Truth Out

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

Then in August 2003, the EPA inspector general issued a scathing 165-page report verifying such contradictions and disclosing some disconcerting news—that the White House had pressured the EPA to sanitize its warnings, for instance.

Says Joel Kupferman, of the law project, which serves as co-counsel in the suit, "No one can really argue there wasn't malfeasance."

No one can argue that people aren't getting sick, either. Take Bob Gulack, a plaintiff who works for the Securities and Exchange Commission. One month after the attacks, the SEC leased offices in a building on Broadway, two blocks from ground zero. Almost from the moment Gulack arrived, he began experiencing ailments he never had before. His lungs filled with fluid. He struggled to breathe. Doctors diagnosed him with reactive airway disorder and permanent lung damage, and attributed the ailments to 9-11.

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.

He wasn't alone. As a union steward for 150 SEC employees, he's documented symptoms among dozens of co-workers, from burning eyes to heart palpitations.

"This is brand-new and it started with the World Trade Center collapse," he says, sitting in a workaday Asian restaurant on 72nd Street. Gulack, who now collects workers' compensation for his 9-11–related illnesses, avoids going downtown. He does not visit his office or old haunts for fear of triggering his asthma. The only time he ventures into Lower Manhattan is to attend hearings on the 9-11 fallout.

Still, he says, "I'm one of the lucky ones."

Some of the plaintiffs forked out thousands of dollars—from $5,500 on up to $18,000—to rid homes and businesses of the toxic dust. Those who couldn't afford the professionals mopped it up themselves.

For the plaintiffs, the sense of injustice is profound. "We have been forgotten," says Gail Benzman, whose continual strained coughing is excruciating to hear. Benzman developed sinusitis and asthma while working in a municipal building on Center Street, seven blocks from ground zero. "There is nothing for people who have gotten ill outside the pit."

Jeanne Markey, one of three Philadelphia lawyers representing the plaintiffs, says the lawsuit has made these frustrated activ ists—who've spent years asking for credible testing, medical monitoring, and a real cleanup—suddenly much more powerful. "It's one thing to say someone lied," she observes. "It's another thing to take that person to court because of the lie."

Ask any lawyer who's sued the federal government and they'll tell you the same thing: Discovery changes everything. Mitchell Bernard, of the National Resources Defense Council, in Manhattan, has taken on the EPA and other government agencies in court. He says there's a difference between what an official says in public and under oath.

When a political appointee makes a pronouncement, Bernard explains, "he is not under any obligation to tell the truth." In a deposition, he is.

Officials tend to have a script, says the NYCLU's Dunn. Reporters may ask questions, but officials can refuse to answer. In a deposi tion, they can't. "Depositions are the surefire way to get government officials to answer questions they don't want to answer," he adds.

And then there are the documents. Confidential records the public cannot access even through freedom of information requests—internal e-mails, meeting minutes—become treasures unearthed in the discovery process. If plaintiffs can get their hands on such records, Bernard says, "What comes out of it could be illuminating in terms of what actually went on at the EPA."

Markey says she and her colleagues have yet to develop a strategy for discovery. But she ticks off a number of questions: What was the justification for the EPA's assuring statements? Did it rely on test results? What were they? "We're interested in discovering the basis of the statements," she says.

For now, the plaintiffs have to keep waiting. While Batts's decision allows the case to move forward, it's not the final say. Markey expects the Justice Department to appeal, stalling the proceedings.

Miller, the department's spokesperson, says the case is still under review, and points out that a second class action lawsuit against the EPA—one involving first responders on the debris pile—was dismissed earlier this month. "One judge went one way and the other judge went the other way," he says, suggesting a reason for appeal.

Appeal or no, the plaintiffs aren't about to give up. As they see it, the lawsuit represents the last chance to force the EPA to live up to its mission to protect New Yorkers. Somebody, they say, has to fight for accountability.

"Somebody has to blow the whistle on these guys," exclaims Diane Lapson, a plaintiff who heads the tenant association at Independence Plaza North, an affordable-housing complex three blocks from ground zero. Lapson, 54, a product of 1960s social activism, sits at her kitchen table, sipping coffee, looking out at the scarred Lower Manhattan skyline, and combing through snapshots taken from her building—aerial views of the 9-11 cloud, of the Hudson River pier where twisted metal was loaded on barges bound for Staten Island.

She's furious with the government officials who told her not to worry. "They're the naked emperors," she seethes. "Somebody has to stand up and say, 'You guys have no clothes.'"

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