, and Areas for Improvement, by the Office of the EPA
Inspector General at:
http://www.epa.gov/oig/reports/2003/WTC_report_20030821.pdf.
This August 21, 2003 report by EPA's Office of the Inspector
General surveys EPA's response to the attacks on 9/11 and the Agency's
failure to comply with its established regulations and
responsibilities, particularly with regard to indoor air.
Pollution and Deception at Ground Zero, by Suzanne Mattei at:
http://web.archive.org/web/20041106175554/www.sierraclub.org/
groundzero/report.pdf.
This report, by the former New York City Executive of the Sierra
Club, analyzes the response of Federal and local authorities in the
wake of 9/11. It provides important insight into falsely reassuring
statements that EPA made to the public.
EPA Ombudsman Hearings Transcripts at:
http://www.nyenvirolaw.org/PDF/Transcript-EPA-OmbudsmanHearing-2-
23-2002.pdf, and
http://www.nyenvirolaw.org/PDF/Transcript-EPA-OmbudsmanHearing-3-
11-2002.pdf.
The EPA Ombudsman held two investigative hearings in 2002 at the
request of Congressman Nadler to explore the accounts of people who
were directly affected by the environmental consequences of 9/11.
Transcripts of both hearings are provided.
The Honorable Jerrold Nadler's Actions Regarding World Trade Center Air
Quality on Testing and Clean-up of WTC Contamination at:
http://www.house.gov/nadler/wtc/cleanup.shtml.
This site provides information on Congressman Jerrold Nadler's
actions on testing and clean-up of contamination that resulted from the
collapse of the World Trade Center. It provides a link to Congressman
Nadler's April 12, 2002 report on Lower Manhattan air quality, which
documents significant evidence that EPA misled the public about the
safety of air quality and made virtually no effort to ensure that City
agencies complied with Federal laws designed to protect the public from
hazardous materials.
U.S. ENVIRONMENTAL PROTECTION AGENCY'S RESPONSE TO AIR QUALITY ISSUES
ARISING FROM THE TERRORIST ATTACKS ON SEPTEMBER 11, 2001: WERE THERE
SUBSTANTIVE DUE PROCESS VIOLATIONS?
----------
MONDAY, JUNE 25, 2007
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 1:02 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Wasserman Schultz,
Ellison, Conyers, Scott, Cohen, Franks and King.
Also present: Representatives Pascrell and Weiner.
Staff Present: David Lachman, Subcommittee Staff Director;
Kanya Bennett, Majority Counsel; Perry Apelbaum, Staff Director
and Chief Counsel; Ted Kalo, General Counsel/Deputy Staff
Director; Paul Taylor, Minority Counsel; Crystal Jezierski,
Minority Counsel; and Susana Gutierrez, Professional Staff
Member.
Mr. Nadler. Good afternoon. This hearing of the
Subcommittee on Constitution, Civil Rights, and Civil Liberties
will come to order. Today's hearing will examine the question
of possible substantive due process violations arising from the
EPA's handling of air quality issues following the terrorist
attacks of September 11, 2001.
Before we begin, and mindful of the very strong emotions
necessarily associated with the issues we will be looking at
today, I would remind all those in attendance that the Rules of
the House of Representatives do not permit demonstrations of
any kind by the spectators. That includes holding up posters of
any kind. The work we are doing today is very important. We
have the opportunity to get answers to questions many people
have been asking for nearly 6 years. The Chair is determined to
see that the work of the Committee will go forward and not be
disrupted. I know that those of you have traveled so far to be
here will agree with that goal.
Before we begin, I'd like to extend a special welcome to a
number of people who are here: to first responders John
Sferazo, Marvin Bethea, Richard Volpe, Jim McGowan, Deputy
Chief Jim Riches, and Michael Arcari; to family members, the
family of Felicia Dunn-Jones, Rebecca Jones, Joseph Jones,
Sharon Alvarez, Rose Foti and Diane Horning; and to people who
have been very active in the community surrounding the World
Trade Center in the last 5\1/2\ years, Kimberly Flynn, Jo
Polett, Catherine McVay Hughes, Jonathan Bennett, Rob Spencer,
Rachel Lidov, Sally Regenhard, Robert Gulack, Nina Lavin;
member of the State Assembly from New York Linda Rosenthal; and
Professor Glen Corbett.
The Chair recognizes himself for an opening statement.
Today the Subcommittee begins--let me say since the Ranking
Minority Member is not here yet, he will be here in about 20
minutes, we will give him an opportunity to make his opening
statement after he arrives between rounds of questioning.
Before my opening statement, I want to ask unanimous
consent, we are joined today by the gentleman from New York,
Mr. Weiner, who is a Member of the full Committee but not a
Member of the Subcommittee. Without objection, the gentleman
will be permitted to sit on the Subcommittee and recognized to
ask questions of our witnesses after the Members of the
Subcommittee have had the opportunity do so. Without objection.
In addition to that, we are joined today by the gentleman
from New Jersey Mr. Pascrell. Without objection, the gentleman
will be permitted to sit on the Subcommittee and will be
recognized for 5 minutes to ask questions of our witnesses
after the Members of the Subcommittee have had the opportunity
to do so. Without objection.
Today the Subcommittee begins its investigation of the
possible substantive due process violations arising from the
Environment Protection Agency's handling of air quality issues
following the terrorist attacks of September 11, 2001.
I want to welcome our witnesses and thank them for their
willingness to participate. This hearing continues the work
begun in the hearing chaired last week by New York's junior
Senator, Hillary Clinton, which also looked at the Federal
Government's failures in responding to the environmental crisis
that resulted from the World Trade Center attacks.
The hearing will examine whether the Federal Government by
its actions violated the substantive due process rights of
first responders, local residents, students and workers.
Specifically, did the Federal Government itself, by responding
inadequately or improperly to the environmental impact,
knowingly do bodily harm to its citizens and thereby violate
their constitutional rights, and if so, which government actors
were responsible? We will look into what is known about the
quality of the air versus what was communicated to the public
and whether Federal Government ``risk communications'' properly
communicated necessary and legal precautions.
So why are we asking these questions about events that
happened nearly 6 years ago?
These hearings represent the first comprehensive
congressional oversight investigations into these matters since
the immediate aftermath of the attacks. Indeed, Congress and
the American people have heard very little on the record from
the key players in this controversy.
Today marks the first time that former EPA Administrator
Christine Todd Whitman has testified at a congressional hearing
dedicated solely to the Federal Government's response to the
environmental and health dangers caused by the terrorist
attacks on the World Trade Center.
The heroes and victims of 9/11, and the families and
workers who continue to live with the consequences of that
environmental disaster, deserve to know the truth, to hear from
the officials who provided the assurances on quality, and to
learn why, and on what basis those assurances were made.
Finally we must address the future. What can we learn from
the government's response? How will our government respond to
future environmental disasters? The Administration seems to be
headed in the wrong direction already. For example, the
Administration has now mandated that public health
communications during a terrorist attack be ``coordinated''
through the Department of Homeland Security, and it is
developing standards for toxic clean-ups and national
emergencies that may be weaker than current Federal standards.
I represent the site of the World Trade Center and the
surrounding communities. The World Trade Center collapse
propelled hundreds of tons of asbestos, nearly half a million
pounds of lead, and untold amounts of glass fibers, steel and
concrete into a massive cloud of toxic, caustic dust and smoke
which blanketed parts of New York City and New Jersey, and was
blown and dispersed into surrounding office buildings, schools
and residences. In addition, fires that burned for many months
emitted particulate matter, various heavy metals, PCBs, VOCs,
dioxin, benzene and other deadly substances.
Tens of thousands of my constituents and others from around
the country who responded to the call have already begun to
suffer severe illnesses. I have unfortunately had to spend the
better part of the last 5-plus years attempting to cajole the
Federal Government into telling the truth about 9/11 air
quality, insisting that there must be a full and proper clean-
up of the environmental toxins remaining in apartments,
workplaces, and schools that to this day, I believe, are
poisoning people, and demanding that the government provide
long-term, comprehensive health care to those already sick, be
they first responders or area residents, workers or
schoolchildren.
In the 6 years since the attacks, we have accumulated a
mountain of evidence that tens of thousands of those exposed,
including 10,000 firefighters, are suffering from chronic
respiratory diseases and a variety of rare cancers. And the
deaths of at least two individuals, James Zadroga and Felicia
Dunn-Jones, whose families join us today, have been linked
unquestionably by government medical examiners to World Trade
Center dust. Nonetheless, the Federal Government still refuses
to respond appropriately.
The Administration continues to conceal and obfuscate its
misstatements, its failure to follow applicable laws, and its
failure to take standard protective actions in the days and
weeks following the attacks. Even worse, the Administration
still fails to protect the health of the community and our
first responders. Whatever may have been noted at the time the
evidence available today mandates action.
The Administration's continuing lack of response stems
directly, I believe, from a desire to cover up its
misstatements and misdeeds in the early days after the attacks.
The Administration has continued to make false, misleading and
inaccurate statements, and refused to take remedial actions,
even in the face of overwhelming evidence, so that it would not
have to admit it failed to follow applicable laws and to
utilize basic precautionary principles in the first place. It
continues to this day, to endanger the lives of American
citizens, so it can deny that other White House concerns
trumped its legal mandate to protect public health. That is why
this hearing seeks to reexamine what happened back in the early
days of September and October 2001.
Following the attacks Administrator Christine Todd Whitman
repeatedly assured New Yorkers that the air was ``safe to
breathe.'' On September 14, 2001, the New York Times concluded
from Administrator Whitman's assurances that ``tests of air and
the dust coating parts of Lower Manhattan appeared to support
the official view expressed by Federal health and environmental
officials that health problems from pollution would not be one
of the legacies of the attacks.''
The EPA Inspector General found these statements were
falsely reassuring, lacked a scientific basis, and were
politically motivated. The IG said, ``When EPA made a[n]
announcement that the air was ``safe'' to breathe, it did not
have sufficient data and analyses to make such a blanket
statement.''
The IG called the EPA assurance, quote, ``incomplete in
that it lacked necessary qualifications and thus was not
supported by the data available at the time.'' She concluded
that ``EPA's basic overriding message was that the public did
not need to be concerned about airborne contaminants caused by
the World Trade Center collapse. This reassurance appeared to
apply to both indoor and outdoor air.''
I believe the Inspector General was quite generous here. In
a March 2002 White Paper, I detailed how EPA's statements not
only lacked sufficient data and qualification, but how they
also mischaracterized what data they did have, withheld
critical information from the public, and ignored a wealth of
information available at the time that directly contradicted
their assurances.
The IG's report described the process by which the White
House, through the Council on Environmental Quality and the
National Security Council, ``. . . influenced . . . the
information that EPA communicated to the public . . . when it
convinced EPA to add reassuring statements and delete
cautionary ones.'' It concluded that, quote, ``competing
considerations, such as . . . the desire to open Wall Street,
also played a role in EPA's air quality statements,'' close
quote. Other observers have surmised that the cost of a proper
government-financed clean-up of indoor spaces, given the scope
of potential contamination, and concern about Manhattan real
estate value may have been other ``competing considerations.''
These EPA statements and a series of subsequent EPA
misdeeds lulled Americans affected by 9/11 to a false sense of
safety, and gave other government decision-makers, businesses
and employers the cover to take extremely perilous shortcuts,
which did further harm. After making those initial safety
claims, EPA continued to make materially misleading statements
about air quality, long-term health effects and EPA's alleged
lack of jurisdiction for remediating indoor contamination. EPA
illegally delegated its responsibility to clean indoor
environments to New York City, which in turn dumped that
responsibility onto individual homeowners, tenants and
employers who were completely unequipped to discharge that
responsibility.
EPA conducted indoor clean-ups in 2002 and later that the
IG, EPA's own Scientific Advisory Panel, and now the Government
Accountability Office have all found lacked a paper scientific
basis and failed to ensure the proper decontamination of tens
of thousands of residences and work places.
The response of other Federal agencies was similarly
inadequate. The Occupational Safety and Health Administration,
for example, failed to enforce workplace safety regulations on
the ``pile,'' the same regulations that were enforced at the
Pentagon where every worker was required to wear respirators,
and nobody has become sick. OSHA allowed indoor workers to
reoccupy workplaces that had not been properly tested and
cleaned. FEMA refused to pay for testing and clean-up of indoor
spaces, a cost that was much too prohibitive for most residents
and small businesses. FEMA also denied payments to residents to
stay elsewhere even when their homes were full of World Trade
Center dust.
New York City and State government officials followed suit
by allowing reoccupation of buildings, including schools, that
had not properly been tested and decontaminated; advising
people to clean asbestos-containing dust in their homes and
workplaces with a ``wet mop and wet rag,'' illegal and unsafe
advice endorsed by EPA and posted on its Website; and failing
to enforce local environmental codes for worker protection.
Based on EPA assurances, insurance companies refused to
cover individual claims for proper indoor clean-ups, and
building owners and employers citing the Federal safety
standards did not properly test and clean the spaces for which
they were ostensibly responsible. Hundreds of thousands of
people, not wanting to imagine that their government could act
with such reckless disregard for their safety, believed the
false assurances and continued to work on the pile with
inadequate protective equipment and returned to their homes,
schools and workplaces that had not been properly tested and
cleaned and have still have not been.
Six years later we are just beginning to see the enormous
consequences of these actions. Our government knowingly exposed
thousands of American citizens unnecessarily to deadly,
hazardous materials, and because it has never admitted the
truth, Americans remain at grave risk to this day. Thousands of
first responders, residents, area workers and students are
sick, and some dead. And that toll will continue to grow until
we get the truth and take appropriate action.
Those false statements continue to the present.
Administrator Whitman has said, ``There has never been a
subsequent study that disproved what agency scientists told us
all along.'' She omits to note that what Agency scientists and
others told her was very, very different from what the EPA
communicated to the public.
A September 2003 statement of 19 EPA union local heads
read:
``Little did the Civil Service expect their professional
work would be subverted by political pressure applied by the
White House. . . . These workers reported to senior EPA
officials their best estimate of the risks, and they expected
those estimates and the accompanying recommendations for
protective measures to be released in a timely manner to those
who need the information. The public was not informed of all
the health risks. . . . This information was withheld . . .
under orders of the White House. The Bush White House had
information released, drafted by political appointees, that it
knew to contradict the scientific facts. It misinformed. And
many rescue workers and citizens suffered. Some citizens now
face the long-term risk of asbestos-related lung cancer as well
as other debilitating respiratory ailments as a result.''
I want to conclude with a pronouncement made by then
Administrator Whitman in 2001. She declared then, ``The
President said, 'Spare no expense, do everything you need to do
to make sure the people of this city . . . are safe as far as
the environment is concerned.''
It is my fervent hope that after some of the truth begins
to come to light through these hearings, we will see that this
promise made to the victims and heroes of 9/11 is finally kept.
[The prepared statement of Mr. Nadler follows:]
Prepared Statement of the Honorable Jerrold Nadler, a Representative in
Congress from the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties
Today, the Subcommittee begins its investigation into possible
substantive due process violations arising from the Environmental
Protection Agency's handling of air quality issues following the
terrorist attacks of September 11, 2001.
I want to welcome our witnesses and thank them for their
willingness to participate.
This hearing continues the work begun in a hearing chaired last
week by New York's Junior Senator, Hillary Clinton, which also looked
at the federal government's failures in responding to the environmental
crisis that resulted from the World Trade Center attacks.
This hearing will examine whether the federal government, by its
actions, violated the ``substantive due process'' rights of first
responders, local residents, students and workers. Specifically ``[d]id
the federal government itself, by responding inadequately or improperly
to the environmental impacts--knowingly do bodily harm to its citizens,
and thereby violate their constitutional rights? And, if so, which
government actors were responsible?'' We will look into what was known
about the quality of the air versus what was communicated to the
public, and whether federal government ``risk communications'' properly
communicated necessary and legal precautions.
So, why are we asking these questions about events that happened
nearly 6 years ago?
These hearings represent the first comprehensive Congressional
oversight investigations into these matters since the immediate
aftermath of the attacks. Indeed, Congress and the American people have
heard very little on the record from the key players in this
controversy.
Today marks the first time that former EPA Administrator Christine
Todd Whitman has testified at a Congressional hearing dedicated solely
to the federal government's response to the environmental and health
dangers caused by the terrorist attacks on the World Trade Center.
The heroes and victims of 9/11, and the families and workers who
continue to live with the consequences of that environmental disaster,
deserve to know the truth; to hear from the officials who provided the
assurances on air quality, and to learn why, and on what basis those
assurances were made.
Finally, we must address the future. What can we learn from the
government's response? How will our government respond to future
environmental disasters like this? The Administration seems to be
headed in the wrong direction already. For example, they have now
mandated that public health communications during a terrorist attack be
``coordinated'' through the Department of Homeland Security and they
are developing standards for toxic cleanups in national emergencies
that may be weaker than current federal standards.
I represent the site of the World Trade Center and the surrounding
communities. The World Trade Center collapse propelled hundreds of tons
of asbestos, nearly half a million pounds of lead, and untold amounts
of glass fibers, steel and concrete into a massive cloud of toxic,
caustic dust and smoke which blanketed parts of New York City and New
Jersey, and was blown or dispersed into surrounding office buildings,
schools, and residences. In addition, fires that burned for many months
emitted particulate matter, various heavy metals, PCBs, VOCs, dioxin,
benzene and other deadly substances.
Tens of thousands of my constituents and others from around the
country who responded to the call have already begun to suffer severe
illnesses as a result of this environmental disaster. I have,
unfortunately, had to spend the better part of the last five plus years
attempting to cajole the federal government into telling the truth
about 9/11 air quality, insisting that there must be a full and proper
cleanup of the environmental toxins remaining in apartments,
workplaces, and schools that, to this day, are poisoning people, and
demanding that the government provide long term, comprehensive health
care to those already sick--be they first responders or area residents,
workers or school children.
In the six years since the attacks, we have accumulated a mountain
of evidence that tens of thousands of those exposed are suffering from
chronic respiratory disease, and, increasingly, a variety of rare
cancers. The sick includes 10,000 firefighters. And, the deaths of at
least two individuals--James Zadroga and Felicia Dunn-Jones (whose
family joins us today) have been linked unquestionably by government
medical examiners to World Trade Center dust. Nonetheless, the federal
government still refuses to respond appropriately.
The Administration continues to conceal and obfuscate its
misstatements, its failure to follow applicable laws, and its failure
to take standard protective actions in the days and weeks following the
attacks. Even worse, the Administration still fails to act to protect
the health of the community and our first responders. Whatever may have
been known at the time, the evidence available today mandates action.
The Administration's continuing lack of responsiveness stems
directly, I believe, from a desire to cover up its misstatements and
misdeeds in the early days after the attacks. The Administration has
continued to provide false, misleading and inaccurate statements, and
refused to take remedial actions, even in the face of overwhelming
evidence, so that it would not have to admit that it failed to follow
applicable laws and to utilize basic precautionary principles in the
first place. It continues, to this day, to endanger the lives of
American citizens, so it can deny that other White House concerns
trumped its legal mandate to protect public health. That is why this
hearing seeks to re-examine what happened back in those early days of
September and October of 2001.
Following the attacks, Administrator Christine Todd Whitman
repeatedly assured New Yorkers that the air was ``safe to breathe.'' On
September 14, 2001, the New York Times concluded from Administrator
Whitman's assurances that, ``tests of air and the dust coating parts of
Lower Manhattan appeared to support the official view expressed by . .
. federal health and environmental officials: that health problems from
pollution would not be one of the legacies of the attacks.''
EPA's Inspector General found that these statements were falsely
reassuring, lacked a scientific basis, and were politically motivated.
The IG said, ``When the EPA made a[n] announcement that the air was
`safe' to breathe, it did not have sufficient data and analyses to make
such a blanket statement.'' She called this EPA assurance, ``incomplete
in that it lacked necessary qualifications and thus was not supported
by the data available at the time.'' She concluded that ``EPA's basic
overriding message was that the public did not need to be concerned
about airborne contaminants caused by the WTC collapse. This
reassurance appeared to apply to both indoor and outdoor air.''
I believe that the IG was quite generous here. In a March, 2002
``White Paper,'' I detailed how Administrator Whitman's statements not
only ``lacked sufficient data'' and ``qualification,'' but how she also
mischaracterized what data she did have, withheld critical data from
the public, and ignored a wealth of information available at the time
that directly contradicted those assurances.
The IG's report described a process by which the White House,
through the Council on Environmental Quality and the National Security
Council, ``. . . influenced . . . the information that EPA communicated
to the public . . . when it convinced EPA to add reassuring statements
and delete cautionary ones.'' It concluded that, ``competing
considerations, such as . . . the desire to open Wall Street, also
played a role in EPA's air quality statements.''
Other observers have surmised that the cost of a proper government-
financed cleanup of indoor spaces, given the scope of the potential
contamination, and concerns about Manhattan real estate values, were
other ``competing considerations.''
These EPA statements, and a series of subsequent EPA misdeeds,
lulled Americans affected by 9/11 into a dangerously false sense of
safety, and gave other government decision-makers, businesses and
employers the cover to take extremely perilous short cuts which did
further harm. After making those initial safety claims:
EPA continued to make materially misleading
statements about air quality, long-term health effects, and
EPA's alleged lack of jurisdiction for remediating indoor
contamination;
EPA illegally delegated its responsibility to clean
indoor environments to New York City, which, in turn, dumped
that responsibility onto individual home owners, tenants, and
employers; and
EPA conducted two so-called ``indoor cleanups'' that
the IG, EPA's own scientific advisory panel, and, now, the
Government Accountability Office, all found lacked a proper
scientific basis and failed to ensure the proper de-
contamination of tens of thousands of residences and
workplaces.
The response of other federal agencies was similarly inadequate.
The Occupational Safety and Health Administration, for example, failed
to enforce workplace safety regulations on the ``pile'' that it
enforced at the Pentagon (where every worker was required to wear
respirators and nobody has become sick). OSHA also allowed indoor
workers to re-occupy workplaces that had not been properly tested and
cleaned. FEMA refused to pay for testing and cleanup of indoor spaces,
a cost that was much too prohibitive for most residents and small
businesses. FEMA also denied payments to residents to stay elsewhere
even when their homes were full of World Trade Center dust.
New York City and State government officials followed suit by
allowing re-occupation of buildings (including schools) that not been
properly tested and decontaminated, advising people to clean asbestos-
containing dust in their homes and workplaces with a ``wet mop and a
wet rag''--illegal and unsafe advice endorsed by EPA and posted on its
website--and failing to enforce local environmental codes for worker
protection.
Based on EPA assurances, insurance companies refused to cover
individual claims for proper indoor cleanups. And building owners and
employers, citing the federal safety statements, did not properly test
and clean the spaces for which they were ostensibly responsible.
Finally, hundreds of thousand of people, not wanting to imagine
that their government could act with such reckless disregard for their
welfare, believed the false assurances, and continued to work on the
pile with inadequate Personal Protective Equipment and returned to
their homes, schools and workplaces that had not been properly tested
and cleaned--and have still not been.
Six years later, we are just beginning to see the enormous
consequences of these actions. Our government has knowingly exposed
thousands of American citizens unnecessarily to deadly hazardous
materials. And because it has never admitted the truth, Americans
remain at grave risk to this day. Thousands of first-responders,
residents, area workers and students are sick, and some are dead, and
that toll will continue to grow until we get the truth and take
appropriate action.
Those false statements continue to the present. Ms. Whitman herself
has rationalized the White House's soft-peddling of risk in EPA
statements, proclaiming to Newsweek in 2003 that she did not object to
the White House changing her press releases and that, ``the public
wasn't harmed by the White House's decision to adopt the more
reassuring analysis.'' Even now, they try to rewrite history, arguing,
for example, that their reassuring statements were ``only talking about
air on the `pile,' not in the surrounding neighborhoods'' or that they
were ``only talking about outdoor, not indoor air'' or that they had
``always told residents to get their homes professionally cleaned.''
The IG reached a different conclusion, and the statements speak for
themselves. Governor Whitman has even gone so far as to blame the
victims themselves for their illnesses.
Administrator Whitman has said, ``There has never been a subsequent
study that disproved what agency scientists told us all along.'' She
omits to note that what agency scientists and others told her, was
very, very different from what she communicated to the public. A
September, 2003 statement of 19 EPA union local heads reads:
Little did the Civil Service expect that their professional
work would be subverted by political pressure applied by the
White House. . . . These workers reported to senior EPA
officials their best estimate of the risks, and they expected
those estimates and the accompanying recommendations for
protective measures to be released in a timely manner to those
who need the information. The public was not informed of all
the health risks. . . . This information was withheld . . .
under orders of the White House. The Bush White House had
information released, drafted by political appointees, that it
knew to contradict the scientific facts. It misinformed. And
many rescue workers and citizens suffered. Some citizens now
face the long-term risk of asbestos-related lung cancer as well
as other debilitating respiratory ailments as a result.
I want to conclude with a pronouncement made by then-Administrator
Whitman in September 2001. She declared then, ``The President has said,
`Spare no expense, do everything you need to do to make sure the people
of this City . . . are safe as far as the environment is concerned.''
It is my fervent hope that after some of the truth begins to come
to light through these hearings; we will see that this promise, made to
the victims and heroes of 9/11, is finally kept.
Thank you.
Mr. Nadler. Please, no demonstrations, including applause.
Since the Ranking Member is not here, as I stated before,
we will postpone his opening statement.
Normally in the interest of proceeding to our witnesses--we
will have apparently two opening statements right now, first
from the Chairman of the full Committee, the distinguished
gentleman from Michigan Mr. Conyers.
Mr. Conyers. Thank you, Chairman Nadler.
I come here in full recognition of the importance and
gravity of this hearing, and I begin by welcoming the witnesses
of which there are quite a few. But to begin with, it is
important that we extend a welcome, as the Chairman Nadler
will, to Governor Christine Todd Whitman, the former
Administrator of EPA.
We thank you very much for your appearance here today and
the discussion that we are going to have.
This isn't a courtroom, although most of the people might
be lawyers. We want to try to get at the bottom of a very
important historical question, obviously. And the reason I
start off by welcoming you is that it would not be
inappropriate to notice that you, at times when you felt it
necessary, have been an independent voice in discharging your
responsibilities not only as the Governor, but as the director
or Administrator of EPA, the Environmental Protection Agency.
And so we thank you for coming.
This will probably be the most important hearing that we
will hear, and it is appropriate that you know that there--with
Chairman Nadler, he has a very direct and vital connection to
this terrible tragedy. His constituents were involved. He's
represented the City of New York and the State of New York
across a great number of years, and so we think that that is
extremely important.
I would also like to thank the former Administrator of the
Occupational Safety and Health Administration, OSHA, Mr. John
Henshaw, who is sitting at the witness table as well. I want to
thank you, sir, personally for the cooperation you have
extended the Committee, which leads us to the best way that we
can get at what happened.
Now, September 11, 2001, indelibly imprinted in the history
of this country by reason of the fact that terrorists flew two
hijacked commercial jets into the World Trade Center Towers in
New York. Almost 3,000 people were killed by the terrorists in
the collapse of the towers, including hundreds of first
responders, police officers and firefighters. Beyond the
devastating loss of life, when the towers collapsed, numerous
hazardous substances were released into the environment.
It also is appropriate to say that our attitude as a Nation
toward the enemies of this country were automatically changed
at the same time in a hugely dramatic way. And so we're here to
reexamine it, and I have to comment on some of the theories
that have been advanced to me across the years about this,
which we need not recount now, but this has moved into the
psyche of almost all of the citizens of this country.
And so evidence accumulated since the collapse of the World
Trade Center under this attack indicates that the air exposure
to these hazards have caused serious physical injury and death.
That's probably the first thing we want to examine. Those who
relied on statements that the air was safe and the instructions
for insufficient clean-up of the indoor spaces have created
serious results following that.
There's been a lot of injuries and deaths and suffering and
family misery that has been caused as a result of the actual
dastardly attack on this country. This oversight hearing of the
Constitution Subcommittee gives us and the American people the
first opportunity to try to establish what really happened, and
we are looking for an honest revelation of the circumstances
and the relationships between EPA and the White House, through
the Council on Environmental Quality and the National Security
Council, and other activities between them that will be
inquired into.
It's very important to me that all of our witnesses'
testimony be as candid as it possibly can be under the
circumstances. We're here to learn, we're here to find out what
happened, we're here to put to rest some of the
misunderstandings that have occurred. And we are counting on
our witnesses, beginning with Governor Whitman and Mr. Henshaw
and those others--I think there are six more on panel two--to
help us make history right by us proceeding with an inquiry
that is long overdue.
But I commend the Chairman and even the Ranking Member in
his absence, and I am hoping he will appear shortly, for the
way they have constructed today's activity, and I thank the
Chairman and congratulate him for his hard work.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
On September 11, 2001, nearly 3,000 Americans lost their lives in a
series of terrorist attacks, one of which caused the collapse of the
World Trade Center. As a Nation, we collectively shared the pain and
suffering of the victims and the survivors of these horrific attacks.
Sadly, there continues to be further casualties of this national
tragedy. The collapse of the World Trade Center spewed numerous toxic
chemicals into the air, which was then inhaled by the brave rescuers
and clean-up personnel as well as the men, women and children living in
the surrounding area. Already, many of these individuals have developed
life-threatening illnesses as a result of their exposure to these
chemicals.
Our Nation's air quality watchdog, the Environmental Protection
Agency, however, may not have accurately assessed the extent of the
hazard these airborne toxins presented to the public. Indeed, the
allegations go beyond that the EPA acted negligently.
While the EPA assured members of the public that the air was safe
and that they could return to their homes, jobs, and schools, there is
accumulating evidence that the available science did not support those
statements and may have actually contradicted them.
The EPA's Inspector General found that the Agency's press releases
and reports were altered to downplay or conceal the breadth of the
environmental hazard and health consequences. In addition, the U.S.
District Court for the Southern District of New York recently held that
the EPA's actions violated the public's due process rights. Noting that
the EPA's actions were ``conscience-shocking,'' the court found that
the Agency ``affirmatively took actions that increased or created
dangers'' to the public.
Although the terrorists bear the ultimate responsibility for the
September 11th attacks, it is the duty of our government to protect the
public and to assist those whose lives have been affected by a
catastrophe. Unfortunately, the government's failures here have
compounded, rather than lessened the impact of the September 11th
attacks.
Today, we have the opportunity to assess the EPA's response to the
lingering health hazards presented by these attacks. It is my hope that
the witnesses will shed light on the facts and circumstances of the
Agency's actions and respond to these very serious allegations.
Understandably, there has been much speculation as to why the EPA acted
as it did, but the American public, particularly those who work and
live in New York City deserve the truth.
Mr. Nadler. I thank the gentleman.
I am told that Mr. Weiner wanted to have an opening
statement. Without objection--do any of the other Members of
the Subcommittee want an opening statement first?
Fine. Without objection, Mr. Weiner will be recognized for
an opening statement.
Mr. Weiner. Thank you, Mr. Chairman. I won't take much
time.
I first want to begin by offering my thanks and the thanks
of our whole city to you, Mr. Chairman. Shortly after the
events of September 11, there began to be many people who
sought to gloss over the challenges our city in Lower Manhattan
faced. You were not one of them. You confronted the danger that
was quite literally in the air and have not given up your quest
to get to the bottom of it.
Today I also want to welcome Governor Whitman, the EPA
Administrator, here today. We will get to hear two voices, and
maybe even more, from the EPA Administrator. We heard the
public assurances in the days after September 11; the
assurances, for example, on September 13, in the EPA press
release that the air quality is ``unlikely to cause significant
health effects, and the EPA is greatly relieved to have learned
there appears to be no significant levels of asbestos dust in
the air in New York City.'' We heard the EPA say on the 16th,
air asbestos levels ``cause us no concern.'' September 18: ``I,
the EPA administer, am glad to reassure the people of New York
and Washington, D.C., that the air is safe to breathe.'' Those
quotes were unambiguous, they were reassuring, and they were
dead wrong. They were literally dead wrong. We know they were
deadly because many of my constituents and some people in this
audience are dying because they believed those assurances.
We also know they were wrong because the IG has said they
were wrong. A Federal district court went so far as to say
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 the
areas shocked the conscience.
We also know they were wrong because the EPA knew they were
wrong at the time you, Madam Governor, stated them. At the
point that those decisions were made, those statements were
made, 25 percent of all the dust samples taken by the EPA had
already shown to have unsafe levels of asbestos.
But now there is a second voice emerging from the former
Administrator, after shouting from rooftops in the days after
September 11 that the air was safe, now there are statements
that, well, in fact, I, the EPA Administrator, was quietly
whispering into the ear of city officials, saying, don't
believe what I say publicly, only believe that it is unsafe; go
out and make sure your workers protect themselves.
It looks very honestly like what it is, an unseemly attempt
to rewrite the public record, to rewrite it in a way that
effectively covers one person's responsibility and moves it to
someone else. Make no mistake, this is a national
responsibility. This was an attack on us, the United States,
not one neighborhood, not two buildings. It was an attack on
the United States.
It is the responsibility of the Federal Government to act
now, and it is not too late. It is too late for some that stood
on that pile and believed what they heard their highest
government officials say, but it is not too late for the
Federal Government to finally step up and say, we did wrong
then, there were pressures on us that were unimaginable, but
now is the time for us to start taking care of the health of
the people who believed what we said.
There was an environment in the period after September 11
where many things that were told to us by our government turned
out to be wrong. Slowly but surely, like an onion peeling away,
we are learning more and more of them. Perhaps none were so
damaging to the health and lives of the people in New York City
than the ones made by our witness here today. We cannot
continue this effort to say I said, he said, she said. Now is
the time to accept responsibility, so finally the people who
are harmed by those statements, harmed by those misjudgments,
harmed by that mismanagement can finally reach some closure on
the facts and get some opening on true health care for their
families.
And I yield back.
Mr. Nadler. I thank the gentleman.
Without objection, all Members will have 5 legislative days
to submit opening statements for inclusion in the record.
Without objection, the Chair will be authorized to declare
a recess of the hearing if necessary at any time.
We will now turn to our first panel of witnesses. As we ask
questions of our witnesses, the Chair will recognize Members in
the order of their seniority on the Subcommittee, alternating
between Majority and Minority, provided that the Member is
present when his or her turn arrives. Members who are not
present when their turn begins will be recognized after the
other Members have had the opportunity to ask their questions.
The Chair reserves the right to accommodate a Member who is
unavoidably late or is only able to be with us for a short
time.
Our first witness is the Honorable Christine Todd Whitman.
Christine Todd Whitman served as Administrator of the U.S.
Environmental Protection Agency under President George W. Bush
from 2001 to 2003. Before that she served for 7 years as
Governor of New Jersey. Governor Whitman is now the president
of the William--I'm sorry, Whitman Strategy Group, a consulting
firm that specializes in government relations and environmental
and energy issues.
Our next witness is John Henshaw. Mr. Henshaw was nominated
by President Bush and was confirmed by the Senate in 2001 to
head the Occupational Safety and Health Administration. Prior
to becoming the OSHA Administrator, he served as director,
environment safety and health for Astaris, LLC. He was also the
director of environment safety and health for Solutia, Inc.;
corporate director, quality and compliance assurance, from
Monsanto Company. He is now president of Henshaw & Associates,
Inc., a safety and health professional services firm of
Florida.
Your written statements will be made part of the record in
its entirety. I would ask that you now summarize your testimony
in 5 minutes, if you can. To help you stay within that time
there is a timing light at your table. When 1 minute remains,
the light will switch from green to yellow, and red when the 5
minutes are up. I will be a little lenient on the timing.
It is our custom in this Committee to swear the witness, so
will the two witnesses please stand? I ask you to raise your
right hand to take the oath.
[witnesses sworn.]
Mr. Nadler. Let the record reflect the witnesses responded
in the affirmative.
You may be seated.
Governor, you may proceed.
TESTIMONY OF THE HONORABLE CHRISTINE TODD WHITMAN, WHITMAN
STRATEGY GROUP
Ms. Whitman. I appreciate this opportunity to respond, to
discuss the Environmental Protection Agency's response to the
terrorist attacks of September 11, 2001. It's been nearly 6
years since two planes flew into the Twin Towers of the World
Trade Center, yet not a day goes by that I don't think of
friends that we all lost and the grief, despair and
helplessness we felt as a Nation.
It is important to remember that many of the EPA personnel
saw the planes hit knowing they had friends and relatives in
those buildings. Yet within hours of those attacks, EPA
officials were on the site collecting test data on potential
environmental contaminants in order to assist New York City and
the public.
In the early days EPA officials were monitoring for
contaminants around Ground Zero without the benefits of
electricity, surrounded by firefighting crews in the midst of
desperate rescue operations. They deserve our respect and our
appreciation.
On September 11, the President issued the declaration of
emergency triggering the Federal response plan, which assigned
lead Federal authority to the Federal Emergency Management
Agency. FEMA then charged EPA with the responsibility of
supporting the city's response to any discharge of hazardous
materials as a result of the attacks.
EPA immediately began collecting air, water and bulk dust
samples for testing. By 2003, EPA had taken over 25,000 test
samples, consisting of nearly 227,000 individual measurements
of almost 700 contaminants. The EPA also performed other
emergency response functions, such as the removal of hazardous
waste, monitoring environmental conditions at landfills
receiving debris from the World Trade Center, assisting the FBI
in the recovery of evidence and remains, as well as
constructing and operating wash stations near Ground Zero for
both vehicles and personnel.
Within days of the attack, EPA took the initiative to
secure critical protective gear for rescue and recovery
personnel and in all provided them with 22,000 respirators,
13,000 safety glasses, 1,000 hard hats.
After I left the Agency in 2003, the Inspector General
confirmed that the EPA fulfilled its mandate to support New
York City. While understandably finding areas for improvement,
she publicly stated, and I quote, ``EPA did a really good
job.''
Mr. Chairman, I fully appreciate that the events of 9/11
touch raw emotions, but I am disappointed in the
misinformation, innuendo and outright falsehoods that have
characterized public discussion about EPA in the aftermath of
the terrorist attacks. EPA's extreme critics have alleged that
I knowingly misled New Yorkers and the workers of Ground Zero
about the safety risks associated with environmental
contamination. This destructive and incendiary charge was
investigated by EPA's Inspector General, who confirmed in her
2003 report that we did not conceal any of our test data from
the public.
In fact, within days of the 9/11 report, I authorized EPA
to post all the test data, all of it, on a public Website. I
did so precisely because I wanted to be as transparent to the
public as possible. Statements that EPA officials made after 9/
11 were based on the judgment of experienced environmental and
health professionals at EPA, OSHA and the CDC who had analyzed
the test data that 13 different organizations and agencies were
collecting in Lower Manhattan.
I do not recall any EPA scientist or experts 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.
With respect to the immediate area where the towers fell,
however, the data revealed, and we publicly reported, that the
air was different than in the rest of Manhattan. As these
charts over here show, in the weeks following the attacks, EPA
officials repeatedly warned of the risk to workers at Ground
Zero and noticed the difference between air quality at the site
and the air in the rest of New York. I and other EPA officials
publicly urged rescue and recovery workers to wear protective
gear that EPA had secured for their use at Ground Zero.
The EPA also advised workers at Ground Zero of the proper
washing procedures for their clothes and equipment. In fact, on
September 11, only hours after the attack, EPA officials
prepared this flier that I would direct your attention to for
distribution by FEMA to rescue and recovery workers at the
site. As you can see, Mr. Chairman, the flier informed workers
of the risk of asbestos exposure caused by the collapse and
cautioned workers to use protective equipment, including
appropriate eyeglasses, respirators and protective clothing. It
also urged proper cleaning procedures for clothing and
equipment. It is utterly false, then, for EPA critics to assert
that I or others in the agency set about to mislead New Yorkers
or the rescue workers.
Mr. Chairman, the grief of 9/11 remains with us. Like many
others, I lost personal friends that day. I suspect there will
be a lot of talk in this hearing about blame and responsibility
for what happened on September 11 and its aftermath. Let's be
clear: There are people to blame. They are the terrorists who
attacked the United States, not the men and women at all levels
of government who worked heroically to protect this country.
Of course, there are lessons to be learned from the
extraordinary challenges of 9/11. I welcome a constructive
dialogue on those lessons that is undertaken in good faith. I
came here today in that spirit, Mr. Chairman, and I trust the
Subcommittee has as well.
I thank you and will be pleased to answer any questions
that you might have.
Mr. Nadler. Thank you.
I now recognize Mr. Henshaw for an opening statement for 5
minutes.
TESTIMONY OF JOHN L. HENSHAW,
HENSHAW & ASSOCIATES, INC.
Mr. Henshaw. Thank you, Mr. Chairman. You stated earlier I
am an occupational safety and health professional and a
certified industrial hygienist providing safety and health
consultation services to clients around the world.
In June 2001, I was nominated by President Bush and then
later confirmed by the U.S. Senate in August of 2001 as
Assistant Secretary of Labor for the Occupational Safety and
Health Administration, or OSHA.
I wish to take this opportunity today to discuss OSHA's
role in protecting workers after the tragic events of the World
Trade Center on September 11, 2001. My testimony represents my
views and reflects my experiences as the OSHA Administrator.
OSHA's mission is to ensure to the extent possible safe and
healthful working conditions for employees around this Nation.
Under the OSH Act of 1970, OSHA has jurisdiction over private-
sector employees and does not have jurisdiction over the
public-sector employees such as the local fire and local
police.
In addition, and under the Federal Response and National
Contingency Plans established to deal with emergencies, OSHA
operates under the incident command system which is invoked
during significant emergency situations.
Our first action after the attack was to evacuate all 21
members of our Manhattan area office from building number 6 of
the World Trade Center, which was destroyed with the collapse
of the North Tower. It is because of their training and
commitment to protecting workers, all of our employees,
including an employee confined to a wheelchair, got out safely.
They, too, were traumatized and exposed to all the same
conditions as others who were in Lower Manhattan that tragic
day.
After all were accounted for, our staff joined the Federal,
State and local agencies, as well as safety and health
professionals from contractors, trade unions on site, all in an
effort to protect the workers involved in the rescue, recovery,
demolition and clean-up operations. In line with OSHA's
internal directive, we determined we could be most protective
in protecting worker safety and health by providing immediate
assistance, oversight and consultation in an effort to ensure
OSHA's standards and good safety and health practices were
followed at a minimum.
It was apparent the site was not a typical construction or
demolition project. Workers needed immediate protection from
hazards whose scope and severity could be assessed only as the
work progressed. In an effort to achieve quick and maximum
effectiveness in saving lives and assuring worker protections,
OSHA embarked on five specific activities: Number one,
conducted personnel and area monitoring to characterize
potential workplace exposures and the resulting hazards; number
two, recommended appropriate personal protective equipment,
including respiratory protection; number three, distributed and
fit respirators, along with distributing other kinds of
personal protective equipment; number four, conducted safety
and health inspections 24 hours a day, 7 days a week in an
effort to ensure standards were followed and workers were
properly protected; and number five, provided site leadership
and coordination of workplace safety and health.
OSHA committed nearly 1,100 staff, many times as many as 75
personnel on the site on any day. OSHA's staff worked on the
site 24 hours a day, 7 days a week for the entire 10-month
period. OSHA collected more than 6,500 air and bulk samples and
performed over 24,000 analyses, looking at 81 different
potentially hazardous materials such as asbestos, lead, silica
and many other organic and inorganic compounds.
Personal air samples were collected around the clock each
day, and we coordinated our efforts in monitoring with our
safety and health compatriots, our professionals, and unions,
and contractors and other agencies. OSHA's sampling effort
focused on workers on and near the pile, as well as workplaces
that were impacted by the attack, which is like the financial
district. OSHA's breathing zone samples showed well below the
Agency's permissible exposure levels for the majority of
compounds and substances. The few that were above were on the
pile.
OSHA distributed sampling summaries to trade unions, site
contractors and agencies during our daily safety and health
meetings and posted them on our Web. OSHA consistently
instructed employers on the site to wear appropriate
respiratory protection. Due primarily to the unpredictable
nature of the hazards on the pile, a high level of protection
was selected jointly with all safety and health professionals.
These requirements were communicated through orders and notices
posted throughout the sites, as well as during inspections,
daily meetings and other communications.
During the first 3 weeks following the attack, OSHA gave
out respirators at a rate of 4,000 a day. Over the 10-month
period OSHA distributed more than 131,000 respirators to
personnel working at the World Trade Center. Initially handing
out respirators on foot, OSHA quickly opened multiple
distribution locations throughout the 16-acre site, including
the ones at the Queens Marina, which was the Fire Department of
New York's staging area.
Over 7,500 quantitative fit tests were conducted for
negative pressure respirators, including nearly 3,000 fit tests
specifically for the firefighters. In addition, 45,000 pieces
of other kinds of protective equipment were distributed,
including hard hats, safety glasses, gloves.
Mr. Chairman, I am very proud of how OSHA responded after
the attack of September 11, 2001. Despite the highly intense,
highly emotional and highly dangerous rescue, recovery and
clean-up mission, this Nation did not lose another life at that
site during that 10-month period. In fact, the lost day injury
rate during that 10-month period was significantly less than
what you would expect on a typical construction project.
Mr. Chairman, this was not a typical construction project.
The absolute key to this success was working in partnership
with unions, contractors, city employees, management, all in an
effort to achieve compliance with OSHA's standards and our
recommendations. The normal enforcement strategy was
unacceptable to me, unacceptable approach, to enforce within
the green line the pile, given the fact that enforcement may
take days or weeks to develop the necessary evidence to support
citations as this Committee knows. As you know, if citations
are contested, it could take years before the administrative
law judge's review and corrective action is required.
Mr. Chairman, if our purpose is to save lives and reduce
injuries and illnesses, we did not have years, we did not have
months, we did not have weeks, we did not have hours to wait
for corrective action. We had to deploy a strategy to achieve
compliance as soon as the hazard was recognized. The number of
near misses that were reported indicated to me that the
strategy that achieved immediate corrective action was the
absolute right choice. OSHA did, however, execute normal
enforcement strategy outside the pile, outside of Ground Zero,
and we issued many citations as a result.
Mr. Chairman, I, like many people in OSHA, can say with
confidence and a high degree of pride that OSHA's staff did
everything they believed humanly possible to assure worker
protection during those 10 months after the attack. OSHA did,
however, learn a great deal at the World Trade Center site,
lessons that can help the Agency and the Nation improve
emergency preparedness and emergency response.
Following the World Trade Center experience, OSHA is
pursuing a leadership role in coordinating worker health and
safety during significant emergencies and is getting more
involved in emergency preparedness. We now train with
firefighters, law enforcement agencies and others responders
across the Nation as a valued member of the response team.
Our Nation's responders deserve the very best protection,
and the best way to assure that is for OSHA, supported by
NIOSH, to be an integral part of our Nation's emergency
planning, training and response efforts.
Thank you, Mr. Chairman. I will be glad to take any
questions.
Mr. Nadler. Thank you.
[The prepared statement of Mr. Henshaw follows:]
Prepared Statement of John L. Henshaw
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. The Chair will recognize himself for the first
questions.
A September 12, 2001, e-mail circulated to top EPA
officials stated, quote, ``All statements to the media should
be cleared through the National Security Council before they
were released,'' close quote. So as early as September 12, the
National Security Council and the White House were approving
public statements. Let's take a look at some of those
statements. There will be a video for about 30 seconds.
[Videotape played.]
Mr. Nadler. Ms. Whitman, an EPA press release from
September 18th also quotes you as saying, ``I am glad to
reassure the people of New York and Washington, D.C., that
their air is safe to breathe.''
Mr. Henshaw, in a September 16th press release, you were
quoted as saying, ``Our tests show that it is safe for New
Yorkers to go back to work in New York's financial district.''
In a series of EPA press releases beginning on September
13, the following words were used to describe the air
conditions: Good news, causes no concern, not detectable, no
significant health risk and safe to breathe.
Ms. Whitman, do these words and phrases convey a sense of
danger or even of caution, or do they, in fact, convey a sense
of safety and security?
Ms. Whitman. Mr. Chairman, those words, to the best of my
recollection and every effort that I made at the time, were
also added with the phrase, ``However, on the pile it is
different.''
Mr. Nadler. Well, we will get to that.
Ms. Whitman. There is a significant difference, the
readings we were getting at the time.
Mr. Nadler. At the time--would you answer my question--do
they convey a sense of safety and security or a sense of
caution?
Ms. Whitman. They convey exactly what they were meant to
convey. Those were the readings we were getting from the
scientists.
Mr. Nadler. Do you regret your repeating the sentence that
the air was safe to breathe?
Ms. Whitman. I do not regret repeating what the scientists
said was appropriate.
Mr. Nadler. Mr. Henshaw, do these words and phrases convey
a sense of danger or even of caution? Or do they convey a sense
of safety and security in your opinion?
Mr. Henshaw. Again, not counting the pile, the pile was a
separate issue.
Mr. Nadler. We will get to the pile.
Mr. Henshaw. All right. We took 240 samples------
Mr. Nadler. Please answer the question.
Mr. Henshaw. All of our samples were below our--
significantly below our significant exposure limits.
Mr. Nadler. You said that already. It is on the record. I
just asked you to convey the sense of------
Mr. Henshaw. That conveys that the environment is safe.
Mr. Nadler. Okay. Thank you. Do you now regret saying it
was safe for New Yorkers to go back to work 6 days after the
terrorist attack? Was that a mistake?
Mr. Henshaw. Not within the Financial District. On the pile
was a different circumstance. Sir, I do not regret it.
Mr. Nadler. The area around it was okay?
Mr. Henshaw. All of our data indicated it was okay.
Mr. Nadler. Ms. Whitman, during 2001 did any government
official or outside scientist tell you that EPA statements were
not adequately communicating health risk warnings based on the
data available at the time?
Ms. Whitman. Mr. Chairman, to the best of my knowledge, not
one of the scientists who were responsible for analyzing the
data on the pile ever indicated------
Mr. Nadler. Did any scientist?
Ms. Whitman. Not that I can recall.
Mr. Nadler. Okay. Now, Ms. Whitman, I would like to talk
about the information you had or did not have at the time and
compare it to what EPA said publicly. Much of this organization
is--I am sorry--much of this information is contained on that
chart to your left, although not all of it. It is Document 16
in the binder that was supplied to you. Since I know it's a
little difficult to read that, because I can't read it from
here, that chart summarizes overwhelming evidence that when the
EPA was assuring everyone was--that the air was safe, in fact,
it either didn't have supporting data or it had data showing
the opposite.
Ms. Whitman, on September 13 you said in an interview,
everything we are getting back from the sampling that we are
doing is below background levels. There's not a reason for the
general public to be concerned, closed quote. And yet on
September 12, the day before that statement, in response to an
urgent White House inquiry, Dr. Ed Kilbourne of the Centers for
Disease Control warned that EPA sampling data was, quote,
scanty, unquote, that he was, quote, aware of other toxic
hazards in the area about which EPA hasn't asked, and that of
the first five EPA bulk samples from the World Trade Center
site, one contained a, quote, substantial concentration of
asbestos, closed quote. That is 20 percent of the available
samples.
Doesn't this information make your September 13 statement a
flat out falsehood?
Ms. Whitman. No, it does not, Mr. Chairman.
Mr. Nadler. Why doesn't it?
Ms. Whitman. The fact that dust contained high levels of
lead and asbestos, or asbestos I should say, is absolutely
accurate and true. But that was different from what we were
finding in the air. In fact, that was why we were working with
the city to put HEPA trucks on the street that could get in and
suck up the dust and to wash down the outsides of the
buildings.
Mr. Nadler. Were you aware that Dr. Kilbourne had warned
that EPA wasn't asking about lots of toxic hazards and that he
said that the EPA sampling data was scanty and should not be
relied upon for safety at that------
Ms. Whitman. I was not aware of any scientist--what
happened--let me describe for you the process. Perhaps it will
help things. The first week, or 2 weeks actually, we had three
phone calls a day, gradually went down to two and then one,
that involved every regional administrator from around the
country, Region 2 scientists at Region 2, on-scene coordinators
as well as headquarters staff, who was involved with emergency
response and in communications. We would go over what the
dust--what the samples they were getting in those days. And we
were constantly adding to the samples. There's no doubt about
that. We were getting results on a lot of those samples. We
would go over. I would ask what was accurate to say to the
public, what they could hear, what I could say accurately. And
I was told we were--went over that, we decided what it was and
we went out and conveyed that to the public.
Mr. Nadler. Well, EPA did not begin regular outdoor air
monitoring in Lower Manhattan until September 14. The only air
monitoring results, we are told, that you had for September 12
and 13 were from the New York City Department of Environmental
Protection. Those air samples, of the 10 air samples the city
took during those days, seven showed asbestos levels above the
EPA's 1 percent trigger mark, including one from as far away as
six blocks away in front of the Municipal Building. Yet the
September 13 press release states that EPA, quote, found either
no asbestos or very low levels of asbestos and further states
that monitoring the sampling has been very reassuring about
potential exposure. The general public should be very
reassured. This despite the New York City findings of 70
percent of its samples showing asbestos levels above the EPA's
1 percent trigger level.
Isn't this a little contradictory.
Ms. Whitman. Mr. Chairman, I am not going to try to go back
almost 6 years now to second-guess the scientists at the time.
Mr. Nadler. Excuse me. It's not second guessing the
scientists at this time.
Ms. Whitman. It would be second guessing the scientists.
Mr. Nadler. No. My question has nothing to do with the
scientists. My question is to do with the fact that you are
putting out very reassuring statements saying nobody's finding
any asbestos levels above--any high asbestos levels when in
fact the only test they had at that time, the New York City
test, showed high asbestos levels above the 1 percent mark in
70 percent of the tests.
Ms. Whitman. Two things here, Mr. Chairman, and I cannot
determine based on the question what is in play either, whether
all of the samples that you are talking about from New York
City were relative--related to the dust or related to the air.
Those are two different things.
Mr. Nadler. Excuse me. Those were air samples.
Ms. Whitman. All right. Fine. Thank you. I will also tell
you that it was my understanding--we had people back on the
site. We did use New York City samples. We used New York State
samples. We used samples, as I had mentioned, from over 17
different organizations and we were taking our own samples,
which we were taking at which time? I can't tell you. I can't
go back and tell you.
Mr. Nadler. Let's go into your own samples. The EPA dust
samples, dust samples of September 14 show asbestos levels of
2.1 to 3.3 percent, which is 210 percent and 330 percent above
the EPA's 1 percent trigger level. Yet the EPA September 16
press release describes this as slightly above the 1 percent
trigger. Don't you believe that characterizing dust samples
that are 210 to 330 percent above your own standard as only
slightly above the trigger is falsely reassuring and
misleading?
Ms. Whitman. Mr. Chairman, with all due respect I can't
imagine that we would have released a statement 3 days later
that wasn't based on new testing data and results because we
were getting new information every single day. When I was on
the phone------
Mr. Nadler. The fact is, is that you did release that
statement, and these were the test results that were there at
the time.
Ms. Whitman. Well, if we are talking about dust or air,
again there was a difference with dust and air.
Mr. Nadler. These were dust samples.
Ms. Whitman. You are saying that the second statement
related to dust samples, too, or air samples?
Mr. Nadler. The second statement simply said that um--yes,
they referred to these specific tests, and they characterized
the results of these specific tests of 2.1 and 3.3 as slightly
above the 1 percent trigger. So we are referring to these
specific tests.
Mr. Whitman. I will have to take your word for that. I
haven't seen that. Recently I haven't had a chance to go back
over all that. But I will tell you again that every statement
that we made, that I made, was based on what the experts who
had a great deal of experience in this kind of response were
conveying to me.
Mr. Nadler. Thank you very much. I will now recognize the
distinguished--I will come to Mr. Henshaw in the next round. I
will now recognize the distinguished Chairman of the full
Committee, the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman, and I thank the
witnesses for their testimony. Mr. Henshaw, the September 16
EPA press release quotes you in the following way:
Our tests show that it is safe for New Yorkers to go back
to work in New York's Financial District.
Now this release implied that you said this on the basis of
the fact that some indoor tests in the Financial District
buildings were, according to the EPA, negative for asbestos.
But again, outdoor test results showed the 2.1 to 3.3 levels.
Do you believe it is practical in a dust-saturated
environment for workers to walk through debris with unsafe
levels of asbestos without somehow breathing it in or getting
it on their clothes or tracking it into the buildings?
Mr. Henshaw. Mr. Congressman, tracking materials, you will
see in that press release we talk about and caution about
tracking it back into the buildings. That was a big concern of
ours, and that's why the HEPA vacuum, as the Governor
mentioned, and the cleaning of the streets of the Wall Street
area was a significant event, to make sure that we maintain
safe work environments.
Now, our results--the results you are talking about are
referring to percent in a bulk sample. And true, we found as
high as 1.9 percent in bulk. This was a chunk on top of a
patrol car. That was the highest percentage we found of
asbestos. What we found in the workplace in the air, which is
the critical piece, if it's in a bulk, it's not going to be
hazardous unless it gets in the air and people breathe it. We
spent--starting on the 13th, our data began to measure and
monitor exposures throughout the entire Wall Street area; in
fact, from Canal Street down, and collected over the period of
time 204 samples. All of those samples showed we were well
below--we barely detected any asbestos or any fibers in the
air.
And let me clarify this, we did find fibers in the air
using our base contrast microscopy. When we used TEM, we found
out those were not asbestos. Keep in mind, there's two towers
loaded with carbon material, with fabric from wall covers, from
the cubicles, from the ceiling tiles to the curtains. There
were a lot of fibers. And when you see results as you saw in
the NYCOSH data that talks about fibers, not speciating as to
whether it is asbestos or not. And that's the confusion, Mr.
Chairman. And that's why somebody needs to coordinate this
whole effort, to make sure that we have a constant message.
Because showing samples that is using the PCM method that we
have a lot of fibers doesn't mean it's asbestos.
And so, Congressman, the answer to your question directly,
we did find some fibers in tests but they were not asbestos.
And therefore, we believed it was appropriate to open up Wall
Street, as long as we put in the right precautions, that we do
what we can to minimize the tracking and reentrainment when you
kick on ventilation systems, reentrainment of whatever dust may
be in those systems. It was safe for people to go back to work.
Chairman Conyers. Well, it was safe to go back to work if
you could get through the pollution to get to work. I mean,
what we are talking about here, sir, are the outdoor tests as
compared to the safety that you claim was on the inside. The
outdoor tests showed there was great danger of very potent----
--
Mr. Henshaw. And while our issues are workplace
environments, we knew workers were going to walk to and from
their workplace. We monitored, and we had OSHA inspectors
walking the streets of New York City on the 14th, 15th and
16th, and we did that following the 17th when we opened up Wall
Street, to see what exposures the people who are walking to and
from work might be exposed to. And sir, we did not find them
being exposed above any kind of acceptable standard, or
unacceptable standard in respect to workplace standards.
Mr. Conyers. You didn't find--you didn't know that the
outdoor test results showed that there were 2.1 to 3.3 levels
existing in the outside atmosphere?
Mr. Henshaw. When you say levels, I am not sure what you
are talking about. But I did not know of any result. We did not
find any result of fibrous per cc of air, is the units we use,
to estimate or judge whether in fact a workplace is an issue.
We did not find those concentrations. If you are talking about
a bulk sample, which represents the percent of asbestos in that
by weight of that substance or that chunk, that's a different
story, and we did find percentages. At the highest we had was
1.9 percent.
But again, Congressman, if I may interrupt, the key really
is what's in the air. That's------
Mr. Conyers. That's what I am saying. What is in the air.
In the air, let me just read------
Mr. Nadler. The gentleman's time has expired. You can ask
just this question.
Mr. Conyers. All right. Let me just follow this out. And I
thank you, Mr. Chairman. Here is EPA, Environmental Protection
Agency response to September 11. And this is dated September
16. In the fifth paragraph, air samples taken on September 13
inside buildings in New York's Financial District were negative
for asbestos. Debris samples collected outside buildings on
cars and other surfaces contained small percentages of
asbestos, ranging from 2.1 to 3.3. That's where I get that--
that's where I get it.
Mr. Henshaw. That, sir, is------
Mr. Conyers. That is what was outside. So all I am raising
is that to get inside where you claim it was safe, you had to
work--you had to walk through an environment that was highly,
highly infested with the kinds of materials that are harmful to
human beings, right?
Mr. Henshaw. Not--no, sir.
Mr. Conyers. I am not right. Well, is this statement
incorrect in the EPA release of September 16, 2001? Would you
like to take a look at it?
Mr. Henshaw. You are saying the EPA release?
Mr. Conyers. Yes, sir.
Mr. Henshaw. Well, I will be glad--but all I can--you are
referring to bulk samples, which is sediment, dust on a
surface, and one of the reasons why we recommended on Friday
that we clean Wall Street, and that's with the HEPA vacuums and
that's with the washing down of the streets where a lot of that
debris was removed.
Mr. Conyers. So you are suggesting we shouldn't pay any
attention to this asbestos ranging from 2.1 to 3.3 in the
release, that wasn't relative to any------
Mr. Nadler. The gentleman's time has expired. The witness
may answer the question.
Mr. Henshaw. Certainly bulk concentrations of an asbestos
above 1 percent is something that we need to pay attention to.
No doubt about it. And what's important is, we want to make
sure that doesn't get reentrained in the air where people are
exposed to it. And so that's why we continue to monitor. We
monitored before Wall Street was open, and we monitored after
to make sure that nothing was getting in the air. And
Congressman, we didn't find anything getting in the air.
Mr. Nadler. Thank you. Thank you. We've now been joined by
the Ranking Republican Member of the Committee, of the
Subcommittee rather, Mr. Franks, and I will now recognize him
for an opening statement because I promised I would before.
Mr. Franks. Thank you, Mr. Chairman, and I thank Governor
Whitman and Mr. Henshaw for being here. I apologize, and no one
tried to get here sooner. With that in mind, Mr. Chairman, this
oversight hearing is ostensibly to explore the legal issues
that are currently being examined in ongoing litigation
specific to the case of Lombardi v. Whitman. Initially this
case was unanimously decided by a three-judge appellate panel,
including Robert D. Sack, a Clinton appointee, but the decision
by that panel is not the final step in the litigation process,
as there will be appeals to the full Second Circuit for an en
banc decision by all of its judges and a possible appeal to the
U.S. Supreme Court after that. And while I look forward to an
exploration of some of the legal issues raised in this case, I
am concerned that our hearing today will be seen as a
constitutionally questionable or inappropriate congressional
attempt to second-guess the judiciary decision before the
appeals process has made the final determination on the merits.
The claims involve whether the EPA's public statements
regarding the quality of the air at the World Trade Center
cleanup site were entirely accurate with the benefit of 20/20
hindsight. The court determined that the EPA took substantial
measures to warn the public of environmental dangers. The court
resolved the claims as follows, stating:
Government action resulting in bodily harm is not a
substantive due process violation unless the government action
was so egregious, so outrageous that it may be fairly said to
shock the contemporary conscience. In order to shock the
conscience and trigger a violation of substantive due process,
official conduct must be outrageous and egregious under the
circumstances. It must be, quote, truly brutal and offensive to
human dignity, closed quote. The OIG report shows that the
defendants were required to make decisions using rapidly
changing information about the ramifications of unprecedented
events in coordination with multiple Federal agencies and local
agencies and governments. If anything, the importance of the
EPA's mission counsels against broad constitutional liability
in this situation. The risk of such liability will tend to
inhibit EPA officials in making difficult decisions about how
to disseminate information to the public in an environmental
emergency. Knowing that lawsuits alleging intentional
misconduct could result from the disclosure of incomplete,
confusingly comprehensive or mistakenly inaccurate information,
officials might default in silence or default to silence in the
face of the public's urgent need for information.
In essence, the Second Circuit held that it would not be
lawful to hold the Federal Government responsible for harm
suffered by rescue workers who may have relied upon information
issued by the Federal Government in circumstances in which the
Federal Government was, quote, required to make decisions using
rapidly changing information about the ramifications of, once
again, unprecedented events in coordination with multiple
Federal agencies and local agencies and governments, closed
quote. As the OIG report stated, responding to this crisis
required organizations from all levels of government to
coordinate their response efforts and to make critical public
health and safety decisions quickly and without all of the data
that the decision makers themselves would normally desire. To
impose liability in such circumstances would actually risk even
greater harm in the future because fear of liability might
deter the government from saying anything about an emergency
situation. And I hope we can all agree that nothing should be
done to force the Federal Government to remain silent in the
midst of a crisis.
I understand that Chairman Nadler held a press conference
to criticize State and local official efforts to provide for
injured 911 rescue workers in which he said, quote, the
villains are no longer the terrorists. The villains live in the
White House and in the Gracie mansion and in the Governor's
office, closed quote.
Let us be clear, Mr. Chairman, the villains are the
terrorists, the villains remain the terrorists. The terrorists
caused the harm on 9/11. We must be very careful not to equate
even unintentionally the good-faith efforts of government
officials to dutifully respond to an emergency in strange
circumstances with the vicious premeditated violence
perpetrated by blood thirsty murderers who express desire to
kill as many innocent people as possible.
Mr. Conyers. Would the distinguished------
Mr. Franks. Mr. Chairman, I look forward to the witness.
Mr. Conyers. Would the distinguished gentleman yield to me?
Mr. Franks. Certainly.
Mr. Conyers. I thank you, Mr. Franks. As the Ranking
Member, we appreciate your presence very much. What I wanted to
just make sure that we all agree on, that we're in no way
attempting to intervene with the court procedures or what's
going on in the court, and that we're not trying to obfuscate
or in any way discredit anything that is going on at this
present time in the Federal courts under the legal procedure. I
think we're all in agreement that that is not our goal here, to
interfere or even to instruct the courts. We're holding the
hearing pursuant to our responsibilities as Members of the one
Committee in the Congress that can inquire into these matters,
and I just wanted to seek your assurance that that's why we're
all here.
Mr. Franks. Well, I understand, Mr. Chairman. And I accept
that at face value. I guess I would just suggest that given the
sensibilities of the issue here that it might be better for the
courts to come to their conclusion before we begin to second-
guess them. And with that, I will yield back.
Mr. Nadler. Thank you. Let me just say that I don't think
that the Congress in the exercise of its legislative
responsibilities can or should wait for courts to decide limit
questions that are before the courts.
Mr. Conyers. Yes.
Mr. Nadler. There are at least three cases before the
courts. Our purpose today is not to influence those cases in
any way, but neither should we wait for them because we have
responsibilities to undertake, and I must comment I did say
what I was quoted as saying. And I think the terrorists--with
the terrorists, they were the villains who did what they did.
But insofar, insofar as government, as government officials in
bad faith, if they were in bad faith, acted in such a way as to
inflict bodily harm or to subject people to bodily harm in the
United States, then they also are guilty if that is the case
that happened.
I'm not saying that now. That happens to be my personal
opinion. But that's not before the Committee now. But that was
the--what I was saying there, I was not equating them with the
terrorists. The terrorists did what they did, which was
obviously heinous. But that doesn't eliminate the logical
possibility that other people compounded the damage, which I
believed to be the case. And that--and that it may be incumbent
on us as Congress to take remedial action, which is what we
have to examine.
Mr. Conyers. Would the gentleman yield?
Mr. Nadler. Yes.
Mr. Conyers. I just wanted to get the assurances and the
continued cooperation of the distinguished Ranking Member of
this Committee that I hope that he has no objection to us
moving forward with the inquiry. No one has mentioned the
courts until now. And we don't intend to invade their
jurisdiction, nor do we intend to describe or limit or instruct
them as to how they should proceed. And so we would like to
continue the comity that we've enjoyed in this Committee so far
and get your assent to the continuation of these hearings as
we're proceeding. We've got distinguished witnesses here, and
we would like this to be a bipartisan inquiry.
Does that meet with the objections of the gentleman.
Mr. Franks. Mr. Chairman, I would just say I look forward
to the hearing and what the witnesses have to say and do so
with an open heart.
Mr. Conyers. Wonderful. Now one point though. Could you
call for me our distinguished friends, Mr. Pence and Mr. Issa
and Steve King and Jim Jordan, to invite them if they are here,
to please join these proceedings because this isn't a party, a
partisan inquiry. And I don't want anybody to think that it is.
It's a bipartisan point of view in which they are entitled to
express any opinions that they hold about this proceeding. And
I don't think that the Committee serves its fullest purpose
without all of our colleagues here.
Mr. Franks. Mr. Chairman, if I could just respond to that
just extremely briefly.
Mr. Nadler. Briefly, yes.
Mr. Franks. The meeting being held--in all due deference to
the Chairman--at 1 on a Monday has been difficult for some of
our Members. As you know, I had to make great effort to be here
personally and I know all of you are here, so that leaves us
without excuse. But I do suggest to you that the particular
timing of the hearing made it------
Mr. Conyers. And I'm sorry that you were inconvenienced,
your Members, not you, but those that may not have been able to
be here.
Mr. Nadler. Let me just say, the meeting was scheduled for
1 on a Monday because that was the only time that some of the
witnesses could make it. With that, I will yield for 5 minutes
of questioning to the distinguished gentleman from Minnesota,
Mr. Ellison.
Mr. Ellison. Ms. Whitman, on September 14, the EPA had its
own workplace tested in Manhattan and found asbestos. Without
even waiting for the results, the EPA had its building
professionally cleaned. How could you say that there were,
quote, no significant levels of asbestos, unquote, in your
September 16 press release when significant amounts of taxpayer
dollars were spent to clean your own building at 290 Broadway?
Ms. Whitman. Congressman, we advised everyone who was going
to reoccupy buildings that they should be appropriately
cleaned. There was no extraordinary cleaning undertaken at our
buildings, but clearly every building in that area where people
were going to be occupying should have been cleaned. And what
we said at the time was, while we recommended professional
cleaners, if individuals couldn't afford that or didn't have
access to them, that HEPA vacs and wet wipes were the
procedures that they should undertake. But we absolutely
recommended that everybody clean the buildings. And I would
repeat that nothing extraordinary occurred with our building,
but surely it was important to get the men and women back
within who were responding in a very direct way and were
responsible for a lot of the analysis of the information and
the data on which the public so depended back into their
building, which was literally four blocks away.
Mr. Ellison. Governor Whitman, did the EPA issue a press
release and also state on its Website that residents should
clean their residences and workplace with a wet rag or a wet
mop?
Ms. Whitman. I don't recall EPA ever saying wet rag or wet
mop. EPA said professional cleaners if possible and HEPA vac
and wet wipes together. Vacuum cleaner with a special HEPA
filter and wet wipes. It is my understanding that in subsequent
retesting that those who followed those procedures, they were
found to have very low, if any, incident of remaining asbestos.
We also recommended that if people had shag carpets------
Mr. Ellison. I'm sorry, Ms. Whitman. I have limited time.
Thank you, Governor Whitman. On September 16 the EPA told New
York Newsday that its highest recorded asbestos rating for
contamination was about 4.5 percent. New York Newsday quoted
you, Ms. Whitman, as saying, quote, there is no reason for
concern. Why did say there's no reason for concern when EPA's
official own position since 1986 has been that there's no safe
level of asbestos?
Ms. Whitman. Well, as Mr. Henshaw indicated, the concern
that we had for the general public was in asbestos getting into
the air into their lungs. What we found in dust--in bulk
samples was different. Nobody wants asbestos anywhere. There's
no------
Mr. Ellison. Excuse me. Could I just say that you'd agree
with me that in the aftermath, the immediate aftermath of this
tragedy, people were scared?
Ms. Whitman. Of course people were scared.
Mr. Ellison. People were panicked, right?
Ms. Whitman. Of course.
Mr. Ellison. People wanted to know what should they do and
they wanted to know from you, that is right?
Ms. Whitman. That is correct.
Mr. Ellison. You gave them reassurances about the quality
of the water and the quality of the air being okay. Today you
come and say okay, we're talking about bulk or this or that.
But the fact is that on the September 18 press release, you
said that we're very encouraged by the results of the------
Ms. Whitman. We were.
Mr. Ellison. You gave the assurances to people. Let me ask
you this, do you agree that after those planes collided with
the towers that it caused immediately dangerous toxic levels
for people of air quality, dust and water?
Ms. Whitman. We were enormously concerned when those towers
came down.
Mr. Ellison. Right. And do you also agree today even
looking back in hindsight that the language that you used gave
people a false sense of safety?
Ms. Whitman. No, I do not agree it gave them a false sense
of safety. We were talking about air quality, the general
ambient air quality in Lower Manhattan and the impact on long-
term health. And I'm sorry if that was not what people now
looking back on see, but that was what the scientists------
Mr. Ellison. I'm sorry, Governor. I only have 5 minutes. I
would never interrupt you under normal circumstances, but I
only have 5 minutes. This is a quote from the September 18 EPA
response: Given the scope of tragedy from last week I am glad
to reassure the people of New York and Washington, D.C. that
their air is safe to breathe and the water's safe to drink. Now
that is a fairly sweeping statement about reassurance.
Do you now feel that you spoke a little bit too broadly and
a little bit too soon about the actual quality of the air and
the water?
Ms. Whitman. Every test that we have------
Mr. Ellison. Excuse me, Governor.
Ms. Whitman. Congressman, you know, it's fine to go through
the yes and noes. But I think it's important for people to
understand that these were not whims, these were not decisions
by a politician. Everything I said was based on what I was
hearing from professionals. My son was in Building 7 on that
day, Congressman. And I almost lost him. This is as personal to
me as it is to anyone.
Mr. Ellison. Governor, excuse me. I'm not going to allow
you to turn this into a personal thing. It's personal for the
people out here too, Governor.
Ms. Whitman. It's personal to everyone.
Mr. Ellison. I'm not going to stand here and allow you to
try to obfuscate the questions that I am asking.
Ms. Whitman. I'm not obfuscating, Congressman. I am asking.
I have been called a liar. I have been called a liar even in
this room today. My actions were not criminal. With all due
respect, you are sitting on a panel with people------
Mr. Nadler. The time of the gentleman has expired.
Mr. Ellison. With permission
Mr. Nadler. Without objection, the gentleman has 1 minute.
Mr. Ellison. On September 27, the USDA gave the EPA test
results that found WTC dust to be highly toxic. The WSGS--
excuse me, the USGS concluded that the ph level of the WTC dust
was as toxic as drain cleaner. Why didn't the EPA issue a
single press release about the USGS findings?
Ms. Whitman. The reference in, as I understand it again,
looking--to the best of my recollection looking back 6 years,
that statement was relative to the dust, the contaminants found
on the pile of Ground Zero, and that is where EPA was
constantly reminding all those involved that Ground Zero, the
air quality on Ground Zero on the pile was different than in
Lower Manhattan, and that those responders should wear
respirators, should wear HAZMAT suits, should take--wear eye
protective and that's--eye protection and that's why we even
set up wash stations.
Mr. Ellison. My time has expired.
Mr. Nadler. The gentleman's time has expired. The gentleman
from Arizona, Mr. Franks.
Mr. Franks. Thank you, Mr. Chairman. And thank you again,
Mr. Henshaw and Governor Whitman, for being here. Governor
Whitman, I read in the IG report that the IG, quote, found no
evidence that EPA attempted to conceal data results from the
public, closed quote. That's pretty straightforward. Is that
your understanding? How do you answer critics who claim that
the EPA misled the public about the data results?
Ms. Whitman. Well, again in that instance I would
absolutely agree with the IG's finding there because we were
providing--we had a Website up within 10 days. We had data that
was being collected by 13 different entities to synthesize. We
tried to ensure that those in the public who--and the
scientists and the public and in other parts of government at
all levels had the opportunity to look at the data that we were
looking at to be able to compare apples to apples and make
their own decisions, were we telling them the truth, was it
safe or not. So they could see what was happening in that area.
Mr. Franks. Governor, you know that the same report states
again, quote, that EPA provided public access to its monitoring
data through its public Website. I am assuming this is the one
you just mentioned.
Ms. Whitman. Yes, sir.
Mr. Franks. Which included interactive maps that could be
used to identify monitoring results. Am I reading this
correctly, that the EPA provided public access to all of its
data?
Ms. Whitman. We put everything up on the Website as fast as
we could get that.
Mr. Franks. Why did you do that?
Ms. Whitman. Because I thought transparency was of the
utmost importance. People needed to see what we were seeing,
how we were coming to the conclusions that we were, to make the
statements that we were. It was important because in science
you are always going to get second-guessed and we need people
to be able to see all the data.
Mr. Franks. Sometimes you get 10 scientists in the room and
you get 20 opinions. Up here you get 10 of us and you get 150
opinions. These scientists could have come to a different
conclusion looking at the same data about whether the air was
safe in your mind?
Ms. Whitman. Scientists certainly could. It's a little bit
like climate change. There are a number of scientists who don't
feel that that is occurring, yet the bulk of the scientists
believe that it is. It is sort of the same kind of situation.
Mr. Franks. I'm confused, as some of us, that Mars is also
increasing there, and we wonder how that's greenhouse gases.
Governor, I keep reporting, keep referencing this IG
report. But let me just reference one more. The conclusions
from the EPA draft risk evaluation completed over a year after
the 9/11 attacks have tended to support EPA's statement about
long-term health effects when all the necessary qualifications
are considered.
Do you think this means that the EPA has found no evidence
of a long-term health effect from the air in New York beyond
the Ground Zero sites?
Ms. Whitman. Congressman, there are ongoing studies on
which EPA is--in which EPA is participating to monitor the
health of the responders and those who live at Ground Zero. And
I would have to respect whatever those--those studies find. But
as yet, I have not seen any final peer review scientific
conclusion from any of those studies, those long-term studies.
But the agency I gather is part of those. I know they are
continuing to go along with those and I would bow to whatever
those studies ultimately conclude.
Mr. Franks. Well, the IG report also noted that the IG
consulted with environmental and medical expert--or medical
external experts who confirmed that such exposure to the
general public was not likely to present a risk of long-term
health risks.
Were you aware of the external experts that they had
reached these kind of conclusions?
Ms. Whitman. I was aware of what I was getting every day on
the calls, sometimes three times a day early on, from the
scientists who were analyzing the data. And sometimes it may
not seem intuitive to those of us standing around that what
they were finding was real. But I will believe the scientists.
When they tell me that they examined the data and what is safe
for humans to breathe, I will believe them. And in this
instance, I did. And I think they have been proven to be
correct in large measure, to the best of my knowledge.
Mr. Franks. Well, we've heard a lot about the White House
and its involvement in this hearing. Why was the White House
involved in crafting the press release?
Ms. Whitman. Congressman, my experience as a Governor, I
always found that in the time of a crisis you need to speak
with one voice. You need to have someone who is collating the
information and is communicating it in a reasoned way that the
public can understand, especially when you have a number of
different agencies under your purview that have responsibility
for that kind of response. In this instance, obviously you had
EPA, you had OSHA, you had CDC, you had the FBI, you had CIA.
ATSDR, you had a number of different organizations looking at a
variety of data. And it was important that that be synthesized
and communicated in a way that was coherent and that the public
could use, and I thought it was entirely appropriate to have
the White House perform that function.
Mr. Franks. If I can get under the line here, I would like
to ask, there's a letter from Mr. Bruce Sprigg, which is EPA's
chief of Response and Prevention Branch, to Mr. Kelly R.
McKinney. And that's Associate Commissioner of the Bureau of
Regulatory and Environmental Health Services of the City of New
York. It's dated October 5, 2001, which states, quote, the EPA
has recommended and continues to recommend that workers at the
site wear respiratory protection, closed quote.
Were you aware that the EPA made these recommendations to
New York City shortly after the 9/11 attacks?
Ms. Whitman. Yes, I was.
Mr. Franks. Well, my time has expired, but thank you,
Governor. Mr. Henshaw, I'm sorry I left you out.
Mr. Nadler. Thank you. I now recognize for the purpose of
asking questions for 5 minutes the gentleman from Virginia, Mr.
Scott.
Mr. Scott. Thank you, Mr. Chairman. I thank our witnesses
for being with us today. Mr. Henshaw, you mentioned the fact
that asbestos was detected and was over a certain level. Are
there safe levels of asbestos?
Mr. Henshaw. Yes, sir, there are safe levels of asbestos.
We have an Occupational Safety and Health--what we call
permissible exposure limit, which is 0.5 fibers per cc for an
8-hour average. That is our current standard with respect to
asbestos.
Mr. Scott. And you consider that safe?
Mr. Henshaw. Yes, sir, I do.
Mr. Scott. I understand that the EPA office was
professionally cleaned. Was there a recommendation that people
cleaning their own apartments use professional cleaning?
Ms. Whitman. Yes, there was.
Mr. Scott. There was?
Ms. Whitman. Yes, there was, sir.
Mr. Scott. Was that in your press release?
Ms. Whitman. It was in a number of our press releases, in
statements, and I believe that the City of New York had assumed
the responsibility for indoor air cleaning. They had asked us
not to participate in that but we worked together collegially
to help them with it, but they were doing it. And we referred
them, anyone who had questions, to New York City, as well to
their health office and they had a series of recommendations. I
also believe I included the recommendation to use professional
cleaners wherever they could.
Mr. Scott. Okay. And there was one press release that was a
legal exchange. One of the reports we have, it's Document 15,
paragraph 35. It says that the OIG representative read a
statement that the Wall Street Journal attributed to EPA's
Region 2 administrator. We have said from the very beginning,
the departments need to be professionally cleaned. The OIG
representative asked, did your office consider advising the
public through a press release that they need to obtain
professional cleaning for their indoor spaces? Ms. Kreisher
replied that, quote, it was in a press release. It was removed
by Sam.
Ms. Whitman. That was one press release, and that's
absolutely correct. It was the only time in fact when the press
releases--that I was ever made aware of a substantive
difference between the White House and EPA on what should be
communicated to the public. We had been saying prior to that
time professional cleaners. We said after that time
professional cleaners. When it was brought to my attention
that, in fact, it was recommended that this sentence be
removed, the phrase be removed, at that point in time there had
been apparently quite a bit of discussion back and forth on the
use of this sentence. It was in the afternoon, and I don't
remember, Congressman, what else was in that press release, but
I do remember thinking--there was information there that needed
to be communicated to the public. So I made the determination
rather than continue the fight, battle over that particular
phrase, to let the press release go out as it was because I
knew I was going to be appearing on, I believe it was CNBC, but
again going back in time, I don't remember which particular
media outlet I was going to be on. And I said I will use that
phrase. It appeared in every subsequent press release. But in
that one press release, that was the only time that I remember
anything of substance being taken out. The information may not
have been the exact order wording that the EPA sent over, but
it conveyed all the relevant information that the public
needed.
Mr. Scott. Do you believe there are safe levels of asbestos
exposure?
Ms. Whitman. Well, in general the EPA doesn't like to see
asbestos anywhere. But yes, there are standards that represent
safe levels of exposure.
Mr. Scott. And do you know what that safe level is?
Ms. Whitman. I bow to Mr. Henshaw's analysis of that. He's
the expert.
Mr. Scott. Now you mentioned Ground Zero and people were
going back--Mr. Henshaw, Ground Zero people were going back to
Ground Zero. Were they wearing the appropriate respirators?
Mr. Henshaw. Were all the folks wearing appropriate
respirators? Obviously, sir, no. That was our dilemma. How do
you get people to wear proper personal------
Mr. Scott. Do you communicate to them in such a way that
they were risking their lives by not using the respirators?
Mr. Henshaw. Constantly. That's why that is why we did 24/7
inspections.
Mr. Scott. Do you have any enforcement powers when people
are violating OSHA regulations?
Mr. Henshaw. As you know, we do not have jurisdiction over
the firefighters and police. So we couldn't tell them that they
should do that.
Mr. Scott. But you were aware that they were endangering
their lives.
Mr. Henshaw. That's precisely, sir, why we put together on
October 15 the partnership, which included the firefighters and
police, we put down in writing, they will follow our OSHA
standards. I can't guarantee they follow them always. This was
something that we had not done before. And we did it because
these circumstances required extraordinary efforts.
Mr. Conyers. And do you have any evidence to contradict
what I've heard that 70 percent of the first responders are
already having symptoms of asbestos and other problems?
Mr. Henshaw. Sir, as the Governor had mentioned earlier,
clearly the exposures right after the collapse of the tower
were immense. No doubt about it. Unfortunately we did not
measure, but that was, in my mind, an extraordinary amount of
exposure. When it clouded out the sky, when you couldn't see
the sun, that was--I've been an industrial hygienist almost all
my life. I keep saying, I'm not done yet. But that was an
immense concentration. And clearly those folks were exposed to
all sorts of things, even the caustic environment that was
mentioned earlier. And clearly--we just don't--we can't
quantify what that was but that clearly was an extreme
exposure.
Mr. Nadler. The gentleman's time------
Mr. Henshaw. That was the effect of the terrorist attacks,
not because of the response.
Mr. Nadler. The gentleman's time has expired. The gentleman
from Tennessee, Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chairman.
Governor Whitman, according to the Inspector General, your
Chief of Staff, Ms. McGinnis, I understood that Sam Thernstrom
provided press releases to other government officials but she
didn't know who those officials were. Do you know who in the
White House these other government officials were that the
crafted press releases were given to?
Ms. Whitman. No, sir, I don't.
Mr. Cohen. You don't know who the ultimate White House
decision-maker was on press releases?
Ms. Whitman. I assumed it was the Council on Environmental
Quality.
Mr. Cohen. The Council on Environmental Quality changed
quite a few of the releases from what your office had
suggested. And I think it's summarizing them, your office acted
as a scientist health-based group, I guess, and had
precautionary press releases. The changes were uniformly made
by the White House or the environmental quality group to less
precautionary and more reassuring. More political, so to speak.
Was that appropriate, do you believe from your perspective?
I know as a Governor you see a common--it should be a common
voice. We saw in Jaws that the sheriff told everybody it's safe
to go back in the sea, you know, we know it wasn't. Was that
appropriate for the White House to take that pro-environment,
economic, everybody come and have a nice time at the beach and
don't worry about the sharks approach?
Ms. Whitman. Congressman, with all due respect I don't
think that was ever even implied in any of the press releases.
No kind of levity, no kind of------
Mr. Cohen. I know they weren't.
Ms. Whitman. Dismissive of the threats and the concerns
that everybody had. To the best of my knowledge, as I indicated
in a previous response, the only time that there was anything
substantive that I felt was important that the public know was
in the one press release where the phrase ``use professional
cleaners when possible'' was omitted. Beyond that, as I
indicated earlier, press--what happened--we'd sit down, we'd
talk to those on-scene, we had talked to those who were
analyzing the data, we being a group at headquarters, myself,
the deputy chief of staff, the head of emergency response, the
head of the press office, we would determine what was the
appropriate message. After that, it was left to--it became a
process that was coordinated by the White House to bring some
kind of agreement of all the various agencies responding so
that how it was--how the ultimate--my concern was that the
information get out.
Mr. Cohen. Let me ask you this, Governor, the White House's
first concern was to see that the markets were open the next
day. Their first concern was that everybody could go shopping.
Don't you think that you as the EPA Administrator should have
taken a higher--you were held to a higher duty and a higher
standard and should have implored somebody in the White House
that having the market open, having MSNBC active, having
everybody feel reassured was not as important as a
precautionary note, which we now know that the precautionary
note was correct? Don't you think you had a higher
responsibility than commerce?
Ms. Whitman. Congressman, I couldn't disagree with you more
with what you just said about what the White House wanted.
Yeah, did I get a call? I reported it before. I got a call from
the White House a day after from the Office of the Economic
Advisers, which is not surprising, they're concerned about the
economy of the country saying, reminding me of the importance
of Wall Street, of opening the stock market. I indicated that
until that building was cleaned, until it was safe it would be
inappropriate, and that's the last I heard of that. It was
cleaned, it was safe, as you have heard from Mr. Henshaw, for
them to go back in, and they were allowed back in. Was it wrong
to try to get the city back on its feet as quickly as possible
in the safest way possible? Absolutely not. Safety was first
and foremost, but we wouldn't let the terrorists win.
Mr. Cohen. Please. I'll take care of that. I appreciate
your help. I mean, the terrorists, you talk about a uniform
voice. I have heard the terrorists twice. We have got a uniform
voice here. The original EPA language stated that dust samples
showed levels of asbestos ranging from 2.1 percent to 3.3
percent. EPA views 1 percent of asbestos as containing material
to be dangerous. This language was deleted and the White House
added, our tests show it's safe for New Yorkers to go back to
work in New York's Financial District. Isn't that a big change
from 200 to 300 percent higher than what EPA recommends to
``it's safe to go back to work''?
Ms. Whitman. Congressman, I can't tell you, again, I'm not
looking at the press release, I don't know what it said. I know
that when contacted by the White House and asked if it wouldn't
be safe for reoccupation of the building by the Friday after
the Tuesday after the attacks, we indicated that until the
buildings were safe and had been cleaned and were safe that it
wouldn't be appropriate, and as Mr. Henshaw has indicated,
cleaning took place, testing was done, and it was safe. It
would have been inappropriate to say you can't go back if it is
in fact safe. Safety is first and foremost.
Mr. Cohen. Are you submitting, with all you know today,
that it was safe to be back in that area other than on the
pile?
Mr. Nadler. The gentleman's time has expired. The witness
may answer the question.
Ms. Whitman. I said yes.
Mr. Nadler. Thank you. The gentleman from New Jersey, Mr.
Pascrell.
Mr. Pascrell. Thank you. Governor, there's no one in this
room that believes--I don't believe--knowing what I know about
you, that you feel any less or are any less sensitive to the
workers and the folks that came from New Jersey, many of them,
and the first responders. That's not the issue. The issue is
this, that you said there was no conspiracy, you said there was
no White House interference. Yet let me simply repeat what your
own IG stated, your own. Quote, the White House Council on
Environmental Quality influenced the information that EPA
communicated to the public through its early press releases
when it convinced EPA to add reassuring statements and delete
cautionary ones. Tables II-4 and tables II-5 in the IG's report
is very clear about that. And a letter that we sent in 2003,
and another letter we sent in 2006 to the Attorney General, we
never got really a response on. I don't remember a response. Do
you?
Mr. Nadler. None.
Mr. Pascrell. The Associate Administrator Kreisher, K-R-E-
I-S-H-E-R, told the IG there was a conscious effort, quote, to
reassure people, and that came from the Administrator and the
White House, unquote. She told the IG that, quote, felt extreme
pressure from the White House. You are stating today again that
there was no extreme pressure from the White House, Governor
Whitman. Is that correct?
Ms. Whitman. Congressman, I'm saying that I felt no extreme
pressure from the White House. And I think if you'll go
further------
Mr. Pascrell. Why does the Associate Administrator feel
that way? Why does Kreisher feel differently than you?
Ms. Whitman. You will have an opportunity to ask her that
in a minute. She is on the next panel.
Mr. Pascrell. I certainly will. We're talking here about
credibility and accountability. Let me ask you this question,
do you think the City of New York acted responsibly?
Ms. Whitman. I think the City of New York did absolutely
everything in its power to do what was right by the citizens of
New York.
Mr. Pascrell. So now we're in a different stage since------
Mr. Nadler. I would remind people. The gentleman will
suspend. I would remind people again no demonstrations.
Continue.
Mr. Pascrell. Mr. Chairman, I don't lose time, do I?
Mr. Nadler. No, no, no.
Mr. Pascrell. I had the honor to serve on the Homeland
Security Committee for 4 years. We went into this certainly not
in the depth that this Committee's going to go into it. And
Chairman at that time it was Peter King. It just didn't seem
right, what was going on and what we were hearing. If you've
read the reports from Mount Sinai, two, a couple of reports--by
the way, did you read the reports from Mount Sinai about those
people who worked------
Ms. Whitman. I have not read the reports.
Mr. Pascrell. Let me recommend them to you. I say that in
all sincerity. Because I conclude after reading the two reports
that I read, it might have been more, that the people are not
making these stories up. The people are not claiming that their
illnesses or sicknesses are coming from something other than
they felt their work in the area. That's very dangerous, and I
think you'd agree with that, very serious, and we have a
responsibility in the government to protect and to prevent
things from happening. If these people are correct that they
suffered these things, then I don't care what reports you tell
us about. I don't care what evidence you present. The evidence
is that people I'm convinced are not lying, that they are sick,
that they have had very difficult situations in breathing,
pulmonary problems. I've talked to these people myself,
Governor. They're not making this stuff up.
Ms. Whitman. Congressman, I would never say they were
making it up. And I have talked to them as well.
Mr. Pascrell. Well, good. Now that we agree------
Ms. Whitman. That's one of the reasons why we continue to
say that those working on the pile should wear respirators.
Mr. Pascrell. But they all didn't. And the judge who
handled the case--and in conclusion, I want to make this point
very clear. The judge who handled the case that was brought
against you and against the EPA was very clear. He said this:
``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, that there
would be no health risk presented to those returning to those
areas shocked the conscience.'' That's what he said. I didn't
say that. Nadler didn't say that. King didn't say that. That's
what he said. He also said, ``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 risks and other dire consequences was conduct
sanctioned by our laws.''
And let me tell you, something, Governor, very clearly.
There is a reason, there is a reason for this happening. And
there's a reason for why this judge said what he did. And let
me tell you also, you know that this Administration that you
worked for has very little credibility and accountability. So
you wonder, you don't wonder why we ask questions about what
they were--what was coming out. We wanted one voice. Give me a
break. We're talking about people here. We're talking about
families. We're talking about human faces. And you know that
just as well as I do. I ask you, come clear, clear the air so
that we can all go forward.
Mr. Nadler. The gentleman's time has expired. The witness
may answer the question.
Ms. Whitman. Thank you. First of all, I would just like to
correct, it was a she, that particular judge, and there was
another judge in the Southern District Court on the same day--
----
Mr. Pascrell. I apologize for that, Governor.
Ms. Whitman. Congressman, there was a judge in the Southern
District Court on the same day looking at the basic same fact
pattern came to a very different conclusion. She did not look
at fact. I think you are a lawyer, Congressman?
Mr. Pascrell. No, I'm not. No, I'm not.
Ms. Whitman. I'm not either. That's one of the few things
we share, Congressman. Neither one of us are.
Mr. Pascrell. I have two sons who are lawyers. I don't hold
it against them.
Ms. Whitman. One of the things that a judge must take as
fact in that kind of the proceeding are the allegations by the
plaintiffs. They don't look at fact. They don't hear testimony
on it. They have to take that as fact and she was adjudicating
whether or not------
Mr. Pascrell. Well, I'm glad someone from the
Administration, past and present, believes that we should rely
on science. That's what we will do.
Mr. Nadler. The gentleman's time has expired. The
gentlelady from Florida's recognized for 5 minutes.
Ms. Wasserman Schultz. Thank you, Mr. Chairman. Mr. Henshaw
and Governor Whitman, I in my other role serve as the Chair of
the Legislative Branch Appropriations Subcommittee and I say
that because we have just been through a process by which we
are having to make sure that we can now take care of tunnel
workers who were exposed to very high levels of asbestos in our
tunnels while working on the Capitol Visitor Center site as
well as the site leading to the Capitol power plant. And for
years we battled the Architect of the Capitol, who refused to
do anything about it or acknowledge that there's a problem, and
now we know that we have tunnel workers who were exposed. And
we're going to have to deal with that to the tune of hundreds
of millions of dollars, both to clean up the site and make sure
we can take care of those workers. So I have spent a little bit
of time on this and I wanted to lay that out in that context.
Mr. Henshaw, at the Pentagon my understanding is that OSHA
enforced regulations requiring the use of respirators and then
no one became sick. But at the World Trade Center site OSHA
regulations were not enforced and 70 percent of the first
responders are now sick. So why did OSHA not enforce the law in
New York with respect to the non-city or State employees on the
site despite repeated requests from, what I understand from the
city to do so? And given the fact that thousands of people are
now sick, do you now believe that OSHA's nonenforcement of the
respiratory protection standard at Ground Zero was the correct
course of action?
Mr. Henshaw. Congresswoman, you probably missed my opening
statement. But Virginia has a State program, and the State
program also has authority to enforce with firefighters and
police. We in the Federal system do not have the authority to
enforce with firefighters and police. The municipal employees,
public sector are now covered under the OSHA Act, as you know.
Number two------
Ms. Wasserman Schultz. The EPA did have the ability to take
over the site at the point that they felt that--and that is
under Presidential Decision Directive 62, Emergency Support
Function 10, and the National Contingency Plan under CERCLA,
EPA could have taken over control of the site from the city as
the lead agency if they felt that the city was not properly
protecting their workers. So they certainly had the ability to
do it, and you chose not to. So if you are saying that the law
wasn't structured in New York to allow you to do that, then why
didn't EPA step in and take over?
Mr. Henshaw. First, I can't speak to why EPA didn't step
in. And if you want------
Ms. Wasserman Schultz. I will have Governor Whitman answer
then.
Mr. Henshaw. If I can complete the other part of your
question, previous question, in respect to enforcing, even with
the nongovernment employees or nonpublic sector employees,
which were the contractors, the four primary contractors, that
were at the site. We met with them the day after. They produced
safety and health plans. We coordinated those safety and health
plans. We got an agreement up front that we were going to
follow one safety and health plan which has required the use of
respiratory protection.
That plan was put in place and signed by all parties
eventually on October 15. Yes, Congressman, it was signed by
the 15th. That plan, the contractors were the ones that were
putting that together. We did not enforce--and that's why we
had 70 people on the ground for 24/7 for that 10-month period
when we saw--when we did inspection and found they weren't
wearing respiratory protection, we told them to put it on and
we also got a few of them removed from the site because they
weren't wearing respiratory protection.
Again this was the contractors. We had an agreement up
front.
Now, sir, I'm not a lawyer either and I don't want to
employ any more lawyers. And as you know if we go through
enforcement, we have to develop the evidence, we have to
present it, issue the citations, they have 15 days to contest
the citations. And then it goes through the administrative law
judge and ultimately possibly to the review commission. That
could take years. And we did not have seconds. I was there, and
I agree 150 percent, this was the best approach to make sure we
had immediate compliance. And that's why we put 1,100 people on
the ground to make sure that they were complying.
Now, in the earlier days it was very, very difficult
because there were a lot of issues.
Ms. Wasserman Schultz. Mr. Henshaw, when you are talking
about exposure to that type of environment, you don't have the
luxury of letting that type of time pass. The more time passes,
the more people are exposed, and the more likely they are to
get sick down the road. So even a lapse of a few weeks made a
significant difference in people's health. And Governor, I
would like to ask you, because I don't think it has been
covered before I got here, why is it that EPA didn't take in
and step over and use your legal authority to make sure these
things were taken care of? Because that is a great concern to
me.
Ms. Whitman. Congresswoman, under--as you know, the EPA
would have under certain circumstances had the authority to
take over the site. What had to be proven in order to invoke
the CERCLA, the Superfund Act, substantive--substantial and
imminent danger, and the readings that we were getting
relative--and this was relative to the overall air, I'm talking
more about outside of the pile, were not indicating that. And
we were working in a collegial fashion with the City of New
York.
Again, as far as the workers on the pile, what our--we were
tasked by OSHA to do the--I mean, excuse me, by FEMA to do the
health and safety monitoring, to monitor the air. And we did
that, and then we provided respirators.
Ms. Wasserman Schultz. When it comes to imminent--
substantial and imminent danger, are you talking about
immediate death, horrible sickness within weeks? Because
mesothelioma, the cancer that is the result of exposure to
asbestos, does not manifest itself substantially or
immediately. It could be years, but it's almost certain. So how
is it that you didn't step in and exercise your authority given
that knowledge, which has been known for years?
Mr. Nadler. The gentlelady's time has expired. The witness
may answer the question.
Ms. Whitman. Congresswoman, that was based on what the
interpretation of what our legal ability was to act by--in
consultation with counsel at the time. We did have
conversations about invoking Superfund and determined that
frankly, the other part of it was, even if we had it, given the
fact that we were trying to work in a collegial way with New
York, I'm not sure the public would have stood with my taking
New York to court to take Federal control of the site. But I
can't speak to that because that would be supposition on my
part.
We did look at it and didn't feel the legal basis for
exerting that existed. That's what I was told.
Mr. Nadler. Thank you.
Thank you. We will start the second round of questions and
I yield myself--well, we won't start the second round of
questions. I recognize the distinguished gentleman from Iowa.
Mr. King. I thank the Chairman, the distinguished gentleman
from New York. I want to make my short confession here in that
and I just arrived on the scene and there are many pieces,
details, of this that I haven't had an opportunity to
accumulate and sort in as rational an approach that I would
like to. I didn't want to pass up this opportunity, Mr.
Chairman. What I'd like to do is, if I could just direct a
question to Governor Whitman.
The narrowness of the questions that have been asked at
this point: Is there something you would like to address that
you haven't had an opportunity to speak to?
Ms. Whitman. What has always been frustrating is that I
believe that the men and women of the Environmental Protection
Agency were heroes as much as everyone in the way they acted
after that and the kind of work they did, going down. They were
on the pile, as far as I can recollect, on an almost daily
basis. We had people on the site wearing monitors, trying to
convey the best information. We tend to forget, looking back
almost 6 years, the chaotic and emotional nature of this event.
It was unprecedented. We were doing the very best we could,
putting out information as fast as we could get it to the
public, with the best interpretation of scientists who were not
neophytes at this.
While we had never faced something of the magnitude of the
Twin Towers coming down, the professional men and women of the
Environmental Protection Agency have responded to crises all
around the world, and they were in Oklahoma City when the
buildings came down. They know the kinds of things to look for,
they make appropriate scientific-based assumptions based on
what they know and the readings they are getting. To me, it is
really sad that their reputation is being so undermined and so
questioned when I believe they did an extraordinary job.
Mr. King. Governor, I thank you for those comments and I
reflect upon a number of other incidents across the country
where in the aftermath firemen charged the fire. And we know
how many of them lost their lives because of their selfless
dedication to their duty, without question about measuring the
risk.
I've seen it happen on a smaller scale in the district that
I represent and this is the aftermath I understand, but also
there have been many Monday mornings since then that have
passed to get to this point. It is my view that we should
measure the circumstances in the time that it took place and
also measure the dedication of the people who made those
decisions and question what they had to work with at the time
and the political climate that we were in, well as the
emergency situation that was there.
How could anyone--I pose this question to you, Governor:
How could anyone argue that we shouldn't have engaged in the
recovery operations until we had a definitive response,
definitive understanding of all of the implications that might
have unfolded?
Ms. Whitman. Congressman, I don't think anybody would.
Obviously nobody did. The men and women who went in to respond
to that--and many of them were people who were there because
they worked for the Port Authority of New York and New Jersey,
and I have had the opportunity to work with them and they
didn't come back out of those buildings. They were true heroes
and we owe them a debt of gratitude. And for those who did come
out, but spent then months on that pile, this was a response
where I believe every level of government did their very best.
To say that anyone is perfect, that's not within the
purview of mankind. But to then say that because there might
not--to say that no one, not everyone is perfect in every
instance, although I think we did an outstanding job, to say
therefore it was malicious and with forethought and intent to
mislead is an extreme--well, I think it is dangerous and it is
going to be hard for people, if we should ever suffer another
attack, for people to trust their government.
Mr. King. I leave with you that conclusion, Governor. I
appreciate your testimony; yours also, Mr. Henshaw, and I yield
back the balance of my time.
Mr. Nadler. I thank the gentleman.
I'll now begin the second round of questioning. I yield
myself 5 minutes.
First of all, let me make a couple of comments on what was
said before I get into my questions. Mr. Henshaw, you talked
about 70 percent of the victims and you talked about people
caught in the plume and it was the terrorists' fault. But the
70 percent was not of people caught in the plume, the 70
percent of people who are sick are 70 percent of the first
responders who were not caught in the plume. They are sick
because they worked in the pile for 40 and 50 days without
proper protection, so that is not the same thing. The people
who were caught in the plume lots of them are sick, but the 70
percent of the first responders who were not caught in the
plume, who did not inhale anything toxic on 9/11, but who
worked there 40 and 50 days later, they are now sick because
they worked without proper protection from OSHA or EPA or other
agencies of government.
Second of all, I must comment on Ms. Whitman's claims that
EPA constantly told people to get a professional cleaning of
their homes. There were no such recommendations in any EPA
press release or on the 24-hour hot line or in any statements
that we could identify before November 26th of '01.
EPA region II Acting Administrator Kathleen Callahan
testified at a New York City council hearing on November 1,
'01, only about the New York City instructions to clean up,
that people should clean up their apartments and their places
of business with a wet rag and a wet mop, and made no
distinctions in her testimony about levels of dust.
In response to January 2002 Freedom of Information Act
request, EPA could not produce any publicly disseminated
document that either assumed the dust to contain asbestos or
told people that they should use professional contractors if
there is more than minimal dust. So unless you can provide to
this Committee something dating before November 26th, 2001, I
would hope you would not repeat the untruth that EPA was
constantly telling people to get professional help. They were
certainly not doing so in anything that we have been able to
identify before November 26th.
Ms. Whitman. Congressman, I will attempt to get you the
tape of October 26, an MSNBC interview that I gave that talks
about that. I'll get it to you.
Mr. Nadler. And October 26, if you said that on October 26,
that's a month and a half after you'd given the wrong
information.
Now, EPA press releases at its Website referred residents
and employers returning to their homes and workplaces to New
York City Department of Health guidelines that advised people
to remove dust from their homes and workplaces using a wet mop
or a wet rag.
Now, Mr. Henshaw, on January 31, 2002 you wrote a letter to
President Peterson of Local 78 of the Asbestos Workers Union
and you said the following: In that the materials' referral to
dust--he had asked whether dust found in people's homes should
be considered asbestos containing material. You wrote the
following: 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. Therefore,
you concluded, the dust contained asbestos must be removed by a
competent person and be disposed of properly.
Now, Mrs. Whitman, the IG report, as was noted before, said
that a recommendation to obtain professional cleaning was
deleted from an EPA press release by a White House official. We
will get into that in Panel II. The EPA Website was constantly
referring people to the New York City Department of Health
recommendation to clean up their apartments with a wet mop and
wet rag.
Now, Mrs. Whitman, isn't it a fact that EPA prosecutes
people all the time for illegal removal and disposal of
asbestos?
Ms. Whitman. Yes, yes.
Mr. Nadler. If the EPA saw removal crews dumping asbestos-
containing material in the trash, wouldn't the EPA prosecute
them?
Ms. Whitman. I would presume they would.
Mr. Nadler. Then given that Mr. Henshaw's letter properly
stated that all World Trade Center dust must be presumed to be
asbestos-containing material, and that therefore all asbestos
regulations apply, and since EPA's own 1986 regulations state
that there is no safe levels of asbestos, how could EPA urge
people, how could they permit the City Department of Health to
urge people to illegally dump asbestos-containing material in
the trash and to illegally clean it up without being licensed
to do so or without being properly protected?
Isn't that illegal advice for which you would prosecute
people in the normal course of events?
Ms. Whitman. Congressman, no, I am not a lawyer so I can't
tell you whether counsel would have advised under those
circumstances to bring charges against anyone who was trying to
dispose of the dust.
Mr. Nadler. Let's rephrase the question. Isn't it clearly
illegal for people who are not licensed to do so, and are not
properly protected, to remove asbestos-containing material and
throw it in the garbage?
Ms. Whitman. Congressman, I actually cannot answer that
question. I am not a lawyer.
Mr. Nadler. Mr. Henshaw, can you answer that question?
Mr. Henshaw. I don't know if I can answer that exact
question, except that letter was in response to invoking what
the standards are required for hazardous waste. And that wasn't
the case under these circumstances.
Mr. Nadler. What wasn't the case?
Mr. Henshaw. That this was a hazardous waste site.
Mr. Nadler. It certainly was.
Mr. Henshaw. It was hazardous, but it wasn't declared to be
a hazardous waste site.
Mr. Nadler. It wasn't declared to be hazardous site, but
nonetheless your letter stated that since there was asbestos in
the World Trade Center, you must presume that the dust from it
contained asbestos. And the law would simply operate to say if
it is asbestos-containing material, you must dispose of it
according to the law.
We will get to that in Panel II, though. But my conclusion
is this: That was illegal advice, not to mention unsafe. My
time is expired, but I permit you to answer the question.
Mr. Henshaw. Thank you very much. We were operating under
1926, which is construction standard for asbestos, those are--
that's the standard which we were operating under during the
World Trade Center events.
I would also like------
Mr. Nadler. And, therefore, what------
Mr. Henshaw. And that required based on the assessment,
based on exposure assessment, and our assessment was we did not
find asbestos concentrations in those workplaces. And therefore
the appropriate--we had in the cleanup operation scope A and
scope B. If you read further in the discussions, you will hear
scope A and scope B. If there was scope A, what was visible
dust, then we would recommend respiratory protection. If it was
scope B, which is nonvisible dust, then we didn't require it.
I'd like to go back------
Mr. Nadler. My time is expired.
Mr. Henshaw. But during your time you raised the issue
about 70 percent.
Mr. Nadler. I'll have to get to that later. My time is well
over-expired.
Mr. Franks? Mr. Franks is recognized for 5 minutes.
Mr. Franks. Thank you, Mr. Chairman.
Let me just start the second round here by saying that I
know that anyone who's gotten sick as a result of this tragedy
is an ancillary part of it. I don't want it ever to be thought
or assumed that there's not a great concern on my part and, I
am convinced, as well as those members of the panel here today.
But I think what is disturbing me is that somehow, Governor, as
you put it earlier, that there is being attached to this
tragedy some malicious part, malicious motivation on the part
of the EPA to somehow either not care or just deliberately do
things that would harm people in the aftermath of this tragedy.
I've heard things as outrageously ridiculous as that 9/11
was orchestrated by the American Federal Government. You hear
things that are stupid beyond degree, and yet it seems that
there are those in certain quarters willing to say them with
great conviction.
So I just--I want to register my disgust with people that
would deliberately attach a malicious attitude on the part of
government officials that were trying, trying to respond to a
tragedy that beggars the description of all of us.
With that said, I am particularly concerned about some of
the things related to the White House involvement and press
releases. The 9/11 Commission Report at note 13 on page 555
already examined this issue and they concluded as follows: All
the White House-reviewed process resulted in some editorial
changes to the press releases. These changes were consistent
with what the EPA had already been saying about the White House
clearance. There were disputes between EPA's communication
person and the White House coordinator regarding those press
releases. But the White House coordinator, however, told us--
this is the 9/11 Commission--that these disputes were solely
concerned with process, not the actual substance of the press
releases. Former EPA Administrator, Christine Whitman, agreed
that the White House coordinator--agreed with the White House
coordinator, the document supports this claim. We found no
evidence of pressure on the EPA to say the air was safe in
order to permit the markets to reopen.
So I guess, Governor Whitman, I would ask you, hasn't the
9/11 Commission already looked into this and concluded that
there was no wrongdoing?
Ms. Whitman. Congressman, the 9/11 Commission did a very
thorough investigation of the entire tragedy. I have read that
word for word, been through the entire 9/11 report, and I think
they were very accurate in their portrayal of the response of
the Environmental Protection Agency and the other levels of
government to this unprecedented attack and tragedy.
Mr. Franks. Did anyone within the EPA ever complain to you
that they believed that EPA's public statements about the test
data were false and misleading.
Ms. Whitman. To the best of my recollection, I don't
remember anyone ever coming to me within the Agency and saying
that. To the best of my recollection.
Mr. Franks. Related to the lawsuits, isn't it true that two
of the lawsuits filed against the EPA and you personally, one
of them has been thrown out of court and the other one is on
appeal with the same court that threw out the first one?
Ms. Whitman. Yes, it is.
Mr. Franks. Let me just conclude here with a quote from the
IG's statement and New York Times: ``We looked at a lot of
things and we only came up with those very few things that we
talked about, and what that says is that the EPA did a really
good job. I don't think you can read five pages in that report
without us talking about the fact that it was an unprecedented
thing.
Also an official from the New York City Department of
Design and Construction said about the EPA's response to 9/11
that it was ``phenomenal'' and that the EPA's response crews
were on top of every issue under EPA's mandate. And you,
Governor, led this agency through those tough times and, for
whatever it is worth to you, I would like to try to applaud
your conduct.
Ms. Whitman. Thank you, Congressman. Could I do one follow-
up response to the Chairman?
Mr. Franks. Certainly.
Ms. Whitman. When you indicated that we were misleading and
not providing the information to the public on the cleanup, I
would refer you to a 9/16/01 statement where we did refer
people to the New York City Department of Health, they were the
ones who were leading for New York City, where they
specifically called for a professional cleaning of the
buildings. New York City did do that. They had that on their
Website. We were deferring to them. I just want to make sure
that you understood the full picture there, that New York City
was doing this as early as 9/16.
Mr. Nadler. Time for the gentleman has expired.
The gentleman from Michigan, Mr. Conyers, Chairman of the
full Committee is recognized for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman.
We are trying as best we can as a congressional Committee,
to recreate as accurately as we can recall, the circumstances--
and in some ways they are complicated--about what happened
following this disastrous tragic attack upon our country in New
York.
Governor Whitman, you said that New York City was not
properly protecting its workers; is that accurate?
Ms. Whitman. I don't recall ever making a quote to that
effect, no. Not using those words. New York was the primary
responder; I did say that, yes, because that was how the
emergency response works out, that's how it happens, that they
are the primary responder. But I don't think I ever blamed--and
Congressman, I can understand how you might be misinformed on
that, because the press is dying for a fight here.
Mr. Conyers. Well, I am dying to get Katie Couric and your
conversation on 60 Minutes------
Ms. Whitman. Certainly.
Mr. Conyers.--on September 2006 accurately interpreted. Let
me review that with you.
Couric: The Environmental Protection Agency is to protect
people from the environment.
Ms. Whitman: Right.
Couric: Did you really do it?
Ms. Whitman: We did everything we could to protect people
from that environment and we did it in the best way that we
could, which was to communicate with those people who had the
responsibility for enforcing what we were telling, saying
should be done. We didn't have the authority to do that
enforcement, but we communicated that to the people who did.
Couric: But who had the ultimate authority over the site?
Ms. Whitman: Really it was the city; it was the primary
responder.
Do you recall that?
Ms. Whitman. Yes, I do.
Mr. Conyers. Okay.
Couric: Did your people do enough to call the people who
were overseeing the site, i.e. Mayor Guliani and city
officials, and say, damn it, we have got to protect these
people?
Ms. Whitman: Oh, EPA was very firm in what it communicated,
and it did communicate up and down the line.
Couric: In no uncertain terms?
Ms. Whitman, no uncertain terms.
So if this were the case, does it not appear that it was
the city that was not properly protecting its workers?
Ms. Whitman. Congressman, my response is, those are all
accurate, to the best of my knowledge; that the city was the
primary responder, and as I indicated, that's--we conveyed the
information about the importance of wearing protective gear on
a regular basis to those who had the most direct oversight of
the responders on the pile. There were mornings it's my
understanding up in Region II with everyone.
Again, this was a highly emotional time and I fully
appreciate your sentiment of wanting to see how we do better,
and I hope that one of the things that will come out of a
Committee like this is whether they want to call it a line item
or whatever, but a real focus on how do we make respirators
that don't clog, that aren't cumbersome, so responders will
wear them without worrying about it.
These were people who were trying to save their brothers
and sisters. These respirators inhibited communications. They
did clog. They were hot. Those were warm days in the September,
early October days. There were reasons.
Nobody--again, we all seem to want to always find blame,
somebody to blame--that's the terrorists over and over again--
but there are some very good things we can do: Get HAZMAT suits
that are not cumbersome, that allow them to do their job and
that are safe. Those are the kinds of things that we ought to
be looking at.
Mr. Conyers. Well, did you------
Mr. Nadler. The time for the gentleman is expired.
Mr. Conyers. Could I get an additional minute?
Mr. Nadler. By unanimous consent, without objection, the
gentleman is yielded 1 additional minute.
Mr. Conyers. I have got a number of minutes, but here is
what Mayor Guliani said on September 12, 2006. And I am not
trying to be provocative, but if we don't straighten it out
with you, I don't know who to go to except for Katie Couric
herself. But Guliani also lashed out at the former
Environmental Protection Agency Administrator for trying to
blame him. That's what he said.
``What I remember from Cristine Whitman is her saying that
the air was fine,'' he said, ``and her saying that quite
prominently over and over again, and insisting on it.''
Now, that's why I raised the question in the way that I
did. I wasn't trying to put words in your mouth.
Can you help me with that response before--the Chairman is
raising his gavel again.
Ms. Whitman. I would be happy to.
Mr. Nadler. The gentleman's time is expired, but the
witness may answer the question.
Ms. Whitman. I would be happy to, Congressman, once again.
There are two different things we are talking about, the pile
and ambient air quality in Manhattan in general. One of the
things that I learned, as I am sure you have, is not to respond
to purported allegations given to me by reporters and the
press, because usually we find that those are taken somewhat
out of context, and we find that people weren't really blaming
other people in the way that is implicated or implied by the
way the question might be asked. So I don't think the mayor is
blaming me. I am certainly not blaming the mayor. I don't think
that that is a fruitful thing in which to engage.
Mr. Conyers. In other words, you don't think he said it.
Ms. Whitman. I don't think he said it relative to the pile,
certainly relative to the ambient air quality in Lower
Manhattan in general, because that's what I said.
Mr. Nadler. The gentleman's time is expired. The gentleman
from Iowa is recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman. I think most of us on
this Committee have looked upon that tragic smoking pile of
rubble and, later, into that smoking hole of rubble. I can't
imagine anyone not thinking it was a war zone, that it was a
war zone. I can't imagine anyone not thinking that did not put
us at war right then, at that moment of impact, on that day.
As I look down into that smoking hole, I think back across
our history and what did it mean? The first word when I found
out about the first plane--actually the second plane that hit
the Twin Towers, the first one was, ``oh my God, what's
happened to a passenger plane?'' The second one was my
passenger who was with me said ``Pearl Harbor.'' The scope of
the whole thing rolled into his head instantaneously.
I spent my Father's Day weekend down to the Civil War
battlefields at Manassas. And the first Battle of Manassas as
it is known up on the south side of the Mason-Dixon line and,
as I learned, the Battle of Bull Run, there was a momentous
time in history and a lot of people think that the Civil War
might have been over within months instead of years, at the
cost of thousands of lives rather than hundreds of thousands of
lives, if the battery that protected the right flank of the
Union had simply received the order to fire on the charging
regimen of, I believe, the 32nd Virginia. That order was
apparently never issued, but no one really knows because every
one who defended that battery was killed within a 10-minute
period of time. The Union line was overrun and the first Battle
of Bull Run was won by the Confederates and we launched
ourselves on a tragic path of American history.
What's interesting about that is Congress held hearings on
that battle and they held hearings on why the order wasn't
given. If it was given for that battery of cannon-to-fire-rate-
shot, how it might have turned history if it had just done
something different.
I read that history down there, and I think how could
Congress go back and be a Monday morning quarterback and even
put themselves into the circumstances of the troops who lost
their lives that day or those who survived the battle. And it
is different when you are at war, it is different when
decisions have to be made on the spot, and it is different in
the aftermath. And this Nation had needs.
And I am trying to imagine what it would be like, with a
city that covered with ash, to file charges against someone for
not doing a proper EPA cleanup when they maybe lost their wife
or husband in the Twin Towers? How could you bring that kind of
enforcement from the EPA? And I guess that's really where my
question is. I ask you that question, Governor Whitman, because
I'd ask you again: Can you set the scene, how would that have
been, if you would have followed the path that seems to be
recommended here by some of the members of the panel, what do
you think would have been the reaction of the public, of the
President, of the Congress? Do you think you would have been
called before hearings before this Congress if you had punished
people who maybe didn't follow all of the letters of the
regulations of the EPA and the cleanup in the aftermath,
especially in the first couple of months afterwards?
Ms. Whitman. Again, Congressman, it is so hard to speculate
about what might have happened or might not have happened. But
given today's atmosphere I would have to say, yes, I would have
been probably brought to Congress long before this.
Mr. King. Governor, that's my speculation too. It strikes
me that the circumstances that you found yourself in, that
history called you to, were a no-win situation. Whichever side
of the argument that might have come down, there were going to
be a lot of questions, a lot of recriminations.
And what is different about this era than the Civil War
era, is we're a litigious society. Nobody was going to file a
lawsuit at the beginning of the Civil War or in the aftermath,
but today we have a lot of litigation that goes on. We have
people that are looking for these kind of opportunities, people
that advertise for these kind of opportunities. And the
financial incentive that's there is part of the equation.
And I am not impugning anyone's integrity here, we know, it
is part of the equation. We deal with that debate in this
Committee. We have every year since I have been here. So I
think we need to put this in a proper perspective, being that
we were at war, we still are at war, and decisions had to be
made on the spot. And to go back and, by the way, engage
ourselves in a hearing here that may well affect the results of
litigation, I think is something that we have refrained from in
this Committee, but it is happening here today.
I would ask Mr. Henshaw if he'd comment on that.
Mr. Henshaw. Congressman, I agree 100 percent. I came to
New York on Thursday after driving all night from Wisconsin,
and I had a really deep appreciation of what some of those
folks were going through. Incidentally, Congressman, Mr.
Chairman, your people in New York were outstanding individuals.
I went to some of the candlelight vigils. I have the utmost
respect from New Yorkers. I grew up in Delaware and on the east
cost, but I have the utmost respect for New Yorkers. When I
arrived, we're trying to get a sense of how we can add value
and save lives and reduce injuries and illnesses. Quite
frankly, one of the purposes behind this ought to be how can we
move forward.
We had firefighters tell us, we don't need civilians to
tell us how to do our job. And it's not because--I went through
fire school------
Mr. Nadler. Could the witness please------
Mr. Henshaw. I am wrapping up.
My point is I have the utmost respect for those
individuals. We did not train them on wearing negative pressure
respirators, and during an emergency you are not going to add a
new element to their training. You just don't do that. And so
the fallacy here is we did not prepare them adequately to deal
with those kinds of conditions.
And so the future ought to be how can we train them to put
on the negative pressure respirators because we did not train
them prior to that, and that's where we need to focus on. I
yield back.
Mr. Nadler. I thank the gentleman, I now recognize the
gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Governor Whitman, you indicated that the 9/11 Commission
had exonerated the EPA.
Ms. Whitman. No, I don't believe I used the word
``exonerated,'' Congressman. I think I said they had done a
very thorough report on what happened.
Mr. Scott. Okay. There is one statement in a footnote that
said we did not have the expertise to examine the scientific
accuracy of the EPA pronouncements in the press releases. Is
that in their report?
Ms. Whitman. Yes, that's in the footnotes as you allude to,
as I recall. I don't recall every footnote.
Mr. Scott. Mr. Henshaw, just to get a couple of things on
the record for clarification. I understand you say that you
knew when the workers were at Ground Zero, working without
respirators, that you were aware that they were in eminent
danger for health problems; is that right?
Mr. Henshaw. No, sir, I did not say that. In fact, what our
requirements were to wear respiratory protection. And to answer
the question of the Congresswoman about citation, we did not
find many samples above our standard able to cite.
Mr. Scott. You knew they were working at Ground Zero
without respirators.
Mr. Henshaw. Our requirement was to wear respirators and
when we saw one not wearing it, we in fact told them put it on,
and they did. And we also had a few people dismissed because
they weren't.
Mr. Scott. So you were not aware of anyone working without
a respirator that you didn't take immediate action to correct?
Mr. Henshaw. I am not aware of any that we did not take
immediate action to correct.
Mr. Scott. And in response to the gentleman from New York,
the Chairman's comment, you indicated that one of the problems
with exposure was exposure was immediate, and so a lot of the
illness could not have possibly been prevented because the
exposure was right there at the explosion.
Is it your testimony that people were not exposed after the
initial 9/11 and subjected to significant health problems?
Mr. Henshaw. Congressman, certainly during the collapse of
the building there was an immense exposure, no doubt about it.
There is a picture right here to see the kind of environment
that individuals were in.
During the cleanup and recovery and as soon as we began to
take samples, we began to characterize what those exposures
were. And we found very few above our permissible exposure
levels. But regardless, the requirement was to wear respiratory
protection when you are on the pile.
Mr. Scott. While you are talking about acceptable levels,
can you remind me what you said the acceptable level for
asbestos exposure was?
Mr. Henshaw. On an 8-hour time-weighted average, it is 0.15
fibers per cc.
Mr. Scott. There are some that think that any exposure to
asbestos is hazardous; you would disagree with them?
Mr. Henshaw. I disagree with them.
Mr. Scott. Okay.
Mr. Nadler. Would the gentleman yield for a second?
Mr. Scott. I yield.
Mr. Nadler. I would point out that the Federal Register of
April 25th, 1986, the official EPA regulations state available
evidence support the conclusion there is no safe level of
exposure to asbestos. I yield back to the gentleman.
Mr. Scott. Reclaiming my time. I am aware of that, I just
wanted to make sure I didn't misunderstand the gentleman's
testimony.
Mr. Henshaw. That's based on a 1980's risk assessment that
was based on some old information. We have new information
today.
Mr. Scott. Governor Whitman, you indicated in response to
the Chairman's inquiries on the question of whether the places
ought to be professionally cleaned, you have knowledge that the
White House changed the press release, that was a substantive
change, but that was the only time that you failed to mention
the places ought to be professionally cleaned?
Ms. Whitman. To the best of my--no, what I said, to the
best of my knowledge, that was the only time that something
substantive had been changed in a press release, that did not
convey all of the information that we felt should be conveyed.
Again, I am surprised to hear the Congressman say there weren't
other press releases that indicated the need for professional
cleaning. I know that I have said it on numerous occasions, and
I am surely happy to go back and find tapes, although we------
Mr. Scott. We know now that evidence was there that we
should have known better than to send people back into some of
those situations. If we don't know whether it is safe or not,
should we say that it's safe or should we say that it's not
safe if we don't have firm evidence one way or the other?
Ms. Whitman. Congressman, we were basing everything--there
were tests that were done on air quality. Again, it is not the
usual prerogative or responsibility of the Agency to do indoor
air. However, this was clearly a need, and we were working with
the city of New York that took the lead on indoor air, and we
were following their lead. They were the primary responders----
--
Mr. Scott. We know now that it was not safe, so obviously
we didn't------
Ms. Whitman. No, it was a question of the readings as to
whether they were high enough where they exceeded levels, and
to the best of my knowledge in going back and talking to people
about 5-1/2 years ago and what we were finding, that they were
not finding levels in the air that were--when they did go into
apartments--that were problematic. But that's my recollection
looking back. That was run out of Region II and again it was
New York City who was the primary responder.
Mr. Nadler. The gentleman's time is expired. The gentleman
from Tennessee, Mr. Cohen. I'm sorry, did I skip Mr. Ellison? I
am sorry. The gentleman from Minnesota, Mr. Ellison.
Mr. Ellison. Thank you, Mr. Chair.
Governor, I just want to tell you I appreciate you being
here. I know we had an exchange last time. Nothing here is
intended to be personally offensive to you. I'm just trying to
get some information.
Do you agree that people were made sick because of the
exposure to toxins that were in the environment in the
aftermath of 9/11?
Ms. Whitman. Congressman, I can't make that kind of
finding. That has to be based on the scientific data and the
studies.
Mr. Ellison. Okay. Based on the scientific data and the
studies, do you believe people were made sick by toxins that
were in the environment after 9/11?
Ms. Whitman. If they come to those conclusions I would have
to agree. But waiting for those conclusions------
Mr. Ellison. But, Governor------
Ms. Whitman. No. Clearly we were concerned, Congressman.
Obviously we were concerned or we wouldn't have recommended
time and again that those working on the pile wear appropriate
safety protections.
Mr. Ellison. So can we safely say that you do agree that
the illnesses that people have suffered as a result of their
work of recovery, post 9/11, are related to their illnesses?
You------
Ms. Whitman. That's something that will be proven by all
those studies, including the Mount Sinai one.
Mr. Ellison. So are you saying yes, no, or you just don't
know?
Ms. Whitman. I don't know. I am not a scientist. I am not a
doctor.
Mr. Ellison. I know, I've read your bio. What does your
common sense tell you?
Ms. Whitman. Excuse me?
Mr. Ellison. What does your common sense tell you?
Ms. Whitman. My common sense tells me that we were
concerned about possible health ramifications from workers who
were not adequately protected; otherwise we would not have
repeated over and over again that they should wear protection.
Mr. Ellison. So you have testified already today about how
the toxins that you tested for were within limits in terms of
the studies that you relied on.
If you--do you doubt the testing--do you doubt any of those
tests that you found that were within the acceptable limits for
exposure for people?
Ms. Whitman. Do I doubt the quality of the tests?
Mr. Ellison. Yeah.
Ms. Whitman. I have no reason to doubt the quality of the
tests. Again, the men and women at the Environmental Protection
Agency, the scientists--and they weren't just the Environmental
Protection Agency scientists who were looking at this data, it
was OSHA, CDC, ATSDR, a number--as well as hospitals, the city
and the State. There was a lot of instantaneous peer review, if
you will, going on. So it as not just EPA.
Mr. Ellison. Well, here's the thing, Governor. We have a
lot of people who are sick, many of them are here today. And
yet we have you saying, hey, we tested it and it was within
acceptable; levels, that's why we told the public that--we
reassured the public that it was safe.
How do you account for what looks to me like a discrepancy?
Ms. Whitman. Congressman, again, I think we are talking
about two different things. On the pile there were concerns,
and clearly, as Mr. Henshaw has indicated, when those towers
came down, anybody that was engulfed in that dust you have to
believe there was enormous amount of contamination that took
place then, but that as it was happening nobody was out there
taking readings; everybody was trying to figure out what to do.
Our offices in fact were very near that site and had to be
evacuated and people had to go immediately to the Emergency
Response Center. But in the ambient air quality in Lower
Manhattan in general, after setting aside the moment when those
buildings came down, after that, when we started taking tests
and data--the scientists were telling me that they didn't see
anything that indicated long-term health problems for the
general public.
And, of course, remember that Lower Manhattan was closed to
the general public, to most of the general public for quite
some time afterwards as well. It wasn't a complete kind of a
closeout, but there were pretty strict police patrols. But
that's aside--we were just dealing with what we were hearing
from the scientists, to the best of my knowledge.
Mr. Ellison. Well, let me--are you saying that the people
who have contracted illnesses--well, who I believe contracted
illnesses as a result of the exposure were people who were
only--who were exposed later and not as a result of the on-the-
scene--at the time of the attack that were engulfed in that big
pile? You are saying that the illnesses are folks who--the
people who are sick are people who got exposed outside of the
initial attack?
Ms. Whitman. I couldn't even begin to speculate on that,
which is why the Environmental Protection Agency is part of the
ongoing health registry and examinations that are being
conducted to follow people to find out exactly what kind of
exposure, whether these are--whether they can make that kind of
correlation. I couldn't speculate on that, sir.
Mr. Ellison. One last question, Mr. Chair.
Earlier on, a member of our panel sort of raised a question
about why would we go through an exercise of asking questions
post hoc about what happened here. My question--my point would
be because we want to do better next time.
My question to you is in that light, going forward, do you
think that you would give reassurances about safety of the air
and the water and the toxic exposure after a catastrophe the
way you did this time, if we were to, heaven forbid, to have
another kind of catastrophe like this?
Ms. Whitman. Going forward, I think it is the absolute
responsibility of the Agency to communicate to the public the
information and conclusions being drawn by the scientists who
are looking at the data and making that analysis, not to inject
any kind of a personal presumption into it, but to communicate
what they are getting, based on what the scientists and
professionals who are trained in this are finding.
Mr. Nadler. Gentleman's time is expired. The gentleman--now
we'll get to the gentleman from Tennessee, Mr. Cohen.
Mr. Cohen. Governor Whitman, were the scientists involved
in the issuing of the--given the information that were used in
the press releases at the EPA issued?
Ms. Whitman. Were there scientists involved? As I explained
at the beginning, Congressman, when we would have the meetings
in the morning, our scientists, the head scientist was
generally present at headquarters, but also on the other end at
Region II, their Acting Administrator who was overseeing things
was there, he had scientists there. Scientists were very much a
part of the discussions; yes, sir.
Mr. Cohen. And when the press releases were changed, were
the folks in the White House--do you know if scientists were
involved in that office?
Ms. Whitman. I don't know that, sir.
Mr. Cohen. Well, being that you don't know if there were
scientists involved on that end and there were on your end, and
you state, which is accurate and correct, that the scientists
are the people who should be making these decisions, why did
you never object once, with the changing of the press releases
to an ``all is safe and clear'' from a precautionary note? The
scientists were precautionary, the politicians weren't. Why did
you never once be precautionary?
Ms. Whitman. Congressman, as I indicated earlier, the thing
of concern was to ensure that all of the information that the
public needed to make intelligent choices was it contained in
these press releases and there was--as far as the actual
wordsmithing went, I left that to people who were trying to get
consensus from the various agencies. And I have to presume that
scientists were involved from other agencies as well.
Mr. Cohen. You presume, but you don't know.
Ms. Whitman. No, I don't know.
Mr. Cohen. And you never questioned one time, you didn't
think your position was to speak truth to power, even if they
refused and overruled you, that at least you would have
rested--your conscience would have felt good about raising an
issue.
Ms. Whitman. All the relevant data was communicated in
those press releases to the best of my remembrance and looking
at them. I know, I feel assured, because in one instance where
we felt that all the data wasn't getting out, it was brought to
my attention. So again we talked in the morning about what
information we knew, what the scientists and professionals felt
was acceptable to communicate to the public. That was
communicated to the communications office that went through
this process------
Mr. Cohen. But you looked at the differences. The
differences are very dramatic from, you know--there's a
problem, and asbestos is never a safe substance and it is 200
to 300 percent higher to------
Ms. Whitman. Well, I would disagree with your
characterization of the changes and I think you could go
through and argue back and forth. But also remember,
Congressman, that press releases were not the only way we
were communicating information and data. In fact, I find that
they were probably the least effective way because most of the
people that needed the information, particularly those on the
pile, didn't have time to sit and read press releases, which is
why we communicated, too, verbally and a whole lot of different
levels as well.
Mr. Cohen. How do you define ``the pile?'' What's the
dimensions of the pile, the parameters?
Ms. Whitman. I can get it for you, I don't have it here,
but there was actually a blue line drawn around it--or green
line I guess it was--a green line that indicated the parameters
of the highest exposure where people were working on. It was
basically those areas where the buildings collapsed.
Mr. Cohen. And so was it out to the fence?
Ms. Whitman. Which fence?
Mr. Cohen. When I was there, this is what I was given about
3 weeks afterwards. I was out around the fence. Was that the
pile? Or was the pile--did the pile stop?
Ms. Whitman. Actually our area, you'd probably get a better
answer with the next panel, Congressman. Off the top of my
head, I can't tell you what the parameters were, but again,
that's a matter of record.
Mr. Cohen. There were differences in how the folks who
worked at the Pentagon were allowed to work and the ones at the
Twin Towers. You waived some standards, did you not, at the
Twin Towers that weren't waived as far as using respirators or
conditions?
Ms. Whitman. Are you addressing me or Mr. Henshaw?
Mr. Cohen. Either one that can give me a proper answer.
Mr. Henshaw. No standards were waived.
Mr. Cohen. But everybody at the Pentagon wore the
respirators, did they not?
Mr. Henshaw. I don't know that for sure.
Mr. Cohen. The information I have says they were and that
there were different standards. You don't know anything about
that.
Mr. Henshaw. They were not different standards. We enforced
the same standard, but just in a different way.
Mr. Cohen. In a different way.
Mr. Henshaw. Well, I know there was a snicker behind me.
This is as serious to me as it is to them.
We applied a different enforcement policy or strategy on
the pile because we did not have enforcement authority. And
circumstances require a little different standard in respect to
enforcement, as I said earlier, than happened at the Pentagon.
Under the circumstances, we had to deploy a partnership
requiring people to follow those standards because we did not
have authority for the firefighters and the police.
Now, was every one of them wearing a respirator? Obviously,
I see photographs of people not wearing respirators, or they
are hanging around their chin. I'm an industrial hygienist, and
I know the only way it is going to work is if it is on your
face properly and you are fitted properly. So you are asking
me, did everybody wear it the same way? No. You're asking me,
did people wear it always at the Pentagon? I don't know for
sure. In workplaces all around this country people are supposed
to wear it, and sometimes they are not, so I don't know.
Mr. Nadler. Thank you. The time of the gentleman is
expired. The gentleman from New Jersey, Mr. Pascrell.
Mr. Pascrell. No one is suggesting that the EPA or OSHA
doesn't care about human life. The bottom line is we have to
find out whether you did your job or not, and we are going to
do that, believe me.
Governor Whitman, I have a question for you. I want to know
who was the highest-ranking White House official you ever spoke
to about air quality at the site we are discussing today?
Ms. Whitman. Congressman, they were regular Cabinet
meetings that we have, and in the course of those Cabinet
meetings, I reported to the President.
Mr. Pascrell. So you spoke to the President about the air
quality at the site.
Ms. Whitman. At least one Cabinet meeting it was mentioned
what was happening.
Mr. Pascrell. Was any official at the White House involved
in the decision not to use your authority to take over the site
cleanup to protect workers?
Ms. Whitman. No.
Mr. Pascrell. You don't remember anything like that?
Ms. Whitman. Never had a conversation with anyone at the
White House on that issue.
Mr. Pascrell. What about your authority at the site?
Ms. Whitman. No, we were operating within the authority as
invoked when the President issued the emergency declaration
required under the law.
Mr. Pascrell. I can only conclude from what you are saying,
Governor, that you wouldn't have changed one darn thing if, God
forbid, this heinous act happened again. I listened very
carefully to your answers from both sides of the aisle, and I
don't think you would have responded much differently. That
disturbs me because a lot of people are hurting. I know you
don't want to hurt people--but the results of your actions.
I have another question to ask you.
Ms. Whitman. Could I respond to that? I would refer you to
the lessons learned plan here. The Environmental Protection
Agency was the first Agency of the Federal Government to take a
look at what happened after 9/11 and to come up with a number
of ways that we could have improved our performance, and those
things I endorse.
Mr. Pascrell. Governor Whitman, you have a habit of quoting
what you want from the documents. If you go back to 9/11, since
you brought it up, the quoting from 9/11 that totally
exonerates you--do you want me to read what else they said in
this report?
Ms. Whitman. Excuse me, but I don't believe I ever said it
totally exonerates.
Mr. Pascrell. Then we should open up and clear the air. I
have a question to ask you, because if I repeat on the record
for the first time what else the 9/11 report said, it isn't as
clear as you pretend it to be. And you know what I am talking
about.
Ms. Whitman. No, Congressman, I honestly don't.
Mr. Pascrell. If you want me to read it to you?
Ms. Whitman. If you want to read, Congressman, I have
learned in dealing with you in the past, if you want to read
it, you will read it. That's up to you.
Mr. Pascrell. Before I read it, I want to ask you a
question. Why did you shut down the EPA Ombudsman Office when
they were------
Ms. Whitman. The EPA--certainly.
Mr. Pascrell. I didn't finish the question.
--when they were investigating two major areas, plus how 9/
11. What did the 9/11 response encounter? Why did you shut the
office down?
Ms. Whitman. Congressman, the office wasn't shut down. The
functions of the office were moved to the Inspector General's
offices, a more appropriate place to place it, frankly, because
we were concerned. There had been numerous times where the
ombudsman office had conducted hearings at Superfund sites,
raised very serious questions about EPA's response in those
Superfund sites, and yet not issued a report on them. In order
for EPA to change its behavior and to make a difference we
needed to have those reports. It started under Carol Browner.
Mr. Nadler. Would you yield for a moment?
Mr. Pascrell. Sure.
Mr. Nadler. I would like to ask Governor Whitman, in
February and March of '02 the EPA Ombudsman's Office held
hearings in New York on this whole question. And you refused to
attend those hearings. You sent a memo saying to other
government agencies, saying they should refuse to attend those
hearings, and you put out a press release in advance of the
hearings saying it would be a Broadway production and a farce
and that no one should attend the hearings. My information is
that you had never done this for any previous ombudsman
hearings. Why did you do that?
Ms. Whitman. Congressman, I have to tell you, I have no
recollection of doing that.
Mr. Nadler. I was cochairing those hearings. I remember you
doing it.
Ms. Whitman. Well, okay. Well, fine.
Mr. Nadler. There will be no comment from the audience,
please. Governor?
Ms. Whitman. Congressman, obviously I am taking your word
for it. I am just saying I have no recollection of that.
Mr. Nadler. Thank you, I yield back.
Ms. Whitman. Okay.
Mr. Pascrell. It says in the 9/11 report a lot of things,
``Former EPA administrator, Cristie Whitman, Christine Whitman,
agreed with the White House coordinator. Christine Whitman
interviewed June 28th, 2004. The documentary evidence supports
this claim, although Whitman told us she spoke with White House
senior economic advisor Lawrence Lindsay regarding the need to
get the financial markets open quickly. She denied you
pressured her to declare the air was safe due to economic
expediency. We found no evidence of pressure on the EPA to say
the air was safe in order to permit the markets to reopen.
The most controversial release that specifically declared
the air safe to breathe was released after the markets had
already reopened. The EPA did not have the health-based
benchmarks needed to assess the extraordinary air-quality
conditions in Lower Manhattan after 9/11. The EPA and the White
House therefore improvised and applied standards developed for
other circumstances in order to make pronouncements regarding
air safety, advising workers at Ground Zero to use protective
gear and advising the general population that the air was safe.
The first questions that I asked you my first time around:
Those standards--different standards when you respond to first
responders at the site and compared to different standards when
you talk about school kids and other workers in the area. Let's
not confuse those two, because there were two judges involved
here. One was a male and one was a female. I just want to make
that clear.
Mr. Nadler. The gentleman's time is expired. The witness
may answer the question.
Ms. Whitman. Congressman, there were no new standards
applied. Frankly, I thought it would be a huge mistake to
suddenly start imposing new standards in the middle of a
crisis. We went by the standards that EPA has traditionally
used when it has responded to emergencies. We did not change
any of the criteria on the testing data, we didn't change any
of the markers, we stayed with what EPA has used in the past.
And I will go back again to say it is an extraordinarily
professional Agency, with very smart scientists, who are a lot
smarter than I am.
Mr. Pascrell. Mr. Chairman, if I may conclude with this one
point.
Mr. Nadler. The gentleman is granted an additional 30
seconds.
Mr. Pascrell. I'm reading in the 9/11 report that everybody
seems anxious to quote from.
``The White House efforts during the crisis were
coordinated by the President's Working Group on Financial
Markets.''
Thank you, Mr. Chairman.
Mr. Nadler. I thank the gentleman.
That concludes the first panel of witnesses. The witnesses
are excused, with our thanks. And we will go on to the second
panel of witnesses. We will give a moment or two to change
over.
[Recess.]
Mr. Nadler. The hearing will resume. I hope everyone can
take their seats. Let me remind everybody of what I said prior
to the first panel, that the rules of the House of
Representatives do not permit demonstrations of any kind by the
spectators. Given the emotions, I think everybody's pretty good
about that, but please continue. We have the opportunity to get
answers to questions, that many of us have been asking for 6
years, today and we must proceed in an orderly manner. I know
that those of you who have traveled so far to be here today
agree with that.
I would now like to introduce our second panel of
witnesses. Our first witness, who I don't see there but who I
saw earlier--our first witness is Samuel Thernstrom. He is
managing editor of the AEI Press, which is a publisher of the
American Enterprise Institute, and director of the AEI's W.H.
Grady Program on Culture and Freedom. He was the associate
director for communications for the White House Council for
Environmental Equality from 2001 to 2003. He was also chief
speechwriter for the U.S. Department of Labor, speechwriter for
former Governor George Pataki of New York, and spokesman for
the New York Department of Environmental Conservation.
Previously he was an environmental studies fellow at the
Pacific Research Institute for Public Policy, a research
assistant to Aaron Rudofsky at the University of California at
Berkeley, and a research fellow of the Political Economy
Research Center.
Our second witness is Tina Kreisher. Ms. Kreisher became
director of communications of the U.S. Department of the
Interior in 2004 where she had been a speechwriter and acting
deputy communications director since 2002. She was associate
administrator, Office of Communications, Education and Media
Relations for the Environmental Protection Agency from 2001 to
2002. Previously she was communications director for the U.S.
Senate, Energy and Natural Resources Committee; deputy director
of Governor Christine Todd Whitman's Washington Office, and
special assistant to the Public Liaison Director for the
Information Agency.
Next, Witness David Newman who has served as a
nongovernmental expert on the EPA World Trade Center Expert
Technical Review Panel. He is an industrial hygienist with the
New York Committee for Occupational Safety and Health and
coordinates its World Trade Center Health and Safety Project.
Mr. Newman serves on the Community Advisory Committee of the
World Trade Center Environmental Health Center at Bellevue
Hospital and on the Labor Advisory Committee of the New York
City Department of Health and Mental Hygiene World Trade Center
Registry. He served on the advisory board of Columbia
University Mailman's School of Public Health World Trade Center
Evacuation Study and on the Exposure Assessment Working Group
of the World Trade Center Worker and volunteer medical
screening program. Mr. Newman is a member of the American
Industrial Hygiene Association, the American Conference of
Governmental Industrial Hygienists, and the American Public
Health Association.
Our next witness is Ms. Eileen McGinnis. Ms. McGinnis
served as chief of staff to the Administrator of the U.S. EPA.
Ms. McGinnis also served in Governor Whitman's cabinet as chief
of policy, where she was responsible for the government
operations of 16 State departments. She also served in the
administration of Governor Thomas Caine as director of the
Office of Policy in the Department of Human Services.
The next witness is Marianne Horinko who was named Acting
Administrator of U.S. Environmental Protection Agency by
President Bush on July 10th, 2003. She served in this position
from July 14th, 2003 until November 5th, 2003. She then
returned to her position as system administrator for the Office
of Solid Waste and Emergency Response. Ms. Horinko has served
as a system administrator since being confirmed by the Senate
on October 1, 2001. Following the events of September 11, Ms.
Horinko spent her first few months at EPA involved in
environmental cleanup activities in Lower Manhattan, the
Pentagon, Washington, D.C. And the U.S. Capitol during the
crisis over anthrax contamination. During the first Bush
administration, Ms. Horinko was attorney advisor to Don Clay,
EPA's Assistant Administrator for Solid Waste and Emergency
Response. In that capacity she was responsible for RCRA
regulatory issues and Superfund reauthorization.
Our final witness is Suzanne Mattei. Suzanne Mattei has
worked in environmental policy analysis and advocacy for 25
years. After graduating from Yale Law School in 1981, she
became staff attorney and then director for the Connecticut
Fund for the Environment, and environmental advisor to the New
York City Comptroller from 1990 to 1993. In 1994, she became
assistant deputy advocate to the Public Advocate. She then
served as public policy director for the Access to Justice
Campaign for the New York State Trial Lawyers. From 2003 to
early 2007, she served as New York City executive for the
National Sierra Club where she produced three in-depth reports
on the health impacts of human exposure to pollution from the
September 11 attacks and response at the World Trade Center,
and failed environmental response at the World Trade Center and
the Katrina Hurricane. She now serves as regional director for
the New York State Department of Environmental Conservation,
Region II. She is testifying not in her State capacity, but in
her capacity as the former New York City Executive for the
Sierra Club and author of its ``Pollution and Deception at
Ground Zero'' series of reports. Her comments are her own and
do not necessarily reflect the views of the New York State
Department of Environmental Conservation. I am pleased to
welcome all of you.
As a reminder, each of your written statements will be made
part of the record in its entirety. I would ask that you now
summarize your testimony in 5 minutes or less.
To help you stay within that time, there's a timing light
at your table. When 1 minute remains, the light will switch
from green to yellow and then red when the 5 minutes are up. As
is customary, I ask the witnesses now to please stand and raise
your right hand to take the oath.
[Witnesses sworn.]
Mr Nadler. Let the record reflect all of the witnesses
responded in the affirmative.
You may be seated.
Mr Nadler. The first witness we'll invite to testify is Mr.
Thernstrom.
Mr. Thernstrom, you are recognized for 5 minutes.
TESTIMONY OF SAMUEL THERNSTROM,
AMERICAN ENTERPRISE INSTITUTE
Mr. Thernstrom. Good afternoon. And thank you, Mr.
Chairman, for the invitation to testify. This is an important
opportunity to correct some widespread misconceptions about the
environmental issues related to September 11. Prior
investigations, including the bipartisan September 11
Commission investigation, debunked those misconceptions and I
hope the Committee will do so as well.
As you know, the EPA Inspector General's report made a
number of inflammatory claims regarding CEQ's interactions with
EPA. As a White House employee, I was not at liberty to respond
to the IG's questions, although I would have liked to. As a
result, the IG's report was based on an incomplete and faulty
assessment of the facts.
Let me be clear. The White House had a legitimate role to
play in reviewing EPA's public statement at this time of grave
national emergency, and I am proud of my work. My goal was to
ensure that EPA's statements were as clear and accurate as
possible, providing the public with both the environmental
testing data and EPA's best assessment of its significance.
Every EPA staffer working on this issue shared that goal,
and we worked together to achieve it. There was no disagreement
between the White House and EPA about the degree of danger to
the public. On that question, I deferred to the experts at EPA
and OSHA, who had assessed the data, and I relied upon my
counterparts at those agencies to consult with their colleagues
to ensure that the press releases that they issued were
accurate. This was a collaborative process involving dozens of
agency staffers, and the actions we took reflected the broad
consensus within the agencies about the data.
It is true that I made many suggestions to EPA about ways
to improve their press releases, and when EPA agreed with those
suggestions, they accepted them. In instances where we revised
EPA's drafts in ways that made them more reassuring, it was my
belief that those changes accurately reflected EPA's assessment
of those risks as repeatedly articulated in daily conference
calls with and prior public statements by EPA officials. There
was no meaningful dispute between EPA and the White House about
how to characterize those risks.
The IG's claim that the White House improperly influenced
the substance of these press releases is simply false, as the
documentary evidence clearly shows.
Fortunately, a far more thorough and objective
investigation of these claims was conducted by the bipartisan
September 11 Commission. The Commission's findings were
unambiguous. There was no improper White House influence. EPA's
statements accurately reflected its assessment of the risks.
The Commission was appropriately agnostic as to whether EPA's
risk analysis was infallible, as indeed am I; but they were
quite clear that my role in this process was not improper and
indeed did not influence Administrator Whitman's decision to
declare that the air in lower Manhattan was safe.
As the Commission noted in its report, quote, ``We did
examine whether the White House improperly influenced the
content of the press releases so that they would intentionally
mislead the public. The EPA press releases were coordinated
with Samuel Thernstrom, Associate Director for Communications
at the White House Council on Environmental Quality. Oral
reports, interviews with EPA officials and materials on EPA's
Website were not coordinated through the White House. Although
the White House review process resulted in some editorial
changes to the press releases, these changes were consistent
with what the EPA had already been saying without White House
clearance,'' closed quote.
The Commission report then cites several examples of news
stories published on September 14 and 16 in which Administrator
Whitman reassured the public that there was no reason to be
concerned about air quality in New York. The Commission report
continues, quote, ``There were disputes between the EPA's
communications person and the White House coordinator regarding
the press releases. The White House coordinator, however, told
us that these disputes were solely concerned with process, not
the actual substance of the releases. Former EPA Administrator
Christine Whitman agreed with the White House coordinator. The
documentary evidence supports this claim. We found no evidence
of pressure on EPA to say the air was safe in order to permit
the financial markets to reopen. Moreover, the most
controversial release that specifically declared the air safe
to breathe was released after the markets had already
reopened,'' closed quote.
The Commission's findings are very clear, and I hope this
Committee will give them proper consideration.
In closing, I want to simply make clear that my statements
here today have been and will be accurate to the best of my
recollection. But almost 6 years have elapsed since September
11, and I have not had access to my White House records while
preparing for this testimony. A lot has happened in the
intervening years, but I will do my best to answer your
questions as completely and accurately as I can.
Given the time limitations on my oral testimony, I will
have to stop here. But my written testimony adds considerable
additional detail to these points, and I encourage all of you
to read it.
Mr. Nadler. I thank the gentleman.
[The prepared statement of Mr. Thernstron follows:]
Prepared Statement of Samuel Thernstrom
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
ATTACHMENT
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr Nadler. I will now recognize Ms. Kreisher for 5 minutes.
TESTIMONY OF TINA KREISHER, COMMUNICATIONS DIRECTOR, U.S.
DEPARTMENT OF THE INTERIOR
Ms. Kreisher. Chairman Nadler, Ranking Member Franks and
Members, my name is Tina Kreisher. I serve as Director of
Communications at the Department of the Interior. I've been at
Interior since February 2002 and have served two secretaries,
Gale Norton and now Dirk Kempthorne.
In September it will be a full 6 years since the events of
9/11 and the time I worked at the Environmental Protection
Agency. More than 3 months after that catastrophic event, I
left EPA for extensive foot surgery and then moved to a new
position at Interior. I left behind all of my files and have
had only the August 2000 report--2003, excuse me--report by the
EPA's Inspector General to refresh my memory. Excuse me.
Much has been said about the adequacy of the processes
being used by EPA to test for air quality after the monumental
destruction of the terrorist attack. Yet the tests are the same
as those used by the Clinton administration and for a few
months by the Bush administration to test for daily air quality
in the City of New York and elsewhere. It was the standard
being used by EPA.
As a political appointee, I was not and others were not
scientists. We relied on the professionals to guide us through
the testing procedures and processes. When we were told the
test showed air quality within normal range, we accepted those
findings. My memories are of our New York office located just
blocks from Ground Zero and the stories of our staff members
literally scooping up dust samples as they ran away from the
maelstrom on that day, and of their returning to work there
just a few short weeks after the attack.
There seems to be a perception by some that we accepted
these test results because we had a disregard for the people
living in the city. There is no basis to that perception.
I remember being in the office as Administrator Christine
Todd Whitman heard from her son, who was in one of the
buildings at the World Trade Center. He called, and she told
him to get out of the building, which he did; but then it was
agonizing hours before he called to tell her he was safe.
My oldest daughter was an attorney in New York at the
Cravath law firm, and she lived near the theater district. She
was there on 9/11 and breathed the air for 2 years before she
moved from the city.
There was no disregard for the people who had suffered and
were suffering either on a personal or on a professional level.
Administrator Whitman wanted complete transparency for the test
monitoring, and it was at her suggestion that we put the
testing results online for the press and the public and other
scientists to see and evaluate.
She also wanted more press releases, which brings me to the
section of the IG report that is critical of the press
releases. I've been writing press releases in this town for
more than 18 years, and it has always been a cumbersome
process. In my experience, when the release has a Congressman's
or Senator's name at the top, usually he or she has edited it.
At Interior, we have an approval process that can sometimes
take minutes if I can get to the Secretary, or hours and days
for a detailed review process involving many people.
The press release approval process that was set up after 9/
11 was taking days and sometimes a week. There were many
considerations and many questions being asked, and debates
swirled on conference calls set up, at least in part, by the
Council on Environmental Quality under the auspices of the
National Security Council.
Questions were: Could EPA speak to health risks? Who was
the lead for getting the information out? What was our
statutory obligation? The IG's report, in fact, said, and I
quote, ``These statutes and regulations do not obligate EPA to
respond to a given emergency, allowing for local agencies to
lead a response; and New York City, in fact, exercised a lead
role regarding indoor air,'' unquote.
We were told on conference calls that EPA should continue
testing and let the Occupational Health and Safety
Administration, the City and State of New York, the Department
of Health and Human Services discuss human health. I understand
that OSHA did provide guidance at Ground Zero.
The point has been made many times that there are more
effective ways to get information to the press than by press
release. In fact, I rarely see the content of press releases in
actual press reports. Reporters prefer to do their own
reporting and not copy what is being given to everyone.
Because of the cumbersome approval process, I opted to do
fewer releases and, instead, spoke personally to almost every
reporter who called during those days. This meant 20 to 30
interviews a day just for information from me and then a number
of requests for live interviews with Administrator Whitman. I
think reporters would confirm that we were forthcoming with
information during that period if we had the information to
give them.
I will add one other thing. In all of the years I've been
writing press releases, I've never knowingly put false
information into a release. While editing changes were made,
based on recommendations by the Council on Environmental
Quality, I believe those changes to be upsetting in some cases
but not false.
I still believe that to be true. The IG's report, in fact,
had this to say, and I quote, ``We spoke to a number of experts
in the field of environmental monitoring, including physicians,
industrial hygienists and researchers. These experts generally
agreed that the levels of airborne asbestos detected in the air
outside the perimeter of Ground Zero in Lower Manhattan did not
present a significant increase in the long-term health risks
imposed on the public,'' end quote.
I will be happy to take your questions.
Mr. Nadler. I thank the witness.
[The prepared statement of Ms. Kreisher follows:]
Prepared Statement of Tina Kreisher
Chairman Nadler, Ranking Member Franks, members of the
subcommittee, my name is Tina Kreisher and I serve as Director of
Communications at the Department of the Interior. I have been at
Interior since February, 2002 and have served two Secretaries, Gale
Norton and now Dirk Kempthorne.
In September, it will be a full six years since the events of 9/11
and the time I worked at the Environmental Protection Agency. More than
three months after the catastrophic event, I left EPA for extensive
foot surgery and then moved to a new position at Interior. I left
behind all of my files and have had only the August 2003 report by the
EPA's inspector general to refresh my memory.
Much has been said about the adequacy of the processes being used
by EPA to test for air quality after the monumental destruction of the
terrorist attack. Yet the tests are the same as those used by the
Clinton administration and for a few months by the Bush administration
to test for air quality in the city of New York and elsewhere. It was
the standard being used by EPA. As a political appointee, I was not,
and others were not, scientists. We relied on the professionals to
guide us through the testing procedures and processes. When we were
told the tests showed air quality within normal range, we accepted
those findings.
My memory is of our New York office, located just blocks from
ground zero and the stories of staff members scooping up dust samples
as they ran from the maelstrom on that day. And of their returning to
work there just a few short weeks after the attack.
There seems to be a perception by some that we accepted these test
results because we had a disregard for the people living in the city.
There is no basis to that perception. I remember being in the office as
Administrator Christie Todd Whitman heard from her son, who was in one
of the buildings at the World Trade Center. He called and she told him
to get out of the building, which he did. But then it was agonizing
hours before he called to tell her he was safe.
My oldest daughter was an attorney in New York at the Cravath law
firm and she lived near the theater district. She was there on 9/11 and
breathed the air for two years before she moved from the city.
There was no disregard for the people who had suffered and were
suffering either on a personal or professional level.
Administrator Whitman wanted complete transparency for the test
monitoring, and it was at her suggestion that we put the testing
results on line for the press and the public and other scientists to
see and evaluate.
She also wanted more press releases. That brings me to a section of
the IG report that is critical of the press releases. I have been
writing press releases in this town for more than 18 years and it has
always been a cumbersome process. In my experience, when the release
has a Congressman's or Senator's name at the top, usually he or she has
edited it. At Interior, we have an approval process that sometimes
takes minutes from the Secretary or hours from a detailed review
process involving many people.
The press release approval process that was set up after 9/11 was
taking days and sometimes a week. There were many considerations and
many questions being asked, and debate swirled on conference calls set
up, at least in part, by the Council on Environmental Quality under the
auspices of the National Security Council. Could EPA speak to health
risks? Who was the lead for getting information out? What was our
statutory obligation?
The IG's report, in fact, said, ``These statutes and regulations do
not obligate EPA to respond to a given emergency, allowing for local
agencies to lead a response, and New York City in fact exercised a lead
role regarding indoor air.''
We were told on conference calls that EPA should continue testing
and let the Occupational Health and Safety Administration, the city and
state of New York, and the Department of Health and Human Services
discuss human health. I understand that OSHA did provide guidance at
ground zero.
The point has been made many times that there are more effective
ways to get information to the press than by press release. In fact, I
rarely see the content of press releases in actual press reports.
Reporters prefer to do their own reporting and not copy what is being
given to everyone. Because of the cumbersome approval process, I opted
to do fewer releases and instead spoke personally to almost every
reporter who called. This meant 20 to 30 interviews a day for just
information from me and then a number of requests for live interviews
with Administrator Whitman.
I think reporters would confirm that we were forthcoming with
information during the period--if we had the information to give them.
I will add one other thing. In all the years I have been writing
press releases, I have never knowingly put false information into a
release. While editing changes were made based on recommendations by
the Council on Environmental Quality, I believed those changes to be
upsetting in some cases, but not false. I still believe that to be
true.
The IG's report, in fact, had this to say: ``We spoke to a number
of experts in the field of environmental monitoring, including
physicians, industrial hygienists, and researchers. These experts
generally agreed that the levels of airborne asbestos detected in the
air outside the perimeter of Ground Zero in Lower Manhattan did not
present a significant increase in long-term health risk to the
public.''
I will be happy to take your questions.
Mr Nadler. We'll now recognize Mr. Newman for 5 minutes.
TESTIMONY OF DAVID M. NEWMAN, NEW YORK COMMITTEE OF
OCCUPATIONAL SAFETY AND HEALTH
Mr. Newman. Good afternoon, Chairman Nadler, Ranking Member
Franks and other Subcommittee Members.
The attacks of September 11, 2001, produced not only an
initial catastrophic loss of life, but also a lingering
environmental disaster with adverse health consequences for
responders as well as for area workers and residents. Toxic
contaminants were dispersed at Ground Zero, throughout
Manhattan, parts of Brooklyn and possibly beyond.
Prior to and on 9/11 EPA and OSHA had credible data that
indicated the presence at the World Trade Center site of an
extensive list of toxic materials which, if released, could
pose a risk to human health. Government databases documented
reportable quantities of stored hazardous materials at the WTC
site, including barium, lead, chloroform, chlordane, carbon
tetrachloride, cadmium, chromium, mercury, hydrogen sulfide,
arsenic, tetrachloroethylene, PCBs and ethane. The agencies
were most assuredly also aware of the danger posed by the
presence of several hundred thousand pounds of asbestos in
World Trade Center fireproofing.
EPA's and OSHA's public statements mischaracterized the
available data. Sampling results obtained by EPA and OSHA after
9/11 indicated the presence of toxic substances at levels of
concern at Ground Zero and at other locations in Lower
Manhattan, both outdoors and indoors.
Asbestos was detected by EPA in 76 percent of 143 bulk
samples collected outside the 16-acre collapsed site; 26
percent of these samples contained 1.1 to 4.49 percent
asbestos, that is, levels 110 to 449 percent of the level at
which legal requirements for asbestos are triggered.
At least 25 12-hour air samples obtained at 10 separate
locations exceeded the clearance standard of the Asbestos
Hazard Emergency Response Act, the benchmark EPA was using.
Fifty-seven percent of personal air samples obtained in
September 2001 by the U.S. Public Health Service exceeded the
OSHA permissible exposure limit for asbestos. Sixty percent of
asbestos air samples collected at Ground Zero by the operating
engineers exceeded the EPA clearance standard. Twenty-seven
percent of 177 bulk samples initially collected by EPA and OSHA
at Ground Zero were greater than 1 percent asbestos.
Independent air monitoring in two Lower Manhattan
apartments found significantly elevated levels of asbestos,
including results up to 151 times the EPA clearance level. The
U.S. Geological Survey reported as early as September 18 that
asbestos could be present in concentrations of 20 percent or
more at distances greater than one-half mile from Ground Zero.
EPA detected benzene at Ground Zero in 57 of 96 air samples
at levels from 5 to 86 times the OSHA PEL. Benzene results as
late as January were five times the PEL.
EPA test results through November for dioxin several blocks
from Ground Zero indicated that workers and residents who
returned to areas reopened as safe were potentially exposed to
concentrations of dioxin nearly six times the highest dioxin
level ever recorded. Workers at Ground Zero were potentially
exposed to dioxin levels 100 to 1,500 times higher than is
typical in urban air. EPA did not release this information for
more than a year.
EPA's unsupported reassurances of lack of risk had the
unfortunate effect of giving a green light to employers and
workers not to use respiratory protection, and to landlords,
employers and government agencies that cleanup was not
necessary. Because EPA contended for 8 months that it had no
legal responsibility for addressing indoor contaminants,
sampling and remediation efforts occurred only on a limited,
haphazard and ineffectual basis. EPA's indoor cleanup efforts,
to date, exclude all 1,500 commercial and government buildings
in Lower Manhattan and are of questionable scientific merit and
technical effectiveness.
Within days of the attacks, EPA declared Lower Manhattan's
air safe to breathe. OSHA announced that it is safe for New
Yorkers to go back to work. EPA maintained until fairly
recently that, quote, ``There is little concern about any long-
term health effects,'' unquote. Unfortunately, there's
considerable evidence to the contrary.
It is now well established that a large and increasing
number of people who were exposed to 9/11 contaminants,
primarily rescue and recovery workers, but also area workers
and area residents, are suffering serious and persistent
adverse health outcomes. We now know that those caught in the
dust cloud and/or those responding at the WTC site in the first
hours and days have higher incidences and greater severities of
health impacts. Presumably, the intensity and duration of
exposure and the lack of respiratory protection were
significant factors. These early exposures were unavoidable;
however, the failure of OSHA to ensure the use of respiratory
protection and the failure of OSHA to enforce legal standards
subjected workers to unnecessary and avoidable exposures with
the result that many are now experiencing persistent disabling
respiratory illnesses, and some are dying.
Similarly, the failure of EPA to provide, require or even
encourage indoor environmental assessments and cleanup, where
warranted in commercial and government buildings, coupled with
EPA's inadequate sampling and cleanup in residences is likely
to have subjected area workers and residents to additional
unnecessary and avoidable exposures.
Thank you very much for your concern on these issues.
Mr. Nadler. I thank the gentleman.
[The prepared statement of Mr. Newman follows:]
Prepared Statement of David M. Newman
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr Nadler. Ms. McGinnis is now recognized for 5 minutes.
TESTIMONY OF EILEEN McGINNIS, SENIOR VICE PRESIDENT, WHITMAN
STRATEGY GROUP
Ms. McGinnis. Thank you, Mr. Chairman and Members of the
Subcommittee. I appreciate the opportunity to appear before you
this afternoon to share my thoughts and perspectives on the
response of the USEPA to the terrorist attacks of September 11,
2001. By way of introduction, I served as Chief of Staff to EPA
Administrator Christine Todd Whitman from January 2001 to June
of 2002. Prior to that, I served as Chief of the Governor's
Office of Policy and Planning for 6 years. I have served most
of my career in government service.
Hours after the terrorist attacks on 9/11, I received a
phone call from EPA's Regional Administrator in New York City,
informing me that EPA employees were out in the field
installing air monitors. I was proud, although they had just
witnessed the horrors of the attacks a few blocks from their
office, these very brave and courageous employees quickly put
aside their personal and emotional reactions to the tragedy and
were already on the job in pursuit of the Agency's mission to
protect the environment and human health.
On September 11, a dedicated team of EPA employees
collected air samples for the presence of lead, asbestos and
VOCs which were the contaminants of initial concern. Samples
for other contaminants were added in the days and the weeks
after the attack. In truly EPA fashion, experts from all over
the country came together to help form a monitor network to
assess the ambient air conditions in Lower Manhattan. EPA
employees worked around the clock in makeshift offices since
their offices in Lower Manhattan were closed as a result of the
tragedy.
The emphasis in those early days after the attack was to
provide as much information as possible to the public and to
make sure that information was as transparent as possible. Data
from the air and water monitoring was put up on the EPA's
Website for everyone to see and track.
It is important to note today that the Inspector General's
report being discussed at today's hearing verified the accuracy
of the information posted and found no evidence the EPA
attempted to conceal data from the public. In all, EPA took
nearly 25,000 samples and conducted a quarter of a million
measurements.
Mr. Chairman, your press advisory about today's hearing
states, quote, ``Now is the time for the truth,'' end quote. I
believe the ultimate truth is that the leadership and staff of
the EPA did the very best they could under very difficult
circumstances to meet the Agency's obligation to help protect
the lives and health of all those affected by the attacks. EPA,
along with other agencies with whom we worked, acted to provide
the best possible information based on available data and using
our collective professional judgment under extraordinary
circumstances.
Looking back, one can always find things that could have
been done better. That's why, within weeks of the terrorist
attacks, we launched a comprehensive review of the actions we
took in response. As a result, we developed clear
recommendations as to how the agencies could better respond to
any future attacks, should they occur.
On the whole, however, I remain confident that we've
discharged our duties with integrity, professionalism and
commitment to our mission; and those EPA employees who were in
the field in the hours, days and weeks following the tragedy,
with courage and bravery.
Thank you, and I would be glad to answer any questions.
Mr. Nadler. I thank the gentlelady.
Ms. Horinko is recognized for 5 minutes.
TESTIMONY OF MARIANNE L. HORINKO, EXECUTIVE VICE PRESIDENT,
GLOBAL ENVIRONMENT & TECHNOLOGY FOUNDATION
Ms. Horinko. Good afternoon, Mr. Chairman, distinguished
Members of the Committee. I appreciate your invitation to be
here this afternoon, because I am convinced the more the public
understands about EPA's actions after September 11, 2001, the
more everyone will understand what I know, that the women and
men of EPA were then and are now an amazing group of
professionals dedicated to protecting the health of every
person in this country.
In New York, in the weeks following September 11, it was
not business as usual. EPA employees from all over the country
rushed to New York to provide their assistance in cleaning up
the aftermath of the terrorist attack and to gather and analyze
the data required to answer questions that everyone who lived
and worked in Manhattan were asking.
We had to find creative ways to place monitors and to
gather the data, since there was little monitoring
infrastructure and, for quite some time, no electricity. EPA
employees had difficulty getting permission to get near Ground
Zero in the areas where monitoring was most critical. But
somehow the monitors went up.
Once we started gathering data and consistent with our
overall mission as an agency, we were determined to share
information with the public as quickly as we could and in a
manner that was easily accessible. Public officials and
citizens were clamoring for information. We felt we owed them a
duty to get the data out as fast as we could. We posted the
data from our monitors on the Internet, accessible to anyone.
Anyone who wanted to look at the same data we were reviewing
could.
We gathered the experts of the Agency and in other agencies
to review this data to help determine potential impacts to
residents and workers in New York. We provided our best
information as frequently as we could to the public.
We also worried a lot about the first responders and all
the people who worked at Ground Zero. We told the workers in
every way we could imagine to do it that they needed to protect
themselves even while they were trying to save others. We gave
them equipment and taught them how to use it. We even set up
tents with food to encourage the workers to come in and
decontaminate their clothing and ensure that their protective
equipment was functioning properly.
Did we learn some lessons from this experience? Of course
we did. Within a matter of weeks, we worked to memorialize
those lessons so that our next response to any significant
disaster would be better.
I find it very affirming to know that the Inspector
General, looking dispassionately at our actions with the
benefit of hindsight, concluded that we acted responsibly and
that our statements to the public reflected the facts as we
knew them then and as we still know them today.
To suggest that anyone at EPA was ever motivated by
anything less than a complete focus on protecting the public
does those individuals a terrible disservice. Governor Whitman,
whom I admire greatly, sought out the opinions of experts and
listened to what they had to say. She kept the Agency on course
when it would have been easy to lose direction.
EPA has an important mission in responding to any disaster
like the collapse of the World Trade Center. But EPA was never
intended to do everything for everyone. In this case, we worked
effectively with all the other agencies that also had expertise
and an important role to play, including OSHA, the Centers for
Disease Control, ATSDR and the City of New York. That is the
way the system is designed, and I feel comfortable that it
worked as planned. As I said at the beginning, I thank you for
inviting me here and I will be happy to answer any questions.
Mr. Nadler. I thank the gentlelady.
Ms. Mattei is recognized for 5 minutes.
TESTIMONY OF SUZANNE Y. MATTEI
Ms. Mattei. Good afternoon. My name is Suzanne Mattei. I am
the former Sierra Club, New York City, executive and author of
its Pollution and Deception at Ground Zero report on our
Federal Government's failure to provide a proper response to
the 9/11 pollution. The report also warns that our Federal
Government's new disaster policies perpetuate its failures at
Ground Zero.
Most Americans know more about Paris Hilton than about what
happened in New York City after September 11. They don't
realize that the community district that included the Towers
was home to over 2,700 children under age 10 at the time of the
attack. Most Americans also don't realize how long Ground Zero
burned. The fires were not declared out until 3 months after
the attack, and even after that as debris removal opened up new
areas the site emitted smoke for at least 6 months after the
attack. The exposures were much more extensive and prolonged
than most Americans know.
In the aftermath of the attack, our government should have
warned people against exposure and reduced exposure through
proper cleanup. Instead, it did the opposite. It encouraged
people to ignore their own common sense.
The air looked bad and smelled bad. Many people would have
guessed that the air was unsafe for themselves and their
children, but EPA's broad, unsupported assurances of safety
interfered with that commonsense reaction. I recall people
saying, It smells awful, but EPA says it's not really that bad.
The sad irony is that if EPA had said nothing at all, the
public probably would have been better off because more people
probably would have used their own common sense.
While the September 11 attack was unprecedented, there was
no excuse for failure to warn about known hazards. The event's
physical effects on the environment were not completely without
precedent. Planes have crashed and burned before. Buildings
have caught fire before. Buildings have even collapsed before.
We actually know quite a bit about what happens when
uncontrolled fires burn mixed materials and when buildings
collapse.
EPA's been studying the products of uncontrolled
incineration for decades, and is knowledgeable about demolition
as well. It did not have to take a single test to know that the
9/11 cloud of dust was harmful. It should have issued a health
warning right away.
Even if dust contains no toxic chemicals, it's a
respiratory hazard. EPA had the expertise to know that people
with asthma and respiratory conditions needed to avoid
exposure. EPA knew the Towers contained not only asbestos but
also thousands of computers, plastics and electrical equipment,
all of which would emit toxic chemicals when burned.
Think of your own computer on your desk. If that caught
fire, would you want to breathe in those fumes? Our Federal
experts knew all these things before taking a single test.
There can be no excuse for issuing broad assurances of
safety when two 110-story office towers burn and collapse. So
the concern is not just the EPA lacked the test results to
justify its early assurances of safety, it's worse. Our
government issued those safety assurances even though EPA's own
vast body of knowledge built up over three decades of research
indicated that the pollution would be harmful.
EPA also should have changed its assurances when new
information on health risk emerged. It didn't do so when tests
showed the presence of toxic hazards. It didn't do so when it
became apparent that people were getting sick. The Federal
administration failed to issue a press release, for example,
when the U.S. Geological Survey shared with other agencies on
September 27 its proof that the 9/11 dust was highly caustic.
The public didn't hear about this until over 4 months later
from a St. Louis Post Dispatch article. That's not how we
should find things out.
Among those expressing surprise were some of the leading
doctors treating the already ailing Ground Zero workers.
EPA's responses to the disclosure of hazards tended to be
defensive, not corrective. When environmental attorney Joel
Kupferman's research published by Daily News journalist Juan
Gonzalez revealed that an air sample at the pile surface showed
a high level of benzene, a cancer-causing chemical, EPA argued
there were lower levels in what it called the breathing zone, 5
to 7 feet above the debris pile. The Ground Zero workers were
reaching in and pulling out debris and human remains by hand.
Their breathing zone was not 5 or 7 feet above the pile.
Our Federal Government's stonewalling continued as study
after study documented health impacts not only among workers
from the pit but also area cleanup workers, building cleanup
workers and residents. I want to recognize Alex Sanchez and
Manuel Checo, who are here today, building cleanup workers
suffering severe health effects from their exposures.
Six years later, denial is still the order of the day. The
assurances of safety have never been retracted, and this has
had consequences.
Consider the government's weak response to 9/11 health
impacts which Jonathan Sferazo, a Ground Zero iron worker and
founder of the Unsung Heroes Helping Heroes, calls an
``epidemic.'' The Government Accountability Office's report on
the government's slipshod work to assess those impacts reveals
that the Federal Government didn't really bother to find out
how many people were sick. They don't know, perhaps because
these people are not supposed to exist.
They do exist.
Five years later, only limited Federal money for treatment;
it's inadequate, it doesn't begin to touch the devastating
economic impacts that many of these hard-working people and
their families now face.
This hearing is a historic step to investigate what
happened after the attack. We need action to right at least
some of the wrongs that occurred and to ensure that these
missed steps don't ever happen again.
Unfortunately, our Federal Government hasn't learned from
this debacle. Under its national response plan, OSHA will not
enforce worker health and safety standards in national
disasters. The plan centralizes press statements, as occurred
after 9/11, without a strong precautionary policy to err on the
side of protecting human health when full data is missing.
Finally, the Department of Homeland Security's new guidance
document on cleanup after a dirty bomb or other terrorist
nuclear attack encourages consideration of economic factors,
even impacts on tourism in managing the public health risks.
Some people may be suffering from media fatigue, tired of
hearing about Ground Zero. They may wonder why New York City
residents don't just get closure and move on. The answer is, we
can't. We still live with the toxic aftermath of the attack. We
still haven't had a proper cleanup. Until our government does
the right thing, we will never be able to have closure.
And until our government takes action to make sure that the
failed response at Ground Zero never happens again in any
future disaster, no American can truly have closure.
[The prepared statement of Ms. Mattei follows:]
Prepared Statement of Suzanne Y. Mattei
Good afternoon. My name is Suzanne Mattei. I am the former Sierra
Club New York City Executive and author of its Pollution and Deception
at Ground Zero series of reports on the harmful impacts of the 9/11
pollution and our federal government's failure to warn the public and
provide a proper response. The reports also urge that our federal
government's new disaster response policies perpetuate its failures at
Ground Zero.
Most Americans know more about Paris Hilton than about what
happened in New York City after the terrorist attack of September 11,
2001. They do not understand that it happened in a residential area.
Lower Manhattan looks like a commercial zone, but people live there.
The community district that includes the World Trade Center was home to
over 2,700 children under age 10 at the time of the attack. Most
Americans also do not understand how long Ground Zero burned. The fires
were not officially declared out until three months after the attack.
And even after that, as debris removal opened up new areas, the site
emitted smoke. One resident living nearby recalls the weekend of St.
Patrick's Day, in 2002, when she looked out the window and saw smoke
from the pit--half a year after the attack.
So the exposures were much more extensive and prolonged than most
Americans realize.
The deaths on September 11th were devastating, but our government
could have and should have done much more to control the lingering
harm. It should have warned people against exposure and reduced the
duration of exposure through proper cleanup.
Instead, it did the opposite. It encouraged people to ignore their
own common sense. The air looked bad and smelled bad. Using common
sense, many people would have guessed that the air was unsafe for
themselves and their children. But EPA's broad, unsupported assurances
of safety interfered with that common sense reaction. I recall people
saying, ``It smells awful, but EPA says it's not really that bad.'' The
sad irony is that if EPA had said nothing at all, the public probably
would have been better off, because more people probably would have
heeded their own common sense.
Calling the September 11th attack ``unprecedented'' can be
misleading. There was no excuse for failure to warn about known
hazards. Yes, the terrorist attack itself, causing widespread
destruction on American soil, was unprecedented. But the event's
physical results on the environment were not truly without precedent.
Planes have crashed and burned before. Buildings have caught fire
before. Buildings have even collapsed before. We actually know quite a
bit about what happens when uncontrolled fires burn mixed materials,
and when buildings collapse.
EPA has been studying the products of uncontrolled incineration for
decades and is very knowledgeable about demolition as well. It did not
have to take a single test to know that the massive amount of dust
released by the towers was harmful. It should have issued a health
warning right away.
Even if dust contains no toxic chemicals at all, it
irritates the human respiratory system. EPA should have
immediately warned the public--especially people with asthma
and respiratory conditions--to avoid exposure, before any test
results for toxic chemicals came back.
EPA knew that the towers contained asbestos--this had
become widely known after the first attack on the World Trade
Center in 1993.
EPA knew that the towers contained thousands of
computers, plastics and electrical equipment, all of which
would emit toxic chemicals when burned. It did not have to
consult any existing database on storage hazardous materials at
the site to take cognizance of this.
Our federal experts knew all these things before taking a single
test. There can be no excuse for issuing broad assurances of safety
when two massive office towers burn and collapse.
So the concern is not just that EPA lacked the test results to
justify its early assurances of safety--as noted in the Inspector
General's 2003 report. It is worse than that. Our government issued
those safety assurances even though EPA's own vast body of knowledge,
built up over three decades of research, indicated that the pollution
would be harmful.
Also, EPA should have changed its safety assurances when new
information on health risks emerged. It did not do so. It did not do so
when tests showed the presence of toxic hazards, and it did not do so
even when it became apparent that people were getting sick.
The first Pollution and Deception at Ground Zero report contains a
table entitled, ``What Was Known, What Was Said.'' The table documents
at least a dozen instances in which EPA had information indicating
health risks yet failed to correct its assurances of safety. Despite
early dust tests indicating the presence of asbestos, for example, a
sentence stating concern for workers who might be returning to their
offices on or near an area with asbestos-containing dust was deleted
from EPA's September 14 draft press release. Also, the federal
administration failed to issue a press release when the U.S. Geological
Survey sent test results to its sister agencies on September 27, 2001,
documenting that the 9/11 dust was highly caustic. The public did not
hear anything about this until over four months later, when the St.
Louis Post Dispatch released an article about the data. Among those
expressing surprise at the time was one of the leading medical doctors
who had been screening the already ailing Ground Zero workers.
EPA's responses to the revelation of hazards tended to be defensive
rather than corrective. Perhaps the worst example is its response to a
disclosure of benzene pollution on the pile. Research by environmental
attorney Joel Kupferman, published in the Daily News by journalist Juan
Gonzalez, revealed tests showing elevated levels of certain pollutants
from Ground Zero. One of them was benzene, a known human carcinogen
that can cause leukemia. EPA argued that while a benzene sample at the
surface of the pile had a high reading, EPA had found lower levels in
what it called the ``breathing zone,'' five to seven feet above the
debris pile. The rescue and recovery workers were reaching in and
pulling out debris and human remains by hand. Their breathing zone was
not between five and seven feet above the debris pile.
Our federal government's inaction in the face of new information
continued as study after study documented health impacts not only among
workers from the pile but also area clean-up workers and even
residents. Today, over five and a half years later, denial is still the
order of the day. The assurances of safety have never been retracted,
and this has had consequences.
Consider the federal government's weak response to the health
impacts from 9/11 pollution, which Jonathan Sferazo, a Ground Zero
ironworker and President of the Unsung Heroes Helping Heroes, calls an
``epidemic.'' The General Accounting Office issued a report on the
government's slipshod approach to assessing those health impacts. In
plain language, the conclusion is this: The federal government has not
even bothered to find out how many people are sick. Why? Perhaps
because these people are not supposed to exist. But they do exist, and
they are suffering. Only now, five years later, are we beginning to see
some federal money for medical treatment, but it is terribly inadequate
and does not begin to touch the demoralizing economic impacts that many
of these hard-working people and their families now face.
This hearing is a historic step to investigate what really happened
after the September 11th attack. We cannot control everything, but our
federal government certainly could have controlled this attack's toxic
consequences far better than it did. We need action, to right at least
some of the wrongs that have occurred. Also, we must prevent such harms
from happening in future disasters.
Unfortunately, our federal government has not learned from its
Ground Zero debacle. Under its National Response Plan, worker health
and safety standards will not be enforced in national disasters. Also,
the Plan centralizes and controls the release of information, which can
facilitate politicization of health warnings, as occurred after 9/11,
without a strong precautionary policy to err on the side of protecting
human health in the absence of full information. Finally, the
Department of Homeland Security's new guidance document on radiological
cleanup would encourage consideration of economic factors, even impacts
on tourism, in determining public health risks from a dirty bomb or
other terrorist-wielded nuclear device.
Some people may be suffering from media fatigue. They may be tired
of hearing about Ground Zero. They may wonder why New York City
residents don't just ``get closure'' and ``move on.'' The answer is, we
cannot. We are still living with the toxic aftermath of the attack.
Until our government does the right thing, we will never be able to
have ``closure.'' And until our government takes the proper steps to
make sure that the failed response at Ground Zero never happens again,
in any future national disaster, no American can truly have
``closure.''
Mr. Nadler. I thank the witnesses. I will begin the--
please, we're not supposed to have any demonstrations. It's
against the rules of the House, even approval. It may not seem
political, but that's the rules of the House.
I will begin the question period--oh, I should say. I will
begin the questioning by yielding myself 5 minutes.
Mr. Thernstrom, who designated you to be the conduit or
communications liaison between the EPA and NSC?
Mr. Thernstrom. Honestly, I believe that system was set up
by Deputy Chief of Staff Josh Bolten, but I couldn't say for
sure. I was told to assume that responsibility by my boss,
Chairman------
Mr. Nadler. Who at the NSC did you report to on EPA
communications clearance activities?
Mr. Thernstrom. I don't frankly remember the NSC press
person who------
Mr. Nadler. You don't remember who you reported to?
Mr. Thernstrom. I reported to Chairman Connaughton. I sent
the press releases over to the NSC and received approval for
them. But, no, I don't actually remember the name of the person
I was dealing with there.
Mr. Nadler. Who at the NSC did you send those papers to?
Mr. Thernstrom. I sent them to a fax number that was
assigned. I don't know who was reviewing them at the NSC. It
was 6 years ago.
Mr. Nadler. I understand that.
Who made the decision to have the NSC approve all the EPA
statements? Do you know that?
Mr. Thernstrom. I don't know.
Mr. Nadler. Who at the White House did you speak to about
EPA's public statements?
Mr. Thernstrom. Chairman Connaughton in my office was my
primary contact. I also consulted occasionally with perhaps
another staffer on the CEQ staff.
Mr. Nadler. No one above Chairman Connaughton in the
organization?
Mr. Thernstrom. No, sir.
Mr. Nadler. Did you ever speak with Ms. Whitman about EPA's
public statements?
Mr. Thernstrom. I don't believe that I had any direct
personal conversation with Ms. Whitman. I participated in daily
conference calls with Ms. Whitman. But I don't think we had any
one-on-one conversations about these things.
Mr. Nadler. Now, Ms. Kreisher told the Inspector General
that you worked directly with the NSC Press Secretary on
clearance for EPA communications. That is Condoleezza Rice's
Press Secretary. She was head of NSC at the time; is that
correct?
Mr. Thernstrom. Like I said, I sent them to the NSC and I
assumed that, yes, it was the Press Secretary. I don't actually
recall.
Mr. Nadler. You didn't work with that person?
Mr. Thernstrom. I do remember speaking to that person at
one point. Like I said, I don't even recall her name. This was
a------
Mr. Nadler. Now, EPA Chief of Staff McGinnis, who is
sitting here, was asked by the EPA IG whether she could claim
ownership of EPA's early WTC, World Trade Center, press
releases. She replied that she was not able to do so, quote,
``because the ownership was joint between the EPA and the White
House,'' unquote, and that, quote, ``final approval came from
the White House,'' unquote.
She also told the IG, quote, ``If Sam''--that is you, sir--
``If Sam okayed it, then it was issued.'' The IG also noted
that Ms. McGinnis, quote, ``understood that Sam Thernstrom
provided draft press releases to other government officials,
but she does not know who these other government officials
were.''
Were you, sir, the final decision maker for the public
statements?
Mr. Thernstrom. No. I wouldn't put it that way.
Mr. Nadler. If not, who had the final approval in the NSC
for EPA public statements?
Mr. Thernstrom. Like I said, I sent them to the NSC and I
received approval from the NSC.
Mr. Nadler. Someone you were dealing with in the NSC had
final approval, but you don't know who it was?
Mr. Thernstrom. Six years after the fact, I honestly do not
remember the name of the person I dealt with.
Mr. Nadler. Okay.
Ms. McGinnis, Ms. Kreisher told the IG that all press
releases pertaining to the World Trade Center disaster were
always approved by the Administrator's Chief of Staff, Eileen
McGinnis. Now you have said that you never approved the press
releases either verbally or in writing.
Did you have the final okay on EPA 9/11-related
communications within EPA?
Ms. McGinnis. Tina would keep me informed throughout the
day on the interagency process that was going on and the types
of discussions that were going on. But as I said in my
testimony, the CEQ, as our conduit to NSC, had the final sign-
off on------
Mr. Nadler. They had the final sign-off. But within EPA you
were the final sign-off?
Ms. McGinnis. Yes.
Mr. Nadler. Okay. Thank you.
Now, you received an e-mail on 9/12, that is, on September
12, from EPA Deputy Administrator's Chief of Staff Claudia
McMurray, stating that all statements to the media should be
cleared through the NSC before they were released.
You stated you cleared all statements through the NSC.
Ms. McGinnis. I did not, sir. CEQ was our conduit to the
NSC. I had no contact------
Mr. Nadler. They were all sent to the CEQ and then the NSC?
Ms. McGinnis. Correct.
Mr. Nadler. Okay. Did you tell Ms. Whitman to clear all
statements with the NSC.
Ms. McGinnis. I recall a memo coming over to all agency
heads.
Mr. Nadler. That would have been the Claudia McMurray memo?
Ms. McGinnis. No. I think it was from Andy Card.
Mr. Nadler. From whom? Andrew Card?
Ms. McGinnis. Andrew Card. I recall them saying that all
communication needed to be reviewed by NSC, and then that was
followed by the e-mail that was in the IG's report by the
Deputy Administrator.
Mr. Nadler. Okay. What expertise does the National Security
Council have that the EPA doesn't have with respect to the
risks from environmental contamination on public health?
Ms. McGinnis. I can't answer that question about what
excuse they have. I have never been in contact with NSC. I
stated in my testimony to the IG that I thought the White House
played an appropriate coordinating role, given the national
emergency.
Mr. Nadler. And do you know who made the decision to have
the NSC approve all EPA statements?
Ms. McGinnis. I do not.
Mr. Nadler. Do you know who would know that?
Ms. McGinnis. I do not.
Mr. Nadler. Okay.
Well, final question, when you were asked by the EPA IG
whether you could claim ownership of EPA's early World Trade
Center press releases, you replied you couldn't do so ``because
the ownership was joint between EPA and the White House'' and
then ``final approval came from the White House.'' You also
told the IG, ``If Sam okayed it, it was issued.''
The IG also noted that you understand that Sam Thernstrom
provided draft press releases to other government officials,
but she doesn't know who those other government officials were,
as you just said.
Was it your understanding that Mr. Thernstrom was the final
decision maker for EPA public statements within the White
House?
Ms. McGinnis. I really did not know what happened--who Sam
communicated with at the White House.
Mr. Nadler. So you don't know who the final decision-making
authority------
Ms. McGinnis. I do not.
Mr. Nadler. Okay. Thank you very much.
My time has expired, and I yield 5 minutes to the gentleman
from Arizona.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, it seems to me that the main question that is
being asked here today is if, indeed, there was a deliberate
attempt on the part of the EPA to conspire with the White House
to send people, to convince people to go into an unsafe
environment. And, you know, the motivations to that end elude
me completely.
But, Ms. McGinnis, I would like to ask you, do you think
that there was a deliberate conspiracy within the White House
and the EPA to convince people to go into an unsafe
environment?
Ms. McGinnis. I do not, sir.
Mr. Franks. What was the main--the Agency's goal as far as
the press releases that you sent? What was your main goal? What
was your desire?
Ms. McGinnis. The public was very hungry for information,
and our desire was to produce information as soon as possible
with--emphasizing quality and timeliness.
Mr. Franks. Was it appropriate in your mind for the NSC and
CEQ to have the final sign-off on these press releases?
Ms. McGinnis. Yes, given the national emergency that had
just occurred.
Mr. Franks. Were press releases your only form of
communication? Was it your main form of communication? What----
--
Ms. McGinnis. As Governor Whitman and Ms. Kreisher have
testified, I have supervised over the years many press offices,
both on the State and in the Federal level. Press releases, I
think, have become increasingly less important, and other forms
of communication have become more important.
Mr. Franks. All right. Thank you, Ms. McGinnis. Mr.
Thernstrom, the Office of the Inspector General report stated,
quote, ``Responding to this crisis required organizations from
all levels of government to coordinate their responses and
their efforts, and to make critical public health and safety
decision quickly and without all the data the decision makers
would normally desire,'' unquote.
Do you agree that in this case the EPA had to make
statements regarding its judgment in emergency circumstances in
which it could not possibly have had perfect information?
Mr. Thernstrom. Absolutely, Congressman. In fact, I was
quite struck by the fact that when the EPA Inspector General
was interviewed by, I believe it was MSNBC, after her report
was issued and she was asked whether she believed that the air
after 9/11 was safe, she said that even 2 years after the fact,
she wasn't certain what the answer to that was.
Now, I don't think it's the appropriate response for the
Federal Government to tell the people of New York, Gee, we're
taking all the tests, but we don't really know. Hold your
breath and just--you know, we'll get back to you in a couple of
years if we have an answer then.
I think the best response of the Federal Government, who
employs the Nation's best experts on these questions, was to
assess the data as best it could, make its best judgment about
the significance of that data and speak to the public in this
time of terrible national emergency. And I think EPA did that
very responsibly.
Mr. Franks. You don't think there was any hint of
conspiracy between EPA and the White House to convince people
to go into an unsafe area?
Mr. Thernstrom. I think nothing could be further from the
truth, Congressman.
We were very concerned about the potential environmental
hazards related to September 11, and we were very reassured by
the information that we saw. And as Governor Whitman said, we
spoke--we had a thrice daily conference call originally, later
twice daily, speaking with all of the staffers who were working
on this issue. They were looking at the data.
The things that Governor Whitman said, the things that Ms.
Kreisher and I put in the press releases that were issued were
based strictly upon what we were told by all of the scientists,
who reviewed the data, was the correct way to characterize
those risks.
I can't say that their assessment was infallible, but I am
quite confident they were doing the best job they could under
the circumstances, and we were listening to them very
carefully.
Mr. Franks. Mr. Chairman, I guess I can only add that, you
know, there is no way to overstate the tragedy that this 9/11
incident caused America and so many people both on that day and
in subsequent days and some of the ancillary areas that have
occurred since. And I don't know that anyone in this room would
ever want to minimize that tragedy, anyone.
And I guess I just would suggest that this Committee's
energies might be better spent trying to make things better for
those victims that were in 9/11, and doing what we can to have
policies that would prevent such a tragedy from occurring
again.
And deliberately trying to somehow insinuate that there was
a conspiracy between the EPA and the White House to convince
people to go into unsafe areas, that's a preposterous notion;
and I think the Committee's energy is ill spent in this regard,
and I think we have to work toward making this never happen
again. I thank the panel members.
Mr. Nadler. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott------
Mr. Scott. Thank you, Mr. Chairman.
Mr. Nadler.--is recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, we're inquiring whether or not there are any
failures in government processes that might have unnecessarily
exposed people to health risks. Just because we're doing that,
that doesn't suggest necessarily that we are trying to find a
conspiracy to intentionally endanger people. We're trying to
see if government worked or it didn't work. And I think there's
plenty of evidence here that people have been exposed to toxic
materials unnecessarily. Now, let me ask a couple of questions.
Mr. Thernstrom, you were doing press releases? You were
doing press releases in the White House at the time?
Mr. Thernstrom. I was the Associate Director of
Communications for the CEQ, yes, and I worked closely with Ms.
Kreisher and other EPA staffers on these press issues.
Mr. Scott. Did you make any changes in these press releases
that were presented to you that made a substantive difference
in the science? One that was suggested is, you took
professional cleaning--it's been suggested that you took quote,
``professional cleaning,'' as a recommendation out. Is that
true?
Mr. Thernstrom. That is correct, Congressman. That was not
based upon a difference in the science, though--however. That
was a jurisdictional question involving which agency had
responsibility for providing New Yorkers with guidance on that
issue. That was not based upon my reading of the science so--
whatsoever.
Mr. Scott. Well, the EPA Director suggested that that was a
substantive difference. Were there any other changes that were
made that constituted a substantive difference?
Mr. Thernstrom. I can say--you know, ``substantive
difference'' is in the eye of the beholder, Congressman. But I
can say every change I made was a matter of consensus between
me and the EPA staffers who I worked with. There was no
disagreement about the substance of them and that, in fact, the
changes I made were based upon my daily conversations with all
of the EPA staffers.
So we all worked together in this very fast-moving, very
chaotic, dynamic environment to try to understand all of the
information that was coming in, to listen to the staff that we
were talking to and to correctly reflect what they were telling
us.
Mr. Scott. Thank you.
Ms. Kreisher, did you feel any political pressure in the
way press releases should be written?
Ms. Kreisher. I didn't feel political pressure. Mr.
Thernstrom and I sometimes disagreed, and that's reflected in
some of the edits we see in the press releases. I would agree
with Governor Whitman that the only substantive change had to
do with the cleaning. And as Sam just said, that press release
referred you to the City of New York.
Mr. Scott. The question was, did you feel any political
question to write press releases in a certain way?
Ms. Kreisher. No.
Mr. Scott. Mr. Newman, I've got two versions of an answer
to a question I asked Mr. Henshaw, about what was going on at
Ground Zero. The first go-around was that people were there not
wearing respiratory equipment and there was nothing he could do
about it because it was New York City's problem.
The second time he answered the same question, he said that
any time they notice someone not wearing the equipment, they
were down there on the spot and corrected it right then and
there.
Can you tell me what you thought was going on in terms of
OSHA enforcement? People are obviously in a dangerous situation
involving the equipment they should be wearing.
Mr. Newman. Thank you for that question. There was no OSHA
enforcement at Ground Zero. That was a deliberate, conscious
policy. That policy was done on--was implemented at that point
in time on a discretionary basis.
It has since then been incorporated into OSHA policy
officially, and OSHA's official policy as of 2003, going
forward, is automatic nonenforcement in disaster response
situations, which of course I disagree with that policy. I
think it's an incorrect policy.
The contention that OSHA had no authority to enforce, I
think is also fallacious. There is absolutely nothing, at least
insofar as I'm aware, in either the National Contingency Plan
or Presidential Decision Directive 62 which addresses the issue
of OSHA enforcement; and OSHA not only is free to enforce, but
is obligated to enforce in my opinion.
Mr. Scott. What was going on at Ground Zero? Were the
people wearing the equipment or not?
Mr. Newman. Well, the answer to that is ``no.'' There was
no enforcement, and people were not wearing their equipment.
Whatever policy OSHA adopted, whether it was enforcement or
nonenforcement, that policy was ineffectual.
Mr. Scott. Was there any question that the people not
wearing the appropriate equipment were in danger?
Mr. Newman. Well, I don't think there was any question
among the regulatory agencies or among the people in the
industrial hygiene or public health communities.
There was certainly some question among responders
themselves, given the lack of clarity and reassurances from EPA
and OSHA that the air was safe to breathe.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Nadler. I thank you. I now recognize for 5 minutes the
gentleman from New Jersey, Mr. Pascrell.
Mr. Pascrell. Thank you, Mr. Chairman. In the 9/11 report,
since, Mr. Thernstrom, you are such an expert on 9/11, there's
a statement by the Committee that says, we do not have the
expertise to examine the scientific accuracy of the
pronouncements in the press releases. The issue is the subject
of pending civil litigation.
How do you interpret that?
Mr. Thernstrom. I'm not quite sure how to answer the
question, Congressman. It seems it's a self-evident statement--
----
Mr. Pascrell. What does it mean to you?
Mr. Thernstrom.--in its entirety.
Mr. Pascrell. What does it mean to you, Mr. Thernstrom?
What does it mean to you?
Mr. Thernstrom. Simply that there are complex scientific
questions involved which are hotly disputed and that that was
not an issue that the 9/11 Commission had the expertise to
examine, nor was it an issue that I feel I have any expertise
to comment upon.
Mr. Pascrell. So, therefore, we can't make a conclusion or
a judgment that the 9/11 Commission cleared anybody, because
they didn't have the scientific evidence, because they weren't
tuned to that. Is that an accurate statement?
Mr. Thernstrom. Congressman, the 9/11 Commission looked at
one question specifically, which was whether or not------
Mr. Pascrell. It is only a short period within that report;
is that correct? It is about 12 footnotes.
Mr. Thernstrom. The question the 9/11 Commission was
looking at was whether or not the White House influence upon
EPA's press releases was improper. And on that question, their
answer was unambiguous; its answer was ``no.''
Mr. Pascrell. It's not a conclusion. It's not a conclusion
if you read this report.
But I want to ask another question.
Mr. Thernstrom. But I don't understand that.
Mr. Pascrell. I would like to ask another question.
Mr. Thernstrom. Sure.
Mr. Pascrell. What you call ``preposterous,'' you said that
would be so preposterous in your answer to the question. Why
would it be so preposterous?
This is an Administration that paid journalists to clear
the air. They also had the chief procurement officer out of the
White House so he couldn't be arrested in there, first time an
employee--why would it be so preposterous to change--excuse me,
sir. I'm not finished.
Why would it be so preposterous to change the words within
a press release so that people's fears could be assuaged?
Mr. Thernstrom. Congressman, I don't believe I used the
word ``preposterous.''
Mr. Pascrell. You used the word ``preposterous.''
Mr. Thernstrom. I believe Congressman Franks------
Mr. Franks. Actually I, did, sir.
Mr. Pascrell. Well, you used it then. There's no
difference. There's no difference because this is--you know,
how did Andy Card show up in the middle of this thing? How did
Andy Card show up in the middle of this thing?
Ms. Mattei, I want to ask you a question.
Ms. Mattei. Yes.
Mr. Pascrell. What are the shortcomings of the various
indoor cleanup plans that the EPA has conducted so far? What
should they have done? What should be done now?
And my final question to you is this: Has the EPA ever
called for an examination, a physical examination, of those
people who were in the zone long beyond which they shouldn't
have been in that zone? Had they ever asked you or anybody
else, first responders, to definitely get a physical
examination to see what might affect you and you personally?
Have they ever done that?
Ms. Mattei. I certainly did not experience that. And I'm
not aware of them ever having done that. I didn't see anybody
monitoring the air on the street where I worked. And I can tell
you that I smelled Ground Zero for months, and I was about
seven blocks away. This ``on-the-pile'' versus ``off-the-pile''
thing is a little bit of nonsense. There was no glass bubble
over Ground Zero. The air blew that stuff into the------
Mr. Pascrell. All over the place.
Ms. Mattei.--into the surrounding community. It definitely
did. And while there may have been some dissolution, there were
a lot of toxic chemicals for which there is no safe level of
exposure.
Mr. Pascrell. Speak the truth.
Ms. Mattei. And the nonsense about--well, the high levels
were in the dust, not in the air, that's just out of touch with
reality. People coming back to their homes, people coming back
to their work sites, there was dust. And what did people do?
They cleaned up the dust. Small business people cleaned up
their own businesses. People cleaned up their own offices.
Have you ever dusted a book shelf?
Mr. Pascrell. That's a good idea.
Ms. Mattei. Where was your nose? Where was your nose when
you dusted that book shelf?
Thank you.
Mr. Pascrell. I just have one more question. I want to ask
that question to Ms. Kreisher.
Ms. Kreisher, you told the Inspector General that you felt
extreme pressure when the White House was changing your drafts
of the EPA press releases. And you said in your testimony today
that those changes were upsetting in some cases. Who upset you?
Ms. Kreisher. As I said, Sam and I didn't always agree. The
pressure was from Sam. A lot of times tempers flew.
Mr. Pascrell. Was he applying pressure to you?
Ms. Kreisher. I wouldn't call it ``pressure.'' Any point,
Sam would always say, this is your press release.
Mr. Pascrell. So your statement to the Inspector General
wasn't really what you felt?
Ms. Kreisher. Well------
Mr. Pascrell. You used the term--correct me if I'm wrong--
``extreme pressure.''
Ms. Kreisher. I was referring words--to the wordsmithing,
not some big policy somewhere.
You've got to put this back in context. The IG inspector
came to see me. I was at Interior. I was being asked about what
my press releases looked like and whether the words in the
press release were all mine.
Mr. Pascrell. So the pressure--the pressure was basically
whether we should use a comma or colon--I'm exaggerating right
now; I'm using hyperbole right now--and not really whether or
not we were communicating to the folks out there what was
really going on? That wasn't ever a question in your mind,
right?
Mr. Nadler. The gentleman's time has expired.
Ms. Kreisher. Of course it was a question.
Mr. Pascrell. It was a question in your mind?
Mr. Nadler. The gentleman's time has expired.
The witness may answer the question.
Ms. Kreisher. We always cared what the content was. And as
I said, we had a lot of conference calls. We had a lot of
discussion before these press releases were ever issued. And we
usually came to consensus before that happened.
Mr. Scott. Mr. Chairman.
Mr. Nadler. Yes, sir.
Mr. Scott. I don't mean any harm, but I thought I asked the
same witness if she was receiving any political pressure, and
she told me ``no.''
Mr. Nadler. I will yield the gentleman, with unanimous
consent, 1 minute; and the witness may answer the question.
Ms. Kreisher. Okay. To me, political pressure is, here is
the message. You will make sure that this is the message that
goes out, crafted accordingly. It was not done like that. The
scientists gave us the message. We always listened to the
scientists.
Mr. Nadler. If the gentleman would yield, so what pressure
were you referring to?
Ms. Kreisher. Sam and I didn't always agree. And there was
pressure between us on, you know, was this the right wording?
Was this the right wording?
I got a lot of pressure from------
Mr. Nadler. So it was interpersonal pressure, not political
pressure?
Ms. Kreisher. Yes.
Mr. Nadler. Thank you.
The gentleman from Tennessee is recognized for 5 minutes.
Mr. Cohen. Thank you, Mr. Chairman. Well, I was with some
folks in the back, and I hate to go over------
First thing, all politics is personal. My protection on
October-something in 2001. The EPA document labeled Attachment
4 and produced by Ms. Whitman says that paper filament masks
would provide sufficient protection under minimal exposure
conditions.
Mr. Newman, this mask--is this a paper filament mask?
Mr. Newman. I'm sorry. I can't see it from here. Does it
say NIOSH on the front?
Mr. Cohen. It sure does.
Mr. Newman. Does it say N95?
Mr. Cohen. It says N95.
Mr. Newman. Well, that's not the paper mask that is being
referred to in this case.
Mr. Cohen. What would this one be? Is this better or worse?
Mr. Newman. That is not--despite the fact that that's not
the paper dust mask to which you were referring, that mask is
not acceptable under OSHA legal standards for exposure to
asbestos.
Mr. Cohen. This one isn't.
Mr. Newman. You need a halfface air purifying respirator
with screw-in HEPA particulate filters, which that is not.
Mr. Cohen. So when I was on that location, right down there
somewhere around this fence, or right down inside the--just
outside the pile, this was show business?
Mr. Newman. That would be a fashion accessory, yes.
Mr. Cohen. You do know I was wearing--how about the paper
filament masks; they were not sufficient either?
Mr. Newman. Paper dust masks provide zero protection under
any circumstances, zero health protection, that is.
Mr. Cohen. Was there any reason why the people at the Twin
Towers should have been allowed to--should the EPA have
enforced their regulations that those folks use their
respirators, as apparently they did at the Department of
Defense?
Mr. Newman. That's directed to me?
Mr. Cohen. Yes, sir.
Mr. Newman. Neither EPA or OSHA enforced their regulations,
as we know, at Ground Zero. I think that was absolutely
inappropriate and possibly criminal.
I'm shocked to hear here that we're talking about an
extraordinary--we're talking about extraordinary circumstances
as though EPA did not have, frankly, quite a stellar--in
general, stellar track record, the expertise, the staffing, the
funding and the track record to respond to incidents like this.
Yes, the scope of this was somewhat unusual. However, there
was nothing unusual here. I mean, what's unusual is the lack of
enforcement of applicable standards. That's the most unusual
thing in this case.
What's unusual is not the hazards to which people were
potentially exposed. The issue was that we didn't protect
people against those hazards. That was the unusual part here.
Mr. Cohen. Is there anybody on the panel that would like to
respond to that? Nobody wants to respond to that? Do you all
agree with that? Everybody agrees?
Ah, a volunteer.
Ms. Horinko. I will, because I feel that the agencies,
working collectively, used their best judgment to get the
responders to wear their gear as quickly as we could. There was
discussion with the city and OSHA of how, daily, to get the
responders to wear their gear.
EPA, the first weekend, at OSHA and FEMA's behest,
provided, I believe, thousands of respirators and cartridges
and set up washing stations, and eventually set up the food
stations to get the--a condition of which was to decontaminate
and make sure your gear was working properly.
There was discussion about whether the city or OSHA should
step in and start fining the responders and take them to court.
It seemed inconceivable that we would do so while they were
trying to still save fallen comrades. So given the situation at
the time------
Mr. Nadler. Would the gentleman yield for a moment on that
point?
Mr. Cohen. Yes.
Mr. Nadler. Everybody who was going to be saved was saved
by the third day. After that it was simply a recovery
operation. So why was it inconceivable in the next 50 or 60
days?
Ms. Horinko. In the next 50 or 60 days we didn't have to
because by then people were wearing their gear.
Mr. Nadler. It's your testimony everybody, almost
everybody, wore their protective gear after the first 3 three
or 4 days?
Ms. Horinko. Not after the first 4 or 4 days but certainly
50 or 60 days.
Mr. Nadler. I yield back.
Mr. Cohen. Ms. Kreisher, if you have answered this, let me
know, but Mr. Thernstrom said your work quality wasn't good, or
something to that effect.
Ms. Kreisher. I don't recall him saying that. We had our
differences but we did respect one another.
Mr. Cohen. In Mr. Thernstrom's written testimony he stated
that his job was to make it clear and to the point, and stated
because--in his words--the complete conflict between you and he
was only about your work quality.
Ms. Kreisher. Well, the wordsmithing that went on, we
disagreed on some of the------
Mr. Cohen. Work quality is wordsmithing?
Ms. Kreisher. In a press release, sir.
Mr. Cohen. I guess it is.
Mr. Thernstrom. Since you're characterizing my words here,
I did not say the conflict with Ms. Kreisher was about our work
quality, I did say that we sometimes--I worked to try to
improve the press releases because I had concerns about the
quality of them. I thought they were sometimes vague and
incomplete. Where I said that they conflict with Ms. Kreisher
was in fact about process questions involving the clearance
procedures with the NFC. I thought it was important that the
NFC have an opportunity to sign off on everything that went out
the door before it went out the door, and Ms. Kreisher
understandably was frustrated with the clearance process. It
wasn't something she was accustomed to. That, to the best of my
recollection, was the source of conflict between us.
Mr. Cohen. Thank you.
Mr. Pascrell. Mr. Chairman, can I have 1 minute?
Mr. Nadler. The gentleman from New Jersey is recognized for
1 minute.
Mr. Pascrell. Let's look at exactly what was changed in the
September 14th draft release. The original statement was this.
This is the sentence before it gets to our friends. ``the
concern raised by these samples would be for the workers at the
cleanup site and for those workers who might be returning to
their offices on or near Water Street on Monday, September 17th
2001.''
The samples that were taken they are talking about here.
That sentence was deleted. It goes away. Instead the release
quotes OSHA saying this: Our tests show that it is safe for New
Yorkers to go back to work in New York's financial district.
Let me tell you something, Ms. Kreisher, I don't see a
technical change in the sentences, I see--I can only tell you
what I see and you tell me what you see, although you change
your mind but that's okay, you can change your mind around
here--you trying to convince me and the panel that the sentence
that was replacing the original sentence, the former sentence
that I read, there is some technical changes? That is night and
day.
Ms. Kreisher. Congressman, Sam has gotten kind of a heavy
rap here as being the only editor of these press releases. As
we explained we were on conference calls with OSHA, CEQ, with
sometimes the State of New York, with a lot of different people
who had input into this. The thought was that OSHA had better
and more complete data at that point than the------
Mr. Pascrell. So you let it go through your hands that the
air is really clear and forget about the original statement
that would have gone in there.
Mr. Nadler. The gentleman's time has expired.
Mr. Pascrell. Give us a break.
Mr. Nadler. We will now begin the second round of
questions. I will pick up where Mr. Pascrell was leaving off.
Mr. Thernstrom, you have stated in your testimony that your
basic job is to make--or one of your jobs is to make EPA's
written statements clear and to the point. Now the IG details
in its report, tables 2.4 and 2.5 over there, changes you made
to several press releases. On September 13 you took out the
statement: ``even at low levels EPA considers asbestos
hazardous.'' You substituted for that warning a quote from Mrs.
Whitman: ``EPA is greatly relieved to have learned that there
appears to be no significant levels of asbestos dust in the air
in New York City.'' Do you consider that simply making
something clear and to the point or isn't that clearly changing
the meaning from a warning to a reassurance?
Mr. Thernstrom. Congressman, as Ms. Kreisher just
explained, we had------
Mr. Nadler. Is this changing only stylistic or changing a
warning to reassurance?
Mr. Thernstrom. Congressman, that change reflected our
conversations.
Mr. Nadler. I'm not asking that.
Mr. Thernstrom. It accurately reflected it.
Mr. Nadler. It accurately reflected what you thought, but
does it change EPA'S original suggestion of a warning to a
reassurance; yes or no?
Mr. Thernstrom. I don't believe that EPA was originally
trying to warn the public.
Mr. Nadler. Even at low levels EPA considers asbestos
hazardous is not a warning?
Mr. Thernstrom. You opened this hearing by showing a video
clip on the monitors of Governor Whitman telling the people of
New York that she believed the air was safe. I think that the
revisions that we made to the press releases were in light of
that, Governor Whitman's assessment.
Mr. Nadler. Going to the next one, you change the original
EPA language stating dust samples showed levels of asbestos
ranging from 2.1 to 3.3 percent. EPA views 1 percent levels of
asbestos as a definition of asbestos- containing material, to
final language deleting reference to 1 percent level being
dangerous and characterizing sample results 200 to 300 percent
over the 1 percent level as, quote, ``slightly above the 1
percent level.''
I have the same question. Don't you think that is slightly
misleading, to characterize something 200 to 300 percent above
a level as slightly above?
Mr. Thernstrom. Congressman, all I can tell you, the
language in those press releases was considered accurate by the
scientists who reviewed them.
Mr. Nadler. Ms. Kreisher told the IG that there was a
conscious effort to reassure the public and that it came from
the White House and the Administration; do you agree?
Mr. Thernstrom. We all, including EPA and at the White
House, found that the data we were looking at was reassuring;
and so we felt it was appropriate to reassure the public. That
was what the scientists who reviewed the data told us and we
were greatly relieved to hear that.
Mr. Nadler. Finally, Mr. Thernstrom--Ms. Kreisher, rather--
Mr. Thernstrom e-mailed you on the 25th of September '01 about
your desire to put raw monitoring results on the EPA Website.
He wrote that raw, quote, ``raw data alone is easily
misunderstood and mischaracterized by political candidates in a
city who have an ax to grind. I think you will leave yourself
more open to their attacks by giving them more ammunition,''
close quote.
Do you agree that denying the public the right to see raw
testing data is an appropriate approach to communicating risk,
Ms. Kreisher?
Ms. Kreisher. I agreed with Governor Whitman that that data
needed to be out there as quickly as possible. The discussion
came in, if you have no context for the data, does it make
sense to the public, and at that point the raw data was just
that, raw data.
Mr. Nadler. Mr. Newman, was there--did this seem to be a
pattern of EPA not posting relevant data on its Website for
months at a time?
Mr. Newman. There was certainly delays and omissions in
what we saw posted on the EPA Website. Additionally, there was
information of the sort that I believe Ms. Kreisher is
referring to, that is characterization of the data as
distinguished from the raw data, and it is my opinion that the
characterization of the data was used at times to obfuscate or
to hide the raw data. Specifically, as an example, are the
dioxin data.
Mr. Nadler. Ms. McGinnis, earlier in your testimony you
mentioned Andrew Card's name. I think you mentioned Andrew
Card, Josh Bolton.
Ms. McGinnis. Andrew Card.
Mr. Nadler. Is there anyone else at this level, and did you
say that he was involved in issuing or approving statements
about the World Trade Center?
Ms. McGinnis. I didn't say that. I raised his name in the
context of I believe on September 12 a memo came over from Andy
Card to all agency heads, the whole Cabinet, mentioning the
need to coordinate communications. I think it was like a two-
or three-sentence memo.
Mr. Nadler. Okay. Mr. Thernstrom, did you ever speak to
Andy Card about any of these statements?
Mr. Thernstrom. No, sir.
Mr. Nadler. Or anybody in his office?
Mr. Thernstrom. No, sir. Not to the best of my
recollection.
Mr. Nadler. Very good. Okay. The time of the Chairman has
expired. I now recognize the Ranking Member Mr. Franks for 5
minutes.
Mr. Franks. Thank you again, Mr. Chairman. Thank all of you
again for being here.
Ms. Horinko, I know that many times we are asking questions
on subjective statements here today. When you say ``safe,'' I'm
not sure this hearing room is entirely safe. There's a lot of
subjective statements.
But let me just ask you, has there been any scientific
showing that any long-term health risks have been presented by
contamination to the residents of lower Manhattan?
Ms. Horinko. No, Congressman, I'm not aware of any peer-
reviewed studies where scientific experts have found any long-
term risks to the public.
Mr. Franks. So essentially we're dealing with kind of the
individual reports and things of that nature and not able--when
we talk about science here, that has been mentioned several
times--we don't really at this point have any science that
indicates even specifically, much less incontrovertibly;
correct?
Ms. Horinko. Not that I am aware of, Congressman.
Mr. Franks. There has also been some criticism regarding
uneven enforcements of procedures used in the debris removal.
Didn't the IG report find it was New York City that was
responsible for the debris removal as well as the demolition of
that debris?
Ms. Horinko. That I am not specifically aware of,
Congressman.
Mr. Franks. Do you know if the IG found that FEMA agreed to
fund indoor cleanup programs, something that FEMA normally does
not do, because the EPA provided FEMA with justification for
such a program, and could you elaborate if you know anything
about that?
Ms. Horinko. Yes, indeed, Congressman, I know a bit,
although I was not involved a whole lot. But I do recall the
region II folks coming to me saying that they needed some help
with FEMA Headquarters securing funding. In fact, I believe
they went over to the White House and met with some staff who
were very helpful with FEMA.
Mr. Franks. Isn't it also true that the IG has found
contemporaneous documents showing that New York City told EPA
it did not want EPA's assistance with the indoor cleanup
program?
Ms. Horinko. I believe that was the case in the beginning,
but they came to agree that that would be a good way.
Mr. Franks. So why didn't EPA simply push New York City
aside and take charge of the indoor cleanup program themselves?
Ms. Horinko. We enjoyed a very collaborative relationship
with the city. Within the national response plan EPA works
under FEMA's direction, under the city's leadership, and so we
wanted to make sure that we followed the established procedures
in any disaster.
Mr. Franks. So I might ask you, Ms. Horinko, before my time
is up here, a question that I have asked a couple of other
panel members. Do you know or believe that there was ever any
conspiracy between EPA and the White House to deliberately
convince people to go into unsafe areas?
Ms. Horinko. No.
Mr. Franks. Mr. Chairman, I guess I'll yield back what time
I have.
Mr. Nadler. Thank the gentleman. Mr. Scott is recognized
for 5 minutes.
Mr. Scott. Thank you. Ms. Mattei, if you had gotten better
information, what could the public have done different?
Ms. Mattei. I think people could have done a lot to avoid
exposure, people could have had professional cleanings of their
home, they might not have had to fight with their insurance
companies over that. I work in my office, but if I had to work
at home for a while, I could. We're living in the 21st century
and there are many alternative ways to get things done. So
people could have protected themselves quite a bit.
If I could just take a moment, I'd also like to point out
that there have been peer-reviewed scientific studies on health
impacts from the Ground Zero contamination, both a survey that
was published in the American Journal of Epidemiology about
residents, 43.7 percent of 2,362 surveyed residents had new
onset upper respiratory systems that persisted a year after the
attack. There have been studies on newborns of women who were
exposed to the dust cloud, smaller birth weight than normal.
And also a very disturbing study about genetic mutations,
procarcinogenic DNA level at a higher level in women who were
exposed to the dust cloud and also in their newborns.
So I think there is some peer-reviewed information out
there now about health risks from the 9/11 contamination to the
residents in the area.
Mr. Scott. Do any of those studies speak to the allowable
exposure risk of asbestos?
Ms. Mattei. I have been hearing today that there are safe
levels of exposure to asbestos. I have to say that's kind of
news to me. If you float around on EPA's Website you'll find
statements that there's no safe level of exposure to asbestos,
and there is new information that's come out that asbestos not
only causes cancer but also can wreak havoc to the immune
system.
So I'm finding those statements very questionable today.
Mr. Scott. Thank you.
Mr. Newman, you served on the EPA World Trade Center Expert
Technical Review Panel. Can you give us information about what
you did on that panel and what the conclusions were?
Mr. Newman. The panel was charged with assessing the
extent, if any, of residual indoor contamination from 9/11,
with identifying and proposing methods for addressing unmet
public health needs stemming from 9/11. We engaged in extensive
discussion on some of these issues, particularly an attempt to
devise a sampling and cleanup plan for Lower Manhattan
residences and workplaces over the course of a year and a half
or so. Ultimately with regard to that issue, EPA chose to
ignore or reject all of the panel's proposals, recommendations,
and concerns and disbanded the panel.
In regard to our attempt to address issues of broader--
issues of public health, as we were mandated to do at the
implementation of the panel, those attempts to engage in those
broader discussions were largely thwarted by EPA.
Mr. Scott. Who were the members of the panel and how did
they get appointed?
Mr. Newman. It was a rather unique construction for the
panel. At least initially there was equal representation from
government agencies such as OSHA, EPA, FEMA and New York City
Department of Health, New York City Department of Environmental
Protection, Coast Guard Strike Force, et cetera, along with
academics and technical experts, including nongovernment
technical experts, including myself.
Mr. Scott. Were the conclusions a consensus? I mean were
there differences of opinion?
Mr. Newman. There were continual differences of opinion.
There was no mechanism in the panel process for votes or
consensus reaching. Nevertheless, there was on certain issues
and at certain times fairly robust discussions, at which points
of agreement were readily apparent and those points of
agreement ultimately were ignored in the sampling plan that
EPA------
Mr. Scott. Did you issue a report with this consensus?
Mr. Newman. There was no mechanism in the panel process for
the panel or panel members to issue reports. There were a
large------
Mr. Scott. How did you communicate a consensus?
Mr. Newman. Through discussion at panel meetings.
Mr. Nadler. Thank you. I will now yield myself 5 minutes.
Ms. McGinnis, you were asked--before I get to that, the
Inspector General reported that the so-called EPA cleanup of
2002 to which I think you referred to a few minutes ago, was
against scientific standards, totally inadequate, and
essentially useless. The Inspector General reported that the
site, namely the whole downtown Manhattan, Brooklyn, maybe
Jersey City, had not been properly characterized as normal
procedures say it should be, and that what should be done in
order to assess indoor contamination is that you should take
several hundred inspections of indoor spaces and concentric
circles out from the World Trade Center, find out where in fact
the contamination indoor is, maybe three blocks in one
direction, maybe three miles in another direction and wherever
that was found, whatever geographic area, every building in
that area must be cleaned.
That was the IG's recommendation. I think most scientists
who have looked at that have concurred with that. Nothing like
this was done, obviously. Given that fact, Ms. Horinko, can you
say with assurance that thousands of indoor spaces today are
not contaminated?
Ms. Horinko. Obviously, I don't have data on every house or
every apartment.
Mr. Nadler. I didn't ask about every--talking about large
numbers.
Ms. Horinko. I believe that large numbers of the homes in
lower Manhattan are safe.
Mr. Nadler. On what basis do you say that?
Ms. Horinko. I relied upon the experts in EPA region II who
designed the program.
Mr. Nadler. But everyone, the IG, et cetera, says that
program was nonsense, it wasn't based on scientific standards.
Ms. Horinko. I can tell you the program was design------
Mr. Nadler. Do you believe there was a 30,000-high-foot
wall at Canal Street and therefore they didn't have to look
north of Canal Street all along the East River; therefore they
didn't have to look at Brooklyn?
Ms. Horinko. I relied on the professionals' expertise.
Mr. Nadler. Well, using common sense, could any
professional in his right mind say that you have to inspect
below Canal Street but not above Canal Street?
Ms. Horinko. All I can say, Congressman, is you have to
draw a line somewhere.
Mr. Nadler. Mr. Newman, would you comment on that, please?
Mr. Newman. In our discussions at the EPA World Trade
Center Technical Review Panel, EPA presented as a basis for its
determination of geographic boundaries for the sampling plan
aerial photographs from the EPA EPIC study. Those aerial
photographs showed deposition of visible dust and debris in
areas of Lower Manhattan and some areas in Brooklyn. However, I
believe and the panel believed strongly that geographic
boundaries needed to be expanded beyond what EPA proposed, and
we believed there is no scientific basis for utilizing visible
dust and debris as the basis for the extent of the geographic
dispersion of particulates, in particular, because the
particulates of most concern to health are not visible, they
are invisible. Those asbestos fibers and other particulates
will not show up on those photographs.
Mr. Nadler. Are you aware of any respected scientific
authority who will be willing to testify that the EPA so-called
cleanup plan in 2002 was scientifically valid?
Mr. Newman. EPA certainly has some.
Mr. Nadler. Outside EPA?
Mr. Newman. No, I'm not.
Mr. Nadler. You're not. Okay.
Ms. McGinnis, you were asked by the IG whether the EPA had
considered putting qualifications in the press releases and
whether there was resistance to putting in such qualifications.
You replied that you would not call it resistance but would
call it competing priorities. You stated that opening Wall
Street was one of the major competing priorities.
Is it your testimony today that considerations than public
health were considered when preparing EPA's early press
releases?
Ms. McGinnis. Economic security, national security, were
certainly considerations but health concerns were never
sacrificed because of those considerations.
Mr. Nadler. Do you believe that economic factors ought to
be considered in a health-based determination?
Ms. McGinnis. No, sir.
Mr. Nadler. Who discussed these competing priorities with
you?
Ms. McGinnis. I don't recall any specific conversations
about it. I do recall general conversations about whether the
Wall Street area was cleaned sufficiently for its
reopening.
Mr. Nadler. Thank you.
Ms. Horinko. Two more questions, one for Ms. Horinko. Ms.
Horinko, were White House officials involved in the decisions
on funding or cleaning up indoor spaces?
Ms. Horinko. I have no direct knowledge.
Mr. Nadler. You have no direct knowledge. Thank you.
I see my time has expired. I will recognize the gentleman
from Virginia--I am sorry, the gentleman from Arizona.
Mr. Franks. Thank you, Mr. Chairman.
Ms. Kreisher, thank you very much, again, for being here. I
wanted to ask you, the indications were that maybe somehow the
pressure that people speak of, that you had complained to Ms.
Whitman that--about the changes that the White House requested.
Is that true that you ever complained to her about specific
changes that the White House had requested?
Ms. Kreisher. I don't believe I ever went directly to the
Governor with anything like that. Eileen and I had discussions.
Again, you get your ego and all kinds of things involved when
you are having a dispute with someone, and I would go in and
say, Eileen, you have got to change this or call them or
something, and those things happened; but, no, I never went
directly to Governor Whitman.
Mr. Franks. I think every Member of Congress identifies so
much with that when we have discussions with our press
secretaries and there is always--of course, Members of Congress
are superior in every way in terms of what words to use. But
it's an ongoing situation. I have hit on a central theme here
throughout this entire Committee and that is simply: Was there
any conspiracy between the White House and the EPA to
deliberately convince people to go into unsafe areas? Was there
any effort like that, Ms. Kreisher?
Ms. Kreisher. No. In fact, this is very interesting to me
from my existing job at Interior, because we are being often
criticized that we did not listen to the scientists; that in
some way policymakers are changing what the scientists are
telling us--and that is the subject of other congressional
hearings--yet I seem to be getting overtones here that we
shouldn't have been listening to our scientists and should have
come up with another policy. It's just an observation that I'll
make.
Mr. Franks. Let me just ask the question a little broader.
Do you know of any instance in which the leadership of the EPA
or the White House deliberately acted in a way to subordinate
people's health to political considerations?
Ms. Kreisher. No, sir.
Mr. Franks. Even carelessly?
Mr. Kreisher. Not that I'm aware of.
Mr. Franks. Thank you, Ms. Kreisher.
Mr. Thernstrom, let me just ask you a kind of open-ended
question. Is there anything here that you think hasn't been
covered that you think that you would like to specifically
bring out? Again, along the lines that I talked about with Ms.
Kreisher, do you think there is any conspiracy here or any
deliberate effort or even any just blatantly careless effort on
the part of the White House or the EPA to subordinate the lives
and health of people for political reasons?
Mr. Thernstrom. No, sir; to the contrary. I think we made
great efforts under very difficult circumstances, as I
mentioned, constantly changing information, many different
Federal agencies working together. We made great efforts to try
to make sense of that information, to listen to the scientists
and to most accurately characterize the information that was
being given to us. So I don't think anything of the sort was
going on.
If you don't mind, I wouldn't mind taking this opportunity
just very briefly--I'm sorry that Congressman Pascrell from New
Jersey has left. He was quite exorcised about one particular
point in the September 14th press release, and if you don't
mind------
Mr. Franks. He was also exorcised about me calling some of
his ideas preposterous.
Mr. Thernstrom. I would like to correct this point for the
record. He said that in the draft press release from September
14th, that I struck the sentence that said the concern raised
by these samples would be for workers at the cleanup site and
for those workers who might be returning to their offices on or
near Water Street on Monday, September 17th. And he's correct
that I did strike that sentence.
But I think everyone in this room should listen to the
sentence that immediately followed that in the original draft
press release which was: OSHA Director John Henshaw emphasized
that the level found, even if resuspended in the air, does not
violate OSHA standards.
And so the context in the original press release that is
very clear, is that the press release spoke of a concern and
then it spoke of the fact that that was not a concern. And so
the appropriate editorial process was to clarify that, in fact,
the overall message from this press release was that there was
not a concern.
The original language was confusing and the language was
revised in a way that more clearly communicated the correct
language.
That's exactly the sort of type of thinking through these
draft press releases when we're working very quickly under a
great deal of pressure. That is the editing process we went
through collaboratively to try to best express to the people of
New York the information that they needed to know. And I have,
in all of the time that has elapsed, I have never heard that
any EPA scientist object to anything that we said to any way of
characterizing their reports to us. We had daily conversations
with them and to the best of my knowledge we accurately
characterized what they told us.
Mr. Nadler. The gentleman's time has expired. The gentleman
from Virginia.
Mr. Scott. Thank you.
Mr. Nadler. Is recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Thernstrom, in your testimony you stated that you were
not at liberty to talk to the Inspector General when you were
at the White House.
Mr. Thernstrom. Correct.
Mr. Scott. Who told you not to talk to the Inspector
General?
Mr. Thernstrom. White House counsel's office. I asked them
to try to make arrangements to have that interview happen and
those arrangements were not made, ultimately. I was never given
the go-ahead.
Mr. Scott. The White House counsel's office.
Mr. Thernstrom. Correct.
Mr. Scott. Who was the White House counsel at the time?
Mr. Thernstrom. That would be Mr. Gonzales.
Mr. Scott. Mr. Newman, we've heard suggestions that we
needed to listen to the scientists. What were the scientists
saying this time about the health concerns that people should
be aware of right after--on 9/11 and right after 9/11, while
the EPA was suggesting--as the public statements were being
made that things were safe.
Mr. Newman. I think as a number of witnesses have already
pointed out, scientists look to the data for their answers. And
so the question is the quality of the data and what data are
available. I think what many folks were confronted with were
the fact that--many scientists were confronted with was the
fact that, number one, we had inconsistent data. We had a large
body of data that indicated low or no exceedances. We had a
much smaller body that indicated fairly high exceedances under
certain conditions and certain circumstances.
The question then becomes which--and that's not unexpected.
In a circumstance like this where conditions change daily or
hourly in terms of fires and in terms of emissions, we would
expect to find inconsistent data. The question then becomes
politically and from a public health perspective how do you
interpret that data.
One approach would be to take the most reassuring data and
emphasize that. And another approach would be to take the
worst-case scenario and emphasize precautionary measures until
such time as we're comfortable and confident that hazards don't
exist.
Mr. Scott. With the dangers, with the potential dangers, if
you're not sure what to do, which way should you lean?
Mr. Newman. That also goes to the issue of enforcement. We
had applicable standards such as the OSHA hazardous waste
operations and emergency response standard, which basically is
the most effective, proactive, and protective--or standard for
workers engaged in hazardous waste operations, and we had
OSHA's decision not to enforce that standard or any other
standard.
Those standards essentially call for precautionary
approaches; that is, assume the worst and as the data become
available and become more credible, if appropriate, we can
scale down our levels of respiratory protection, our levels of
safe work practices, our levels of personal protective
equipment. But start off with the worst data, assume workers
are going to be exposed at that level, and assess the situation
in an ongoing fashion.
Instead, we had the opposite. We assumed the best and not
the worst and the consequences--the bottom line here is not the
data either way; the bottom line is that people are ill,
regardless of what the data show or don't show and regardless
of what our interpretation of the data is. I have to strongly
disagree with my esteemed colleagues from EPA. There is a
considerable body of data in the peer-reviewed literature, in
fact. It's unambiguous and noncontroversial and I'm amazed
people haven't read it. There is a considerable body of
evidence that indicates both Ground Zero responders as well as
area workers and residents are ill at alarming rates with
clinically diagnosed persistent respiratory illness and other
medical conditions, and the bottom line is if the data don't
show that, there's something wrong with either how we're
interpreting the data or with how we obtained the data--because
the bottom line is that if people are sick, we have a problem.
Mr. Scott. Ms. Mattei, if people are sick, as they are, how
can that possibly be consistent with the message that was being
given out?
Ms. Mattei. Well, it certainly was not. And that's why I
wrote the reports that I did, because you can't have it both
ways. You can't have it's safe, and thousands of people are
sick. We're talking about thousands of people, not 50 or 100.
Thousands of people are sick. Children of people exposed are at
risk. That's what procarcinogenic damage is. It makes a person
more vulnerable to cancer. That's what's happened to some of
these newborns. So it's a really serious situation.
I would also point out that, repeatedly, when private tests
were conducted, when elected officials paid for private tests,
when other people conducted private tests, they were finding
much higher levels of asbestos than EPA was. And I also want to
point out that the constant emphasis on asbestos was very
disingenuous.
I never heard EPA talking about the polycyclic aeromatic
hydrocarbons carbons. Thousands and thousands of pounds of that
went into the air. It was discovered on window films within a
kilometer of the site at high levels. Polycyclic aeromatic
hydrocarbons are a very toxic group of chemicals. And they
never talked about it, they never talked about a number of the
other pollutants from Ground Zero that we should have been
concerned about and watching for. It was easier to just focus
on one chemical, and that's what they did. But that was wrong.
It was definitely a wrong thing to do.
Mr. Scott. If you could just respond------
Mr. Nadler. The gentleman is granted an additional 30
seconds, without objection.
Mr. Scott. Was that message coming from the scientific
community?
Ms. Mattei. David, do you want to respond to that, because
I'm trying to remember who said what, when. I knew there was a
fairly significant amount of research from data sources other
than EPA or other government resources that indicated the
possibility, the likelihood, and in some cases the reality of a
variety of a robust range of contaminants. However, that data
was not large in quantity, so there were a number of scientists
who have expressed concern through their research as the
possibility of the presence or exposure to other contaminants.
However, the data upon which most scientists relied, either
because they were in the Agency, such as EPA, or because they
were--or the only data they had available to them if they were
outside EPA, was the EPA and OSHA data that was publicly
shared. That data, by and large, at least the data that was
publicly shared was, as EPA correctly said, reassuring. The
data that was not necessarily shared was less reassuring.
Ms. Mattei. I just want to add to that, that we're not just
talking about what science would indicate but the regulations
on dealing with hazardous releases calls for that kind of a
comprehensive assessment. You're not just supposed to look at
one chemical when you have a release, a hazardous release;
you're supposed to find out what's in it, where did it go and
who was exposed? That didn't happen here.
Mr. Nadler. Thank you. The time of the gentleman has
expired and I'll grant myself 5 minutes. I recognize myself, I
should say, for 5 minutes.
First of all, let me ask Mr. Thernstrom, an EPA press
release from September 13 says that the collapse of the World
Trade Center buildings is unlikely to cause significant health
effects.
From September 2002 to September 2003, the CDC, Centers for
Disease Control, New England Journal of Medicine, Mount Sinai
School of Medicine, all issued reports demonstrating that
rescuers, cleanup workers and office workers, were sick as a
result of their exposure to WTC dust. And yet the White House
Council of Environmental Quality asserted in October of 2003
that quote, ``We continue to stand by the information
distributed in press releases regarding the potential long-term
health risks,'' close quote.
There have been a myriad of subsequent peer-reviewed
studies documenting chronic health effects, as has been
mentioned.
Do you still stand by the information distributed in the
press releases regarding lack of potential long-term health
risks in spite of all what we know today?
Mr. Thernstrom. Congressman, I don't actually recognize the
October quote that you are reading to me. That certainly was
not something I wrote. I'm sorry if------
Mr. Nadler. First of all, it's a September quote. But
forget that quote. There are a whole bunch of quotes we've been
talking about all afternoon here saying in effect that things
are safe, things are good, things are reassuring, we're not
going to have health problems from the World Trade Center.
We now know that that wasn't--I think we know from all the
studies and from the reality, that that wasn't correct; and yet
the White House in its latest pronouncement, which was 3 years
ago, said they stood by it. Do you still think they ought to
stand by those?
Mr. Thernstrom. I wasn't working for the White House 3
years ago so I can't speak to what they said then. Honestly, I
really don't feel like I have the expertise to speak to the
health effects of the World Trade Center.
Mr. Nadler. You're still not willing to say that all these
people who are sick, a lot of them are sick because of the
World Trade Center.
Mr. Thernstrom. Congressman, I simply don't have an
expertise on that subject. All I can say, what we------
Mr. Nadler. Let me ask Ms. Mattei and Mr. Newman. You
mentioned, Ms. Mattei, I think, that there was--I think you
said a paucity of data with respect to asbestos and so forth.
There is one thing I wanted to get in the record here. The EPA
was using PLM test methodology all over New York City except in
its own building. Now, in 1994 the EPA said the PLM test
methodology was old-fashioned, not accurate, not up to date,
and they ought to use the TEM methods. We know that the TEM
methods will detect small asbestos fibers that are produced by
the pulverization such as occurred at the World Trade Center,
that the PLM method will not.
Do you think that most of the, or many--much of the EPA
asbestos readings taken with PLM methodology was simply not
reliable for that reason?
Ms. Mattei. Certainly the TEM tests revealed higher levels.
Joel Cutherman worked with both BEP and EPA staff at one point
to test a split sample and found that there were much higher
readings of asbestos fibers using the TEM method than the PLM.
It is not only better at identifying short fibers, but also the
very thin fibers because it tends to produce thin fibers.
I would point out it wasn't EPA that tested. It was
actually the General Services Administration. Pretty much
everybody else was using--everybody was using TEM except the
EPA. Kind of baffling.
Mr. Nadler. Why was that not done?
Ms. Horinko. We relied upon the folks from region II and
thought we should use------
Mr. Nadler. Ms. McGinnis, your September 13 press release
said--well, and also Governor Whitman earlier today kept
talking about the distinction between the quality air on the
pile and off the pile; on the pile you kept saying it was bad
and all the assurances that we were hearing that everything was
fine didn't relate to the pile, it related to off-the-pile.
That's the testimony we heard earlier today.
Now, September 13 EPA put out a press release that said
quote: Sampling of ambient air quality found no asbestos or
very low levels; tests have been reassuring of rescue crews and
the public to environmental contaminants. Obviously if it's
talking about rescue crews, you're talking about on the pile,
not off the pile.
So it is not true that at least some of the very reassuring
statements were dealing with off-the-pile only, and in fact
you're talking here giving reassuring statements about on the
pile. Is there any other way of reading this?
Ms. McGinnis. Could you say that again? I didn't follow.
Mr. Nadler. I will give myself another minute to repeat
that.
Ms. McGinnis. I understood everything except the sentence
itself.
Mr. Nadler. The question is: Is there any way of reading
that press release, or the part of it that says the tests have
been very reassuring about potential exposure of rescue crews
and the public, as meaning anything other than that that press
release refers to the wonderful air quality on the pile, not
just off the pile, and that everything we've heard today about
the reassurances not referring to conditions on the pile are
not quite true, or at least not completely true?
Ms. McGinnis. I'm reluctant to say yes or no on that
without looking at the context, and I don't have--haven't
looked------
Mr. Nadler. You will agree you have to be talking about
rescue crews, you have to be talking about on the pile.
Ms. McGinnis. I have no recollection.
Mr. Nadler. It's in tab 3 of your binder is the entire
quote.
Ms. McGinnis. What paragraph are you referring to?
Mr. Nadler. The sentence: Sampling of ambient air quality
found asbestos. Tests have been very reassuring about potential
exposure of rescue crews and the public to environmental
contaminants. This would imply rescue crews should not even be
concerned about air quality.
Do you want to comment, Ms. Kreisher?
Ms. Kreisher. I think it would be an error that I probably
made. At the time we were only 2 days out from the blast, and I
could have added that without thinking in terms of the
distinction between the------
Mr. Nadler. You're saying that all the reassurances were
not still on the pile, and that including that reference was
probably a mistake.
Ms. Kreisher. The same day, September 13, I can quote from
ABC News.com quoting me saying, ``It's one of those cases of
don't be stupid. If there's a chance, why not put on the
mask?'' We're talking to rescue workers at that point. Governor
Whitman was much more strident than I was about making sure
that there was a distinction.
Mr. Nadler. My time has expired. The gentleman from
Arizona.
Mr. Franks. Thank you.
Ms. Horinko, did you have anything that you wanted to add
as far as being able to answer any of the questions prior?
Ms. Horinko. I just wanted to add that I think all the
agencies involved worked as hard as they could to get the
information out in the hands of people who needed it, to make
sure that responders were able to develop standards under an
unprecedented situation, using their best professional
judgment. We will continue to monitor the studies that are
taking place in New York. People that are becoming ill, if the
study shows that it is the fault of the World Trade Center
exposures that they received, I think should get the best
possible access to health care and treatment they possibly
should. But at the end of the day, I think everyone involved
did their very best to get the information out as quickly as we
could.
Mr. Franks. Thank you.
Mr. Thernstrom, you have testified that you tried the best
you could to disseminate information based on what you thought
the science showed and that was reported to you, and that's
still your testimony essentially.
Mr. Thernstrom. Absolutely, sir.
Mr. Franks. I think the reason I mention that is the Bush
administration has been criticized sometimes for their, quote,
``lack of using scientific bases,'' and yet when they do so
then they are criticized for that as well.
I happen to be the grandson of a man who died of black lung
from exposure to a toxic substance and I know that that's a
heartbreak for families that begs my ability to describe or
articulate today. So I want to make sure that any people in
this room or under the sound of my voice know that I identify
and care very much about any illness that they have faced.
But the reality remains that when we talk about safe levels
of asbestos, there is asbestos in this room; it might be
measured in parts per quadrillion instead of parts per million,
and yet 6 years from now there may be people in this room will
come down with some type of sickness that would be impossible
to relate to that. I don't know what the ultimate effect--cause
and effect has been in these illnesses, I really don't know.
But my point is this: The overwhelming testimony that I have
heard today indicates to me that there was no deliberate effort
on the part of the EPA or the Administration to do anything but
the best they could to try to serve the country in a horrifying
tragedy, and I believe that they tried to serve both the future
and the people that were being--not only the ones that were
victims at the moment, but potentially victims in the future.
It again seems astonishing to me that we spend the time of
this Committee trying to punish those who are doing the best
they could.
Mr. Nadler. If the gentleman will suspend, please, we have
come almost to the end with proper decorum. Let's continue
that.
Mr. Franks. Just for the record, I understand the comment.
But for the record, I believe with all my heart that you were
trying to protect the American people, from what I have heard
today. So for that I commend you and hope that somehow we can
all work together to make sure this never happens again, and we
can help the people who are sick try to get better and prevent
this tragic situation.
But we need to remember--my last word--that it was not you,
the EPA or the Administration, that did this to the American
people; it was jihadist terrorists that continue to plot
against America.
Mr. Nadler. The gentleman's time has expired. The gentleman
from Virginia is recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I hope we
wouldn't set as our standard that there is nothing at all if
you can't find a potential conspiracy between the EPA and the
White House to intentionally victimize people. I mean the
evidence is clear that people are sick. There is something we
could have done to have prevented it. You don't have to find a
potential conspiracy to improve things so that it doesn't
happen again.
I want to thank all the witnesses for their testimony. They
have been here a long time, and I appreciate their patience,
and just ask any of them if they have any final comments,
particularly on indoor cleanup. If anyone wants to make a final
comment.
Ms. Mattei. Well, I was--just on the issue of the kind of
information that has been put out about indoor pollution. There
was something that I think was significantly misleading, and
that was a letter from the White House Council on Environmental
Quality to Senators Hillary Clinton and Joseph Lieberman,
stating that of the 4,100 residential units examined as part of
EPA's indoor program, only about 1 percent were found to have
asbestos at levels exceeding the health-based standard.
What that letter didn't say was that they didn't test most
of those apartments before cleaning them. They tested most of
them after cleaning them. So the data was significantly
misused. And it is hard for me to understand how anybody could
have misused the data in that way, because it was obvious what
the data was. And the way that it was presented in the letter
was so obviously misleading. So that is of great concern.
I am concerned about Ground Zero dust remaining in
buildings in Lower Manhattan. And until we have a proper
testing and cleanup program in Lower Manhattan, I consider the
Lower Manhattan residents--and I am also concerned about
Brooklyn, as is Jenna Orkin, who is here today, I consider
people to be at risk. And in particular toddlers who roll
around on carpets and bounce on soft furniture, where the dust
is likely to be trapped and can't get picked up by an ordinary
vacuum cleaner. That is my primary health concern for Lower
Manhattan and the parts of Brooklyn affected by the dust cloud.
It is not over for us.
Mr. Newman. Let's be very clear here that when we talk
about indoor cleanup, there fundamentally has been none. The
single EPA program from 2002 to 2003 was limited in scope.
Anything that was not a residence was excluded, or businesses,
workplaces, schools, firehouses, City Hall, hospitals, were
excluded and are excluded again in the current program.
The participation rate in 2002-2003 was only approximately
4,000 apartments. The efficacy of environmental cleanup in
those apartments was inadequate. Fundamentally, the same
methodology will be used in the current program, only I believe
the number is 295 apartments are enrolled in the current
program. So what we have, approaching the sixth anniversary of
the events of 9/11, is virtually zero testing and cleanup of
indoor spaces in Lower Manhattan.
Mr. Scott. Thank you, Mr. Chairman. And I want to thank all
of our witnesses for their patience. This has been a long
hearing.
Mr. Nadler. Would the gentleman yield?
Mr. Scott. I yield the balance of my time to the Chairman.
Mr. Nadler. I thank the gentleman. Let me simply say,
before I go through the rigamarole for closing the hearing, and
before I thank the witnesses, let me just say that I hope that
we have learned something at this hearing. I think we have
learned some things. But I think it is very clear that much of
the discussion that we were having about those press releases,
et cetera, was what was known then, and whether people should
have put out those reassurances then.
Looking backward--and my opinion is obvious. Looking
backwards now, it is very clear that whatever their intentions,
whatever their reliances, they were wrong; 70,000 first
responders are sick--10,000 first responders; 70,000 people are
getting sick. Of the 10,000 first responders tested, 70
percent. So 70 percent of the first responders are sick,
probably more of the people in the plume, and others. That
didn't happen because everything was safe and because the air
was safe. And Lower Manhattan and Brooklyn, and maybe Jersey
City, hasn't been cleaned up, as Ms. Mattei said.
And I hope that this hearing, which may be followed by
others, will begin the process of getting more of this out into
public view so that we can set the case for changing our
policies, which are still based on the same policies that got
us into this mess.
And by the way, the terrorists caused a terrible mess, but
an additional mess--I don't want to confuse that--an
unnecessary mess, with people unnecessarily sick, that we are
in.
With that I yield back my time. And I want to thank the
witnesses. I want to--with unanimous consent, I ask unanimous
consent to place the EPA Inspector General's report in the
record.\1\ Without objection.
---------------------------------------------------------------------------
\1\ See report entitled EPA's Response to the World Trade Center
Collapse: Challenges, Successes, and Areas for Improvement, by the
Office of the EPA Inspector General at http://www.epa.gov/oig/reports/
2003/WTC_report_20030821.pdf.
---------------------------------------------------------------------------
I want to thank all of our witnesses. I want to also thank
the many people who came here today from New York. I want to
thank the Members for their participation.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional questions for the witnesses,
which we will forward and ask the witnesses to respond as
promptly as you can so that your answers may be made part of
the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
With that, this hearing is adjourned.
[Whereupon, at 6 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Printed Hearing Record
Material submitted by the Honorable Jerrold Nadler, a Representative in
Congress from the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Supplemental Submission from the Honorable Christine Todd Whitman,
Whitman Strategy Group
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Response to Post-Hearing Questions from the Honorable Christine Todd
Whitman, Whitman Strategy Group
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
ATTACHMENT
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Response to Post-Hearing Questions from John L. Henshaw,
Henshaw & Associates, Inc.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Response to Post-Hearing Questions from Samuel Thernstrom,
American Enterprise Institute
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Response to Post-Hearing Questions from Tina Kreisher,
Communications Director, U.S. Department of the Interior
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Response to Post-Hearing Questions from Eileen McGinnis,
Senior Vice President, Whitman Strategy Group
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Response to Post-Hearing Questions from Marianne L. Horinko, Executive
Vice President, Global Environment & Technology Foundation
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Substantive Due Process Violations Arising from the EPA's Handling of
Air Quality Issues Following September 11, 2001
June 25, 2007
TABLE OF CONTENTS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]