FOR IMMEDIATE RELEASE
Tuesday, December 21, 2021
Contact
Paula Dinerstein (202) 265-6391; pdinerstein@peer.org
EPA Sued Over Refusal to Regulate Corrosive 9/11 Dust
Suit Seeks Redress for 9/11 First Responders Suffering Respiratory Injuries
Washington, DC — The U.S. Environmental Protection Agency’s corrosivity standard is so lax that it illegally subjects people who breathe or ingest unregulated alkaline dust to serious harm, according to a lawsuit filed by Public Employees for Environmental Responsibility (PEER). The suits seek a ten-fold tightening of the alkaline level of wastes classified as “corrosive” and thus “hazardous” under the Resource Conservation and Recovery Act (RCRA).
Corrosive alkaline dust released during building demolition and cement making can reach levels that cause chemical burns, especially to respiratory tissue. That was a critical danger facing First Responders who arrived at the World Trade Center in 2001 without health warnings or any personal protective equipment. EPA’s current standard also raises similar health risks for workers in demolition, landfill management, and cement manufacturing, among other endeavors.
EPA’s current 40-year-old regulation is ten times less stringent than the presumed safe levels set by the United Nations, the European Union, and Canada. This laxity means that dangerous levels of corrosive materials and dust are exempt from regulation. As a result, EPA does not issue public warnings about corrosive properties of dust from implosive demolitions of large buildings.
“When EPA said the air was safe following the World Trade Center attack on 9/11, it was tragically wrong – and it is still wrong today,” stated PEER General Counsel Paula Dinerstein, who filed the action before the U.S. Court of Appeals for the D.C. Circuit. “This case is fundamentally about dereliction of a legal duty, but it is also about public health.”
This suit represents a new phases in what has become a decade-long legal battle. In 2011, ten years after the 9/11 attacks, PEER and Dr. Cate Jenkins, an EPA chemist (now retired), filed a rulemaking petition for EPA to correct its corrosivity standard. After three years of agency inaction on the petition, PEER sought a writ of mandamus before this same U.S. Circuit Court.
In 2015, EPA pledged to the court to issue a tentative ruling by the following year. It did so, but then delayed for another five years before issuing its final denial of the petition this year. Yet, in its denial EPA was unable to show that the current lax standard is protective of public health.
After this protracted regulatory Rope-a-Dope gambit, PEER is taking the agency back to court challenging the basis of its denial as arbitrary and capricious.
“For this challenge to be successful, we will have to meet a very heavy legal burden, but the moral and environmental stakes are too high to walk away,” added Dinerstein. “EPA has been given ample opportunity to voluntarily address this gaping lapse, but it will undoubtedly require a lawsuit to get the agency to act.”
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