Written Statement of Sandra Jaquith, Rocky Mountain Arsenal,
Site Specific Advisory Board
For the Citizens' Briefing on the EPA Ombudsman Issue
January 14, 2003

Thank you for the opportunity to speak to you today. My name is Sandra Jaquith and I have served as a citizen volunteer monitoring "clean-up" of the Rocky Mountain Arsenal ("RMA" or "Arsenal") in Denver, Colorado for the past 18 years.

The Rocky Mountain Arsenal is one of the largest militry contamination sites in the U.S., twenty-seven square miles with 181 separate contamination sites, boasting "the most contaminated square mile on earth." The "clean-up" is really a "cover-up" because the contamination will be capped and covered rather than removed from the site. The U.S. Army and Shell Oil Company are responsible for the 2-billion dollar "clean-up". Interestingly, however, Shell Oil Company contributed 80% of the contamination but pays only 20% of the "clean-up" costs.

The Rocky Mountain Arsenal will become a wildlife refuge when the "clean-up" is complete and is now being managed as a wildlife refuge. That means that 60,000 visitors (mostly tours of grade school children) visit the Arsenal each year, even during clean-up activities. At least, that was true until 1999 when the Army found sarin nerve gas bombs at the Arsenal.

The citizens of the RMA Site Specific Advisory Board requested an investigation by Robert Martin, the National EPA Ombudsman, in 1996. We listed 52 issues for him to review. Until that time, the EPA would discuss none of these concerns stating simply that the Record of Decision had been finalized. We were informed that we were free to raise any of these issues in a law suit when the clean-up was completed, scheduled to be 2011. After careful discussion with Mr. Martin, we focused our priority on six issues. Some of the most important issues we faced at that time were:

1.) There were no signs at the Rocky Mountain Arsenal warning visitors that it is an active hazardous waste clean-up site, as required under CERCLA.
2.) The Army intended to transfer a parcel of land for public use that had not been properly tested for safety.
3.) Children were solicited for tours of the Arsenal, in spite of potential dangers during the contamination clean-up.
4.) The Army found ten bombs filled with sarin nerve gas and wanted to blow them up in open air, contrary to the wishes of the citizens and State of Colorado. The Army still cannot find any record of the existence of the ten sarin bombs and thus does not know the number or location of other such sarin bombs.
5.) Decades of pestiside manufacture at the Arsenal indicated the existence of dioxins but the Army and Shell would not test the soils for dioxin.
6.) The Army has been trying to release more DIMP (a by-product of Sarin Nerve gas) into the water north of the Arsenal.

Robert Martin conducted eight hours of public hearings regarding citizen concerns and helped us to resolve many of these issues. He helped us to verbalize our concerns, prioritize our issues, and to build better working relationships with the State of Colorado and our elected representatives. He served as a liaison between us and the RMA decision-makers, particularly EPA.

During his work with us, new signs were posted, the school tours were stopped, dioxin soil testing was performed, the transfer of part of the Arsenal was halted and new soil testing was done, the sarin bombs were destroyed in a closed chamber that was brought to Colorado by the Army, and the Army was recently told by the Colorado Water Quality Control Commission that they would not be allowed to dump more DIMP in the water.

Robert Martin did not accomplish these things alone. He had no power to authorize or order changes. All of these actions were a direct result of EPA reconsideration of previous EPA decisions. Mr. Martin not only focused the EPA on safety and health issues, he helped them to use regulatory policies and national precedences to address genuine and contentious community concerns. He provided a context in which people could work together in new ways. He legitimized community concerns and focused on reasonable ways to resolve issues.

Our community is cleaner and safer because of the work of the EPA National Ombudsman. It is essential that every community have access to an ombudsman who is independent of the decision-makers, who is willing to listen to community concerns in a genuine and objective manner, and who will address these concerns in public, in the open, so that everyone involved can be held accountable for his or her part in resolving the issues. It is also essential that we have an ombudsman who understand the clean-up process and can talk knowledgably to contractors, regulators, and decision-makers.

Now that EPA has eliminated the Office of the National Ombudsman, it is time for Congress to provide the public with an independent ombudsman who reports to the Congress. It is essential that such an ombudsman be trusted by the communities who ask for her/his assistance. There is no matter more important than this. I can tell you that we interviewed Robert Martin for four solid hours before we agreed to request his assistance at the Rocky Mountain Arsenal.

In order to insure an independent, fair, and trustworthy Ombudsman, we suggest two things:

1.) The Ombudsman be nominated by a bi-partisan, joint committee of the Congress.
2.) The Ombudsman be reviewed and advised by a National Citizen Advisory Board to provide oversight to the operation of the office, make recommendations to Congress relating to future funding requirements, evaluate and make recommendations to the Ombudsman on case selection and prioritization, review and report to the public on comments and/or complaints directed toward the Office of the Ombudsman. The Citizen Advisory Board must represent as fully as possible the full range of past, present or potential sites requesting Ombudsman Reports, popular diversity and geographical regions.

The benefits to the public of an independent Ombudsman is that the assumption of fair treatment and acceptaance of unbiased judgment can lead to final resolution of contentious issues which otherwise may erode the precious trust between the citizens and their government. The preservation of that trust is the responsibility of all Americans and needs to be soberly considerred when providing for an independt Ombudsman, which is specifically created to maintain such trust.

The function of an independent Ombudsman remains an important safeguard against regulatory fiat in light of CERCLA's preclusion of normal and reasonable community review. Everyone in the clean-up process needs to be held accountable for their decisions and actions, even the EPA.

Written Statement of Rochelle Kalish, Executive Board Member, Stuyvesant High School
For the Citizens' Briefing on the EPA Ombudsman Issue
January 14, 2003

This is a brief statement to coroborate the testimony of Jenna Orkin, a Stuyvesant parent at the time of the 9/11 disaster. I am a parent of a child at Stuyvesant High School that was caught in the smoke that day. I am also a member of the school's Executive Board.

As the communities of downtown Manhattan were trying to cope and help each other through the difficulty of the post 9/11 days, the families from Stuyvestant found themselves at the mercy of the Board of Education which was not in any position to give direction on environmental matters. As the days unfolded, it became more obvious that the decisions being forced upon the students were not well thought out. They were returned too early.

Environmental considerations were not the priority, but appearances of normalcy were driving these economic and political decisions. The lack of leadership effected massive amounts of children. Many exposures would have been avoided if only the school building was properly cleaned before the children were forced to return. Not only were the ventilation systems not cleaned, the information was not shared with the parents. We made decisions to let our children return based on misinformation.

Ms. Orkin's written testimony explains the details of many postponed promises and how, ultimately, the lack of leadership and guidance from the EPA created unnecessary exposure and distress. My daughter now has been diagnosed with Pseudotumor Cerebri, which is elevated pressure in her spinal fluid. I cannot say for sure that an environmental exposure triggered this condition, but the timing of its onset leads us directly to November, 2001.

The EPA did not help the school children of lower Manhattan. It left a completely incapable organization in charge (BOE). If the Ombudsman's office had the chance to share information and guide the people making the decisions for this community, many of the struggles, confusion, and exposures could have been avoided.

Written Statement of Chuck Lehr, President of Pinellas-Pasco Technical Assistance Grant
For the Citizens' Briefing on the EPA Ombudsman Issue
January 14, 2003

I would like to thank the Project On Government Oversight and Danielle Brian for this opportunity to speak with you today and learn from my TAG associates. I am Chuck Lehr and I'm President of the community group Pinellas-Pasco Technical Assistance Grant, better known as Pi-Pa TAG, Inc.

We hold a Technical Assistance Grant under EPA Assistance #199493-01-1 to provide information on the cleanup of the Stauffer Superfund Site

Much of what follows has appeared in correspondence, the media, e-mail, etc. and in testimony before Congress - the latter given by my good friend and former Pi-Pa TAG, Inc. Secretary Heather Malinowski. In July 2002, she testified before the House Subcommittees on Health and on Environment and Hazardous Materials. As Heather has put so well, "we would like to express our complete and unconditional support for the creation of an independent, fully staffed and funded EPA National Ombudsman Office." The entire Board of Pi-Pa TAG remains committed to this pledge.

Stauffer Superfund Site in Tarpon Springs, Florida

Florida is mainly a limestone peninsula - a soft rock which dissolves in water, forming surface sinkholes and underground caverns and caves. This is also our main source of drinking water. It is a very fragile environment.

Tarpon Springs is a coastal residential community located on the Gulf of Mexico. The Anclote River, a navigable river to recreational-size boats and to larger working vessels, nearly splits the city in two. It is subject to tidal flooding and with hurricanes, serious storm surges could occur. The Stauffer Superfund Site is situated on 130 acres, both on the Pinellas and Pasco County Line as well as nearly a mile on the north shore of the Anclote River.

In 1981, Stauffer Chemical closed the phosphate ore processing plant, but left behind some 500,000 tons of chemical and radiological processing wastes, buried in drums, poured in unlined pits, and dumped directly on the ground. The site was placed on the federal EPA National Priority List of Superfund Sites in 1994.

Stauffer Management Company (SMC), with the approval of EPA Region 4, proposed containing all contaminants on site, rather than removing either a portion or all of the contaminated materials.

This was done without first completing:

1. The geophysical studies to determine the possibility of sinkholes; or
2. The hydrological studies to determine the flow of the contaminated water or the effect of tidal flow on the surficial aquifer; or
3. Determining the performance of the cement-soil mixture below the water table.

When questioned on the safety of these plans, we were told they would be answered in the future when the community as a whole asked the EPA to withdraw the consent decree until these studies were completed, they refused.

Current Situation

Two years have now passed since what we refer to as "The Walk Out Meeting."

The need for a return to an aggressive EPA Ombudsman is proven by what is now happening at the Stauffer Superfund Site. The following is directly attributed to Congress Bilirakis' efforts and those of the former Ombudsman, Mr. Martin, and his staff - even without his having completed his investigation.

Briefly:

• EPA Region 4 and Stauffer Management Co. agreed to withdraw the Consent Decree from the Department of Justice.
  
• Plans were drawn up for geophysical and hydrogeological studies, which are now underway.
  
• U.S. Geological Survey is included for their oversight expertise.
  
• EPA Region 4 and Stauffer are honoring the State of Florida Arsenic Soil Cleanup Level (3.7ppm).
  

Current Ombudsman/Inspector General Contacts

Our contact with the "New" Ombudsman/IG has been limited.

During the public meeting they attended after they had been appointed, they indicated they were working through "boxes" of data from the former Ombudsman.

In August 2002, we met with the IG and Ombudsman following an update meeting on the physical test running at that time. During our meeting, the IG reported some question was raised by Stauffer about remedial alternatives. Although I'm not personally certain about the intent of the IG's comments, they were somewhat critical of our Technical Advisors' non-answer to the question. This did enable us to open Feasibility Options by updating a list of currently used technologies for Superfund Sites like ours. Our Technical Advisor is currently making this update.

For the remainer of Mr. Lehr's testimony please download this pdf.


Written Statement of Patty Martin, Silver Valley People's Action Coalition
Citizens' Briefing on the EPA Ombudsman Issue
January 14, 2003

Historical Overview of EPA National Ombudsman Intervention at the Bunker Hill Metallurgical For the Superfund Site, Kellogg, Idaho

"So Close and Yet So Far Away"

The Bunker Hill Superfund site is one of the oldest and largest Superfund sites in the nation.

Long before there was any EPA involvement, the rich and prosperous mines of the area in North Idaho, otherwise known as the Silver Valley, began depositing pollution into the environment and poisoning innocent lives.

Mine owners were careless in enforcing safety measures for employers, often using fear and intimidation to ensure that production would be the ultimate outcome.

In 1983, 21 square miles of Shoshone County was designated to the EPA's National Priority List (NPL).

These acts of obstruction, corruption and delay are well documented for this site, beginning in the late 1800's and continuing up to the present day. These are not uncommon practices in company towns where the community is conditioned in one way or another to being obedient to the mining companies.

The highest lead levels ever recorded were found in children living in the Bunker Hill Superfund site.

Millions of tons of lead, arsenic, cadmium, mercury, zinc, animony and several other carcinogenic toxins are deposited over the hillsides and four towns in the area. Five thousand citizens are directly affected.

In 2002, in spite of intense involvement and input from the community, twelve children were found with elevated lead levels in the original BHSS.

In 1973, when production was at its peak, a fire in the filtration system in the smelter at the mine spewed massive amounts of sulfuric acid into the area. The company president calculated a profit loss ratio based upon shutting down and repairing the system as to the risk of liability to human lives if found out. The decision was made to continue operations.

In 1990, an Inspector General report revealed that an EPA Region Ten Administrator had taken extraordinary steps to prevent formal enforcement actions from being initiated against the owners of the Bunker Hill Superfund Site. As a result the smelter complex was allowed to deteriorate to the point that it was declared a public health hazard. Furthermore, prompt action was not taken to protect the public from contamination resulting from salvage operations, and partners in the Bunker Limited Partnership moved company assets to other corporations through stock and property transfers which complicated attempts to recover cleanup costs.

The report goes on to state "of primary concern to us (Inspector General) is the fact that nearly every Region Ten employee who we interviewed about the Bunker Hill Site expressed fear of retaliation from the Region Ten Administrator because of their cooperation with this office."

Today, one of the partners of the Bunker Limited Partnership and responsible for cleanup at Bunker Hill is the owner of the local newspaper. He also owns a destination resort on Lake Coeur d'Alene where the pollution has now spread. The same news source is used by the mining/tourism interests as a means to attack and write slanderous articles about individuals who work towards the cleanup. There is even a reporter who writes and encourages everyone to "bear arms and shoot EPA officials." Shoshone News Press, July 28, 2002.

No disclaimers or investigations warnings are ever given in defense of these private citizens for all the work and support they give towards the cleanup work.

In 1986, $25,000,000 of taxpayers' dollars had been spent on studies at the site, with no actual cleanup work taking place.

Members of the Silver Valley People's Action Coalition were turned down several times in their quest to acquire a Technical Assistance Grant, which would eventually give the community the opportunity to review reports of studies and the quality of cleanup work which had begun to take place.

The TAG would later reveal that in spite of some sound remediation work being engaged, the site was not being given an adequate cleanup.

EPA had negotiated in the early years with the mining companies for a lesser quality cleanup. There still remained in place tons of hazardous waste, 2 to 50 times more lead in the interior of homes than yards that were being replaced and, worse still, the pollution had spread.

Today, 1500 more square miles have been added to what once was the nations second largest Superfund site.

This year, 12 more children in the original site were poisoned by lead. One out of every four children in the extended site has an elevated lead level.

The pollution has spread into Washington State, tribal reservations, the Coeur d'Alene river and Lake, and the Spokane River. Approximately 200,000 more citizens are at risk of getting lead poisoning.

Shoshone county had the highest death statistics for the State of Idaho for the past 20 years.

The county also carries the greatest unemployment since the closing of the Bunker Hill mine and smelter in 1981.

Ombudsman Intervention

In 1994, Silver Valley People's Action Coalition, with the help of then-Representative Crapo, succeeded in having former EPA Administrator of Solid Waste and Emergency Response Elliott Laws visit the Superfund site. He saw and confirmed what the real experts, the affected citizens, had been saying for years - the site was not being cleaned up and needed to be.

EPA National Ombudsman Bob Martin was sent to intervene. For the first time in more than a decade and being named as an NPL site, the citizens were being heard and cleanup work was put into vigorous progress.

Work commenced and there was an element of hope for reaching and end to the monumental work of cleanup work. Within the Ombudsman's office, there was always an immediate response and constant oversight checks and balances taking place. Respect and efficient time frames for resolving problems pertaining to the cleanup were always followed up with, NOT for just the special interests groups and politicians but for ALL citizens.

Unbiased mediation efforts were undertaken. The Ombudsman made it a point to meet with every citizen and group who wanted to provide input. Many productive and extensive meetings were held relating to the Superfund site and its extensive and complex studies.

At Bunker Hill, with the initiation of a grassroots drive by the SV PAC, more than $50,000,000 was put back into the community in the way of wages and other indirect costs. This was in response to the community's desire to have EPA prioritize the hiring of unemployed laborers in the area - some who had not had jobs for more than ten years.

Real cleanup and real success was in the works at the the Bunker Hill site with the intervention of the National Ombudsman.

Post Ombudsman

A State of Idaho commission has been established to take over cleanup work and the millions of dollars still needing to be directed for, not only the original 21 square mile Superfund site, but 1500 more miles of pollution otherwise known as the Coeur D'Alene Basin project.

This Commission consists primarily of county and government leaders and mining interests who go out of their way to deny and delay the cleanup and have little regard for EPA's investment. The Commission chair, who is from Shoshone County, worked with the special interests to secure approval for $850,000 of taxpayer money to be spent on a National Academy of Science study intended to stall the cleanup work.

In August of last year, EPA Administrator Christie Todd Whitman visited the Bunker Hill Superfund site and extended Superfund site and told citizens that yard remediation and interior lead dust removal would still go on. Region Ten Administrator admitted that it was his job to see this work would go on.

In November 2002, SV PAC sent a registered letter to the Region Ten Administrator asking for him to respond to this removal work and when would it be finalized. To this date we have not heard back.

In 2002, twelve more children were found with elevated lead levels in a random blood screening drive.

In October of 2002, $9 million dollars had been appropriated for cleanup work within the original Bunker Hill Site. There is no work being done to remove lead from homes, the main pathway of exposure, and many more yards await remediation. Not to mention recontamination that has occurred in the yards already replaced years ago.

A December 2002 Spokesman Review front page headline read, "$21 Million and Rising." Department of Justice attorneys have tallied up this amount just for legal work in trying to collect cleanup costs from the mining companies.

In the meantime, innocent children, wildlife, and natural resources are being exposed to dangerous and serious mine waste. One out of every four children in the extended Superfund site is being poisoned by lead.

"In view of the serious nature of these ongoing problems at Bunker Hill, we (Inspector General) recommend you ask senior EPA management at Headquarters to provide oversight to ensure the site is being cleaned up with all due speed and the public's interest at the Bunker Hill Superfund site." Inspector Generals report, January 1990.

An independent ombudsman's position, just by its nature and definition, is important. It must remain non-partisan and independent and it needs to be resurrected and utilized immediately. This is the only way a person given this job can be effective in their work and can make sure problems are resolved in a fair and just manner. Past actions by the EPA National Ombudsman's office have demonstrated this ability.


Written Statement of Neighborhood Environmental Watch, Submitted by Carla Breeze, Wayne Decker, Tina & Adrian Panaro, George & Wendy Tabb, Miriam & Louis Songster, B. L. Ochman, Kate Bernstein, M.D., Miriam Nunberg, Esq., Linda Burdick, Barbara Einzig, Ban Leow, Caroline Martin - Treasurer of Family Association of Tribeca East (not displaced), Diane Dreyfus.
For the Citizens' Briefing on the EPA Ombudsman Issue
January 14, 2003

As residents of Lower Manhattan, we evacuated our businesses, homes, schools, and public buildings immediately following the WTC attack on 9/11/01 and were unable to return for two weeks. Environmental Protection Agency Administrator, Christine Todd Whitman, assured residents, employers, and employees that there was no contamination and our neighborhoods were safe. Numerous residents felt it was our civic obligation to resume our lives and send a clear message to the terrorists that we would not be intimidated. We assumed, incorrectly, that the EPA would ultimately reverse its original assessment and acknowledge the massive contamination of Lower Manhattan and begin appropriate remediation. Other residents have never returned to their homes, realizing that there was no EPA oversight or protection of public health. Test results performed n September and October of 2001 by an independent contractor for the EPA substantiate our concerns--these results were not released to the public until one year later, making it impossible for those living and working downtown to make informed health decisions.

The EPA's negligence and lack of oversight regarding the contamination of Lower Manhattan was especially salient at the hearings held in New York City by the National Ombudsman for the EPA, Robert Martin in February 2002. Without Martin's hearings, our concerns and the independent tests which prove the existence of hazardous substances in this and surrounding neighborhoods, would not be a matter of public record.

As a result of the EPA's negligence, numerous residents have been ill since 9/11/01, unable to resume their lives, despite being relocated. Numerous residents have upper respiratory complications, decreased pulmonary function, reactive airway disease, and spontaneous nose bleeds. Specific residents have been advised by their pulmonologists and environmental physicians that they should not return to their homes until the EPA comprehensively remediates all contaminated zones and enforces mandatory remediation of exteriors, interiors, and HVAC systems for asbestos, cadmium, dioxin, fiberglass, mercury, PCBs, silica, etc. According to our physicians any exposure is significant in terms of health consequences. Without an independent ombudsman as an advocate for those affected by the EPA's dissimulation and inaction, we are deprived of our health, our homes, our work, our neighborhoods.

As you will perceive from the letters we have written below, including testimony for the Senate Environment & Public Works Committee, the EPA continues to withhold critical testing information, is performing voluntary AWTC Dust@ clean up for individual apartments and lofts, without placing entire buildings under negative pressure, or otherwise following accepted protocols for asbestos (at the very least) decontamination. Cross and recontamination will be the result of the EPA's inadequate efforts in Lower Manhattan.

The EPA National Ombudsman fulfills a critical function: The investigation of actions or failures to act by the agency, officials, or public employees. The importance of this role has been demonstrated in Lake Township, Ohio, where Ombudsman Martin raised issues of conflicts of interest, inappropriate testing methods, quality of site characterization and adequacy of methods of remediation. Without an independent ombudsman at the EPA, residents are forced to appeal to the New York State Attorney General to compel the EPA to act responsibly. (Letter below)

1/7/2003

The Honorable Eliot Spitzer
Attorney General of the State of New York
20 Broadway, NY, NY 10281

RE: Compel EPA Compliance with National Contingency Plan, CERCLA, and AHERA, etc. as provided by the Administrative Procedure Act

Dear Attorney General Spitzer:

Why has your office done so little to protect residents, workers, and students exposed to asbestos, cadmium, dioxin, fiberglass, mercury, and PCB's (among numerous other substances) resulting from the WTC disaster in Lower Manhattan? Since 9/11/01 the EPA has never comprehensively tested indoor and exterior environments, provided accurate testing results to the public, disseminated health hazard information, or otherwise created a public record and transparent process as provided by federal statutes and due process. The EPA's risk assessment criteria and methodologies used in New York City do not conform to those mandated by CERCLA, placing New Yorkers at greater risk for developing carcinogenic diseases.

Since the appearance of Andrew Schneider's investigative article in the St. Louis Post-Dispatch of 12/27/02, by extrapolation one may assume that the EPA has avoided acting appropriately to protect New Yorkers' health, either for reasons of cost containment by the OMB or simply to sustain investment value of real estate and corporate interests. As Congressman Nadler has testified, however, by such irresponsible actions, city, state and federal administrations are supporting a liability situation in the future which could have grave economic consequences. See the NY Times article by Randal C. Archibold, 1/4/03, City Request Stalls Insurance for 9/11 Cleanup, in which he discusses future liability claims filed by residents and others exposed to hazardous materials as a result of deceptive information and inadequate protection of public health.

The EPA could be compelled to proceed with actions unlawfully withheld and unreasonably delayed according to the Administrative Procedure Act to comprehensively remediate the entire area affected by the WTC collapse, subsequent fires, and deconstruction at Ground Zero. Numerous residents, including ourselves are still displaced and will remain so even after the EPA "cleans" residential buildings because the EPA plan does not comply with the National Emission Standard for Hazardous Air Pollutants (NESHAP) under the Clean Air Act, nor CERCLA, or the NCP. See letter below to Ms. Jane M. Kenny, Region II Administrator July 28, 2002, discussing inadequacies of EPA scope of work and protocols, which does not provide systematic and compulsory abatement for interiors of all affected buildings. Unless entire buildings are evacuated and placed under negative pressure and abatement is mandatory, cross and recontamination will result.

Not one agency, in the city, state, or federal administration has taken responsibility to force the EPA to act according to the NCP, etc., consequently numerous residents, workers, and students have no other alt ernative other than relocation in order to protect their health. Numerous residents have been advised by their physicians to relocate permanently as a result of medical symptoms arising from exposure to hazardous materials.

When is your office going to represent and protect residents, workers, and students affected by the inadequate remediation of hazardous materials by the EPA? We and the other residents signing this letter are unable to return to Lower Manhattan until all contaminants have been systematically and comprehensively removed. Why are New Yorkers being subjected to a higher risk assessment than applied elsewhere in the United States? In your own statement of February 26, 2001, regarding the EPA's remedy for PCB contamination of the Hudson River, you acknowledge the danger of PCB exposure. Yet we have data confirming the levels of PCBs following 9/11/01:

Albany St & West St (WTC) -- 1400 ppm
Battery Pk & 2nd Pl -- 1600 ppm
North End & Park Pl -- 1100 ppm
Park Place & West Broadway -- 159 ppm

These levels (IT Corporation, Environmental Data Trend Report World Trade Center Disaster, October 29, 2001) contrast sharply with the levels of only 562 to 753 nanograms per gram (ng/g) (equivalent to parts per billion) found in the Lioy, et al. study published in Environmental Health Perspectives, VOLUME 110 , NUMBER 7, July 2002, available at: http://ehp.niehs.nih.gov

Thank you for your attention to these questions; we appreciate your prompt response.

Very Truly,

Carla Breeze, Wayne Decker, Tina & Adrian Panaro, Kyle York, George & Wendy Tabb, B. L. Ochman, Kate Bernstein, M.D., Michael Cook, Miriam Nunberg, Esq., Linda Burdick, Barbara Einzig, Ban Leow, Caroline Martin - Treasurer of Family Association of Tribeca East (not displaced)
-Neighborhood Environmental Watch, 105 Duane Street 10A, New York, NY 10007
917/941-7369

wdecker4cb@aol.com

July 28, 2002

Ms. Jane M. Kenny, Region II Administrator
U.S. Environmental Protection Agency
290 Broadway
New York NY 10007

Dear Ms. Kenny:

As residents who have been forced to relocate (we still maintain our business at the above address where we were living), we demand the EPA correct its violations of 40 CFR 300.155, 40 CFR 300.415(n), 40 CFR 300.805(a) and related statutes and regulations which require the EPA to create an administrative record at a central location to facilitate transparency of process and public participation. Lower Manhattan and surrounding affected zones should be added to the National Priorities List as provided by CERCLA.

The current EPA SOW to decontaminate individual residential spaces "upon request" does not conform with the requirements of NCP nor CERCLA. As a consequence, it fails to safeguard the public health in the following significant manner, thereby violating 40 CFR 300:

1) The current SOW is arbitrary and capricious since it is not based on testing using current methods and protocols to determine the extent and location of all contaminated areas, and currently excludes areas of Manhattan north of Canal and the areas of Brooklyn and New Jersey, that were affected by the WTC plume. The SOW not designate the EPA responsible for coordinated testing and decontamination of every building, interiors and exteriors, and every public space affected by the WTC plume and subsequent contamination from fires burning at Ground Zero.
2) The current EPA plan does not address the interiors of schools, courthouses, or other public buildings.
3) The current EPA plan does not address the interiors of businesses, particularly, small businesses, who are no more qualified to safely handle decontamination of toxic materials than are residents.
4) By failing to clean all affected buildings and areas in an orderly sequencing, the current EPA plan guarantees recontamination of cleaned spaces by spaces remaining contaminated, especially sidewalks, hallways, elevators, air circulation, heating and cooling systems and rooftops.
5) The current EPA SOW does not address issues such as removal of all textile wall and window coverings, carpeting and other fabrics in public spaces of residential and other buildings which retain contaminants. The plan fails to provide for replacement of ventilation ducts in residential and other buildings since the fiberglass wallboard used in the NYC building code is impossible to decontaminate according to experts.
6) Decontamination and testing must conform with federal laws and regulations, and use state-of the-art methods.
7) By requiring residents to request cleanup, the EPA plan places residents at further risk by making them responsible for:

a) Knowing the plan exists and how to access the EPA's assistance.
b) Knowing whether or not their spaces are contaminated, a testing responsibility belonging to the EPA.
c) Knowing that their spaces should be decontaminated and this activity synchronized with removal of hazmats in nearby outdoor and public spaces, in order to avoid recontamination -- since the EPA offers only one decontamination effort per residence.
d) Knowing that the information on the EPA website regarding "background" contamination is spurious and deliberately misleading.
e) Having sufficient access to scientific data and studies since no public administrative record has been established.

The U.S. National Contingency Plan (NCP) was enacted to establish an organizational structure and procedure to respond to the release of hazardous substances in an emergency. The purpose of the NCP is to provide the resources and authority for the federal governments Environmental Protection Agency (EPA) to respond in a manner that protects human health and the environment. In the event of a biological or chemical attack, the NCP is automatically invoked. Every elected official representing New York City and State should be acting to force the EPA to act according to federal statutes and regulations.

Very Truly,

Carla Breeze & Wayne Decker
Neighborhood Environmental Watch
105 Duane Street 10A
New York, NY 10007
917/941-7369
wdecker4cb@aol.com

June 5, 2002

Dear Environmental & Public Works Committee Members:

On June 25th you will be holding a hearing regarding the EPA's National Ombudsman position. Without the field hearings held in New York City by National Ombudsman Robert Martin following the 9/11 attack, there would be no public record of the EPA's disastrous mismanagement of the situation following the attack. Not only was the EPA's response inadequate (see testimony of Lt. Manuel Gomez, US National Guard among others), it was so inept as to consist of negligence.

According to testimony provided at Robert Martin's hearings, the EPA never made it a priority to protect the health and well being of emergency workers at Ground Zero nor that of the residents, employees, and business owners in the "affected zones," which incidentally, have shifted monthly depending on agency whim rather than scientific evidence (see testimony of Marjorie Clarke, Ph.D.).

Additionally, the EPA's proposed asbestos decontamination standard for New York City places exposure victims at risk for cancer of 1 in 10,000 versus the standard used elsewhere in the United States of 1 in 1 million. Why should victims of the al Qaeda attack be exposed to 100 times greater risk of cancer from asbestos exposure than employees and residents of Superfund sites elsewhere?

Nine months later, the EPA has not even made a preliminary assessment and feasibility study of the type and extent of environmental contamination of Lower Manhattan and surrounding areas. Without such an assessment, it is impossible for the EPA to propose a comprehensive plan which will actually result in the decontamination of every building affected by contamination. Without Martin's hearings, the concerns based upon independent scientific tests which prove the existence of hazardous substances (including but not limited to arsenic, asbestos, mercury, lead, chromium, cadmium, fiberglass, and silica) in residential, school, public, and commercial spaces would not be a matter of public record.

The EPA National Ombudsman fulfills a critical function: The investigation of actions or failures to act by the agency, officials, or public employees. The importance of this role has been demonstrated in Lake Township, Ohio, where Ombudsman Martin raised issues of conflicts of interest, inappropriate testing methods, quality of site characterization and adequacy of methods of remediation. It is egregious for the EPW Committee to ignore these same issues in New York resulting from a terrorist attack.

That there has been no Congressional investigation into the EPA's prevarication's, concealment of accurate data, and refusal to respond according to the National Contingency Plan, CERCLA, and Presidential Decision Directive 62 is shocking.

Protect American citizens, and victims of 9/11 by restoring the National Ombudsman Robert Martin to his former position and assure his independence and freedom to investigate any act or failure to act by the EPA.

Testimony of Jenna Orkin, Ground Zero Parent
Ombudsman Panel, January 14, 2003
Stuyvesant High Sschool, Toxic Site

I am the mother of a 17-year-old boy who was a student at Stuyvesant High School four blocks north of Ground Zero on September 11. The experience of Stuyvesant may serve as a microcosm for that of Lower Manhattan as a whole.

In a statement that will undoubtedly resonate for years to come, on September 13, Christy Todd Whitman declared the air downtown to be safe. Thus on October 9, four weeks after the WTC attack and after government agencies assured us the building had had a thorough cleanup, Stuyvesant reopened to cries of, "Get back to normal!" and, "Show the terrorists!" Wall Street was up and running again so all was right with the world.

Unbeknownst to us at the time, the week that Stuyvesant returned to its building was the week that Dr. Thomas Cahill of U.C. Davis conducted studies a mile north of Ground Zero which revealed levels of very- and ultra-fine particulates that were higher than at the Kuwaiti oil fields.

For the next eight months, Stuyvesant got a double whammy of toxic waste: Not only did they have the WTC site to the south, they also had it on their north doorstep where the waste transfer barge stayed while being loaded with the debris that was to be carted away to Staten Island. This placement was in violation of state and federal laws, but in the so-called "emergency" that prevailed for the eight months of the cleanup (and what sort of emergency was it, exactly, after the first few weeks when it was clear no one else would have survived? A real estate emergency? An economic emergency?) environmental laws were thrown to the four toxin-laden winds. The barge operation was host to diesel cranes and idling diesel trucks that worked 'round the clock seven days a week. Only now are the carcinogenic and toxic properties of diesel being more fully recognized.

How was Stuyvesant equipped to handle this onslaught? The school's filtration system was about 10% effective until the end of January when, at the insistence of the 6000 member Parents' Association, it was upgraded to 40% effectiveness. Although we had been told the school's cleanup had included the ventilation system, we later learned that in fact the ventilation system had not been cleaned.

For half the days until February, Particulate Matter 2.5 - dust that is small enough to penetrate deep into the lungs and not come out again - was above EPA regulatory levels. Often it was higher at Stuyvesant than at Ground Zero. Because of its relatively large surface area to volume ratio, P.M. 2.5 also adsorbed onto its surface whatever toxic chemicals were in the debris.

Isocyanates and tetrachloroethane also exceeded EPA limits when they were measured but, after the troubling results, they weren't measured again. High levels of lead were found in the gym where the lead could be inhaled deeply and in the cafeteria where it could settle on students' food. In response to these findings a representative from the Board of Education which, due to EPA's being missing in action, was in charge of cleaning up the schools wrote, "While lead can cause several adverse health effects, these are usually from prolonged exposure to the dust from the metal or when children consume lead-based
paint." Apparently he didn't realize that lead sprinkled on pizza will be consumed.

The synergistic effect of all these contaminants is only imperfectly understood. However Dr. Steven Levin of Mt. Sinai has pointed out that if you're an asbestos worker and a smoker, for instance, the effect is not simply twice as bad as being one or the other: it's eighty or ninety times as bad. To our knowledge, other synergies have not been so thoroughly studied.

In spite of the fact that FEMA had allocated 20 million dollars to clean the Ground Zero schools, the Board of Education refused to clean the ventilation system of Stuyvesant or even to do wipe tests. Finally parents, using the pro bono services of attorney Richard Ben-Veniste of Watergate fame, threatened to sue. The BOE capitulated and performed the wipe tests but held onto the results for six weeks. We threatened to sue again. They released the results which showed thirty times the level of lead which one might expect to find on the floor. (There are no standards for lead in ventilation systems.) After more threats of lawsuits the BOE agreed to clean the ventilation system over the summer.

During that cleanup they removed the auditorium carpet explaining they were doing so for 'aesthetic reasons.' A group of parents known as Concerned Stuyvesant Community had two segments of the carpet tested for asbestos using an EPA test known as ultrasonication. One of the samples came back with a reading of 2.4 million structures per sq cm. Several experts whom we have consulted believe this represents 250 times normal background levels. But all agree it is a level which calls for remediation. The carpet was replaced, the BOE still citing 'aesthetic reasons.'

However the BOE, which had since renamed itself the Department of Education, refused to perform ultrasonication or another approved test, American Standard Testing and Methodology microvac, on the auditorium seats. They claimed that these two tests were controversial. Instead they performed a test of their own devising which involved beating the seats with sticks and testing the air. This test has not been subject to peer review much less received the imprimatur of a body such as EPA or ASTM. Nor was it performed under anyone's oversight. We don't know what air volume or flow was used, where the monitors were placed nor how hard the seats were beaten. It is ironic that the DOE rejected two established tests on the grounds that they're insufficiently understood, opting instead to perform a test which isn't understood at all. Not surprisingly, however, the seats came up with a clean bill of health.

In an analogous situation in Brookfield, Connecticut where asbestos was also found, the school system was closed down until a level of 5000 structures of asbestos per sq. cm. (a relatively low level) was achieved. In at least one school the auditorium seats were replaced and ceiling tiles wet-wiped and hepa-vacuumed. This took place in EPA Region 2. We would like the same treatment in EPA Region 1.

However, of the 20 million dollars which the DOE received from FEMA to clean the Ground Zero schools, at last count they had used only ten. While we wish they had used all twenty, we do not even know what they did with the ten million dollars they spent. Perhaps it is some of that money that was used to lure students at the High School for Leadership and Public Service back to school when they complained last year how upsetting it was to watch body parts being carried past their door. The school handed out fifty dollars worth of gift certificates to bookstores and Modell's Sporting Goods to students who achieved a certain level of attendance; one hundred dollars worth for perfect attendance.

Resident Remove Tons Of Toxic Debris From Apartments

Meanwhile Lower Manhattan residents were no better off. In the days immediately following 9/11, the EPA bequeathed responsibility for indoor air to city agencies. Rising to the challenge the NYC Department of Health recommended that to clean up the dust in their apartments, people use a wet rag. Ever willing to lend a helping hand, the Red Cross gave out buckets to assist in what was being portrayed as nothing more than a piece of heavy-duty housecleaning. Where the dust was really bad, the DOH recommended that residents wear long pants.

Armed with this advice, residents such as Michael Cook threw out furniture and over 150 twenty gallon bags of contaminated debris. Not surprisingly, many residents soon suffered rashes and respiratory symptoms such as chronic and/or the newly coined "chemical" bronchitis. Those who could afford to moved out of New York. Others moved to hotels temporarily.

A third group manifested a burgeoning distrust of government agencies by hiring independent contractors to test their apartments. Some of these tests revealed high levels of cadmium, lead and mercury in the ventilation system. One woman, Nina Lavin, who had shut off her ventilation system on September 11 in anticipation of environmental havoc, nonetheless had twelve times normal background levels of asbestos across the room from the window. She is now in limbo, living in a hotel.

Illness Spreads

At Stuyvesant also, a Health Hazard Evaluation performed by the National Institute for Occupational Safety and Health found that 60% of the staff had had respiratory and other symptoms which they attributed to their exposure to the air at school. No such study was conducted among students. However parents reported that their children had been diagnosed with new-onset asthma that could last the rest of their lives; chronic sinusitis entailing heavy doses of steroids and antibiotics and chemical bronchitis. One girl had her first asthmatic episode in seven years - an attack that landed her in the Emergency Ward - after swimming in the Stuyvesant pool which had not been cleaned.

The Deputy Chancellor of Schools complained that parents' reports of illnesses were "anecdotal." This is true. In the absence of a scientific study, all we had to go on was anecdotal reports. He also said, "we believe the events of September 11 and its emotional aftermath have contributed to a number of these incidents." In other words, the illnesses were at least partly psychosomatic. The Deputy Chancellor did not elaborate on whom he meant by "we."

Ombudsman Arrives

After several months of attending hearings and talking to scientists, by February, 2002, I had amassed enough evidence to convince my ex-husband that our son should not be in the Stuyvesant building. Crucial among the pieces of evidence I'd acquired was a letter from the EPA Ombudsman, Robert Martin, saying that the Stuyvesant building was not fit for habitation. This letter was unique in its status as an advisory from a governmental authority and critical in tipping the balance in my exhusband's thinking.

Ombudsman Martin and his Chief Investigator Hugh Kaufman also held two hearings which provided a turning point in the struggle of Lower Manhattan. While the State Assembly and City Council had held several hearings each, these ultimately resulted in little discernible change. They seemed designed to do exactly what the term said: to hear. A roster of officials heard, shook their heads in wonder and pity but in the end, were unable to do anything.

In some ways those hearings may even have done more harm than good. For the arrangements of the local hearings were always the same: Agency representatives spoke for the first three hours while the news media were in attendance. Invariably they presented a rosy picture of how hard they were working and the pleasing results. At noon, the media rushed out to edit their stories regardless of the fact that they'd only heard half.

In the afternoon we, the hangers-on, the dregs of the hearing, got to say our piece to a room vacated by all but the most zealous advocates of our cause. By that time even most of the panel had fled leaving a token member who would nod sympathetically in between taking calls on his cellphone.

The Ombudsman hearings were the opposite of this sorry picture. The first witness was Dr. Cahill of U.C. Davis who revealed for the first time the news about ultrafine particulates a mile from Ground Zero. Other representatives of our side of the story followed him, interspersed with Agency reps. Ombudsman Martin and Chief Investigator Kaufman asked knowledgeable questions, having done a great deal of legwork and homework. Agency reps didn't get off lightly.

Nor did we. The hearings went on until 11 p.m. But there is no place we would rather have been. With the Ombudsman hearings we felt a change of direction; in every sense of the phrase, a breath of fresh air.

EPA Agrees To Clean Apartments

As a result of pressure from the Ombudsman and his Chief Investigator as well as Congressman Nadler and other elected officials, on May 8, 2002 the EPA announced it would clean apartments in Lower Manhattan south of Canal Street or test them for asbestos. Not workplaces or schools; just apartments because, they said, they had to start somewhere. When asked if they would consider expanding their cleanup above the arbitrary boundary of Canal Street or into Brooklyn where NASA photographs show the plume went on September 11 itself when 95% of the airborne debris from the disaster fell, the EPA said they were looking into it. With this they opened a hotline and waited for the phone to ring.

Over the next seven and a half months it rang about six thousand times, for approximately one out of five residences. The problem was EPA's outreach. They sent out only one flier that we know of and many residents didn't receive it. In addition, EPA's ads never mentioned cancer or the other ills that might ensue from living in contaminated apartments. Indeed, EPA said they did not expect serious long-term effects from the toxic substances that remained in people's apartments. Instead, they maintained that the cleanup was merely to 'assuage residents' concerns.' And since the EPA was telling them they had no reason to be concerned, most people didn't bother to call. Besides, about a quarter of the residents in Lower Manhattan are new to the area, having been lured by liberty bonds worth up to $14,000 and have no idea they could have moved into a toxic zone.

Cleanup Plan Is A Farce

The cleanup itself was also flawed although most people did not realize that. Common areas and ventilation systems were largely ignored. This meant that apartments which were cleaned might be recontaminated as soon as residents turned on the air conditioning or even opened the door. And because cleanup was voluntary, apartments could also be recontaminated by neighboring apartments that opted not to get cleaned. Finally, because small businesses were not included in the plan, they could recontaminate apartments that shared their buildings. Contrary to what certain government agencies have said, dust does not stay put.

Although the cleanup plan did not include workplaces, EPA did perform a pilot test of a small business cleanup at a restaurant at 112 Liberty Street. The contractors removed half the ceiling and left the contaminated other half. They did not lock the restaurant when they left so that during the night it was robbed. They lost the owner's keys. Perhaps by not receiving an EPA cleanup, small businesses in fact got the better deal.

While the response to the cleanup was lackadaisical, an even smaller number of people opted for the testing only option. Of those, about two percent were found to have apartments contaminated with asbestos. Extrapolating from this, City Councilman Alan Gerson has pointed out there may well be six hundred apartments downtown that are contaminated with asbestos, most of which have not been tested, let alone cleaned. And this does not take into account the hundreds of other contaminants that were released from the collapse of the towers and subsequent fires. EPA's testing plan omitted them all.

The testing only option was troubling for other reasons as well. In its hunt for asbestos the EPA was performing only air tests. However, at the Toxicological Excellence in Risk Assessment conference in October several scientists agreed that testing of hard and porous surfaces should be investigated and used more extensively.

And there were problems with the way the air tests were conducted. In its counting of asbestos fibers, EPA omitted fibers smaller than five microns on the theory that they would be handled by the body's immune system. However, scientists do not agree that this is so. At the Agency for Toxic Substances and Disease Registry conference which also took place in October there was discussion about the likelihood that length of fiber might not be so important as an aspect ratio of greater than 3:1.

The Ombudsman Resigns

In the mean time the Ombudsman had been relocated to the Inspector General's office and Robert Martin resigned in protest. We have read that the IG is now in charge of the World Trade Center case. This is news to us. We have not seen or spoken to her nor to anyone from her office. By contrast former Ombudsman Martin and Chief Investigator Kaufman continue to take an active interest in us and we hear from them regularly. They send us articles and give advice when we ask for it.

On December 28, following a media spree in which the EPA released studies which supposedly supported the Good News that the air downtown was less toxic than everyone feared, the EPA hotline closed. The EPA had never said what levels of contamination they found after all the looking they did at data from above Canal Street or in Brooklyn but whatever those data were apparently did not call for cleaning.

I question these results because I live in downtown Brooklyn and out of curiosity I had ultrasonication performed on my carpet. The reading came back 79,333 structures of asbestos per sq cm, a level of concern. I had an asbestos abatement which involved four contractors working twenty hours on a two-room apartment. The phase-contrast microscopy test that was subsequently performed showed that my apartment passed its Ahera test but still contained asbestos which might pose a one in three hundred cancer risk. This is much higher than the results EPA has reported for Lower Manhattan.

This year the travails of Lower Manhattan continue. We hear of new-onset asthma in Chinatown as well as a case in a girl who has homeroom in the Stuyvesant auditorium; a girl developing pressure in her spinal fluid requiring a spinal tap, possibly, her doctors say, the first of many; a high number of flus and a particularly virulent stomach virus; the return of respiratory symptoms which had diminished over the summer; a teacher with pneumonia.

When Christy Todd Whitman declared the air in Lower Manhattan to be safe to breathe she set in motion a chain of events that many of us believe will prove the undoing of thousands. Already Ground Zero workers are suing the city for their exposure to toxic substances during the recovery operation. Many rescue dogs are sick and at least one, "Bear," has died. We fear that their fate is a harbinger of that of residents, workers, our children and ourselves.

Need For Ombudsman

The foxes are in charge of the chicken coop. Having made initial mistakes they are in the position of having to defend those mistakes by compounding them. Clearly, there are not enough checks and balances in place. Not enough watchdogs to guard against the foxes nor enough penalties to make those in charge think twice about lying and compounding the lie. The penalties for compounding lies should increase exponentially over time to prevent the paramount ethic at work from being, "Cover your tracks at all costs."

To correct this abysmal situation, the Ombudsman must be restored and given full independence. His office provided checks and balances. As a watchdog he was the people's best friend. It is surely suspicious that as soon as his investigation of the WTC case got going, he was moved to the IG's office, "for his own good." If the move was truly in response to his request for greater independence, why did EPA not honor his request to leave him where he was? The office of the Ombudsman must be reopened for business and on the Ombudsman's terms.