Truth Out

Sick of being lied to by the EPA, 9-11 plaintiffs use the courts to force the answers they seek

Jenna Orkin doesn't expect to hear her truth about 9-11 unless someone forces the officials involved to tell it. For her, as for so many people downtown and in Brooklyn, 9-11 meant clouds of ash and smoke engulfing her apartment building, filtering down the halls of her son's Tribeca high school.

Within days of the World Trade Center collapse, someone ordered Environmental Protection Agency administrators to tell New Yorkers the air was safe. Reopen Wall Street, and bring back its thousands of workers. Reopen Stuyvesant High School, which Orkin's son attended. Ignore Brooklyn, where residents like her vacuumed inches-deep white ash from their windowsills. No matter that private tests showed the air remained full of lead, asbestos, mercury, benzene. No matter that, according to documents forced out of the EPA by a Freedom of Information request, the agency's own tests agreed that the air in Lower Manhattan—who wanted to bother with Brooklyn?—wasn't fit to breathe.

Even without testing, anyone could see the billowing cloud of debris released when the 110-story twin towers came crashing down. Dust from the Trade Center hung in the air for weeks. Putrid fires burned for three months.

Jenna Orkin tested her Brooklyn Heights apartment after 9-11 and found dangerous levels of asbestos.
photo: Willie Davis/Veras
Jenna Orkin tested her Brooklyn Heights apartment after 9-11 and found dangerous levels of asbestos.

"Any half-wit knew it was hell after 9-11," Orkin says. She has been pressing the EPA to test for and clean up toxic dust in her Brooklyn Heights neighborhood, across the East River from ground zero and smack in the plume's path. After tests revealed high levels of asbestos in her home, she paid thousands of dollars for a full abatement, which included ripping up the carpets. Her World Trade Center Environmental Organization website,, is devoted to the 9-11 fallout and replete with aerial photos and satellite images of the plume.

Not content with activism, she is today one of 12 plaintiffs suing the EPA in a class action lawsuit on behalf of residents, office workers, and students from Lower Manhattan and Brooklyn. Unlike so many others who've gotten sick from WTC-related pollution— including many of the plaintiffs—she hasn't experienced any symptoms. And neither has her son. What she's sick of is not being told the truth.

"We were being duped," Orkin says, leaning forward, "and I'd like to find out why."

Now she and her fellow plaintiffs just might. On February 2, U.S. District Court Judge Deborah Batts handed down a surprising pre-trial ruling, blasting the EPA for its response to 9-11 and allowing the case to go forward. That put Orkin and her colleagues one step closer to proving their claims in court.

In their 111-page complaint, they allege that thousands of people living, working, and attending school downtown and in Brooklyn were exposed to contamination after the EPA misled them about air quality. They claim that Christine Todd Whitman, then the EPA administrator, and her staff made false statements and failed to carry out its cleanup duties. As a result, they charge, the EPA violated their constitutional rights to be protected from being harmed by government officials.

In her 83-page ruling, Judge Batts found enough evidence for the case to proceed. She not only denied the EPA's motion to dismiss it, but refused to grant Whitman immunity. On the contrary, she scolded the former EPA head, declaring her statements so "deliberate and misleading" they "shock the conscience."

"No argument can be made that Whitman could not have understood from existing law that her conduct was unlawful," Batts wrote.

The EPA's spokesperson declined to comment on the ruling, referring questions to the Justice Department, which is handling the case. Its spokesperson, Charles Miller, refused to discuss pending litigation.

Whitman, now a New Jersey consultant, released a brief statement, expressing "outrage" and calling the plaintiffs' claims off-base. "Every action taken by the EPA during this horrific event," she said, "was designed to provide the most comprehensive protection and most accurate information to the residents of Manhattan."

Now that the suit can proceed, the truth of that statement will be put to the test. Bates's decision paves the way for the plaintiffs to sit government officials down and make them testify under oath. And this process of legal discovery, explains New York Civil Liberties Union lawyer Chris Dunn, who has sued federal departments, will prove enlightening for New Yorkers. All we know now is what EPA officials say in the press—in short, their spin. That's about to change.

"No one on the street can get an official to talk about government business," Dunn notes. "One of the biggest virtues of any lawsuit is that it can force the government to disclose information it won't otherwise."

By now, some truths about the 9-11 fallout are known. The lawsuit outlines EPA press releases issued in the first days after the attacks, beginning on September 13. All are reassuring in nature. But it didn't take long for private tests to contradict the rhetoric. By December 2001, the New York Environmental Law and Justice Project was collecting dust samples in elevator shafts and ventilation units downtown, and finding asbestos and other toxins at double the threshold of safety. A freedom of information request from the project yielded 800 pages of previously hidden EPA samples that had revealed the same.

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