World Trade Center Recovery: Dereliction of Duty

Someone from another galaxy far away who has been reading about the illnesses and deaths of 9/11 World Trade Center recovery workers in the New York city newspapers for the past couple of months might be tempted to ask: "Excuse me, I don't understand. As the most advanced industrial country on planet Earth, don't you people have laws and regulations that mandate the use of appropriate respiratory equipment in cases where workers may be inhaling pulverized asbestos, concrete dust, benzene, PCBs and who-knows-what-else?"

He might hear a lot of excuses, but the only honest answer would be: "Uh, well sure, yes, but..., uh kinda, usually, except for..."

New York Times reporter Anthony DePalma wrote a long article today describing the federal government's failure to ensure that workers at the World Trade Center site were protected.

With mounting evidence that exposure to the toxic smoke and ash at ground zero during the nine-month cleanup has made many people sick, attention is now focusing on the role of air-filtering masks, or respirators, that cost less than $50 and could have shielded workers from some of the toxins.

More than 150,000 such masks were distributed and only 40,000 people worked on the pile, but most workers either did not have the masks or did not use them.

These respirators are now at the center of a federal lawsuit filed on behalf of more than 8,000 firefighters, police officers and private workers who say they were exposed to toxic substances at or near ground zero that have made them sick or may eventually do so. While residents and office workers in the area also suffered ill effects, the work crews at the site who had the greatest exposure are thought to have sustained the greatest harm.

From legal documents presented in the case, a tale emerges of heroic but ineffective efforts to protect workers, with botched opportunities, confused policies and contradictions that failed to ensure their safety.

The workers are suing the City of New York, which is seeking to have suit dismissed.

The story has become well known:

Ground zero was about the most dangerous workplace imaginable: a smoking heap of nearly two million tons of tangled steel and concrete that contained a brew of toxins, including asbestos, benzene, PCB's, and more than 400 chemicals. Indeed, recent health studies have found that many people who worked on the pile have since developed a rash of serious ailments, including gastrointestinal and respiratory problems.

In the chaos of the first 48 hours after the twin towers collapsed, only the city's firefighters had any personal protective equipment suitable for such an environment. But even that equipment was not sufficient.

Each firefighter is issued a full-face mask that is part of a Self-Contained Breathing Apparatus, also known as a Scott pack, which functions like scuba gear, supplying air while sealing out hazards.

But the tanks contain no more than 18 minutes of oxygen. The system works well if a firefighter is dashing into a burning building to rescue a baby. For a nine-month recovery operation, it was useless.

Once their Scott packs were exhausted, the first firefighters on the scene had no backup gear. That is why Firefighter Palmer Doyle and the crew from Engine Company 254 in Sheepshead Bay, Brooklyn, stopped at a hardware store on the way into Manhattan on Sept. 11 to buy every paper dust mask in stock.

The problem began with a statement by then EPA administrator Christie Todd Whitman assuring lower Manhattan workers and residents that the air was safe to breathe. DePalma reports that "the agency's inspector general concluded in 2003 that Ms. Whitman's statement was far too broad and could not be scientifically supported at the time she made it."

Personally, I think DePalma's being a bit too nice. The IG actually found that White House officials instructed the agency to be less alarming and more reassuring to the public in the first few days after the attack than EPA officials originally wanted to be. And earlier this year, Judge Deborah A. Batts of Federal District Court found that Whitman had deliberately mislead the public when she reassured the public after the collapse of the World Trade Centers that the air was safe to breathe in lower Manhattan and Brooklyn. The result of Whitman's lack of concern were devastating for recovery workers, according to Dave Newman of the New York Committee on Occupational Safety and Health who argues that after Whitman's statement, employers "had a green light to say, 'We don't need to use respirators because the E.P.A. says the air is OK.' "

The IG also found that

a federal emergency response team prepared a report on the day of the attacks recommending that respirators be used at ground zero.

But the report was never issued because it was decided that New York City, and not the federal government, should handle worker protection issues.

But the real culprit here is the Occupational Safety and Health Administration, the agency tasked by Congress to ensure the health and safety of American workers. And you can look long and hard at the Occupational Safety and Health Act without finding any exception for federally declared disasters:

As the magnitude of the recovery operation grew clearer, attempts were made to bring order to the operation. On Sept. 20 the city issued its first safety plan, and it asked the Occupational Safety and Health Administration to take charge of distributing respirators. In what would become a controversial move, OSHA used its discretionary powers to decide not to enforce workplace safety regulations but to act in a supportive role that would not slow down operations.

"Given that the site was operating under emergency conditions, it was normal that we should suspend our enforcement action and assume the roles of consultation and technical assistance," Patricia Clark, OSHA regional administrator for New York, said in a 2003 OSHA publication.

OK, in the immediate, chaotic aftermath, there may have been nothing OSHA could have done, but the cleanup of the site went on for nine months. In addition, similar "emergency conditions" didn't stop the Pentagon from escorting workers off the site if they weren't wearing proper respiratory gear and more than 90 percent of the workers at the Fresh Kills landfill on Staten Island, which was overseen by the Army Corps of Engineers, wore respirators, according to the Times.

OSHA, EPA and the Operating Engineers union bought hundreds of thousand of respirators for workers at the site, but most were apparently rarely used and then discarded.

So what was the problem? Dumb workers? Good question, and DePalma addresses it.

As anyone familiar with workplace safety issues knows, respirators have inherent problems. First, you can't just hand them to workers and say "Here, use them." Workers have to be trained to use them properly. People's faces are different shapes and not every respirator fits every face, so they have to be individually fit-tested to ensure that contaminated air doesn't leak in around the seals. .In addition, respirators don't work if a worker has a beard. Respirators are also uncomfortable, especially in the blazing hot weather that followed 9/11. With the thick dust, the cartridges had to be changed frequently. Finally, workers can't communicate while wearing respirators.

According to lawsuit, "Respirator fit testing done around the World Trade Center was illusory at best," the lawsuit says.

OSHA refused to answer questions about its handling of the respirators. John M. Chavez, a spokesman, said lawyers from the Department of Justice's environmental torts branch, which is handling trade center litigation, advised against talking to reporters about respirators because "the question goes to the heart of the issue of the litigation."

DePalma reviews all these problems with respirators, but then concludes that

Perhaps the greatest impediments to compliance were the confusing guidelines and spotty enforcement efforts. Overseeing the work, and worker safety, was a horde of government entities that, at its peak, exceeded 30 city, state and federal agencies with overlapping jurisdictions and, at times, contradictory policies.

Statements from the E.P.A. about the air being safe contradicted respirator requirements. OSHA eventually established a green line, which it actually painted around the pile, and ordered respirators to be worn inside the green line. But in November 2001 the various government agencies and private contractors entered into a partnership: OSHA agreed not to issue fines or citations, and the contractors vowed to follow regulations.

Oh well, that was then. This is now. Surely, we've learned our lesson, says our visitor from a galaxy.

You think? Last week I reviewed an article that described the demolition of asbestos-containing buildings in hurricane-ravaged Mississippi with no enforcement by EPA or OSHA of existing asbestos standards.

OSHA's response:

"Specifically, in regards to asbestos, we do not have OSHA compliance officers south of I-10 with that as an assignment, no," said Jesse Baynes, OSHA assistant area director in Jackson.

"We are not in an enforcement mode south of I-10 unless there is an investigation of a fatality or a complaint. It is still an area under a federally declared disaster."

Given what happened in New York, and what continues to happen in the Gulf, DePalma's closing is particularly chilling:

Both sides in the suit cast an uneasy eye on the future. The city clearly worries that if there is another attack it will not be able to hire contractors and respond to the emergency without fear of becoming entangled in legal liabilities, which could hamper its ability to restore order and protect the city.

In the same vein, the workers' representatives ask, if they are again called in to help, will the environmental and labor laws intended to protect them be enforced?