Michael B. Gerrard
New York Law Journal October 4, 2001

The destruction of the World Trade Center probably had greater short-term environmental impacts than anything else that has ever happened in New York City; the long-term effects remain to be seen. The fire and police departments and others responded courageously with, as all know now, tragic results. But the federal, state and city environmental and health agencies also acted quickly to determine if there were chemical hazards, especially from the huge quantities of smoke and dust that poured for days from the site.
 
This column analyzes how environmental law bears on the physical aftermath of this catastrophe - response, recovery and reconstruction.
 
Immediate Impacts: Air Pollution
 
The planned demolition of a building is preceded by an engineering survey, surveys for asbestos and lead, the cut-off of electric, gas, water and sewer service and many other precautions.¹ A systematic survey and abatement program for asbestos is mandated by the U.S. Environmental Protection Agency (EPA) under the Clean Air Act. ² The New York City Asbestos Control Law also requires a predemolition asbestos survey. ³
 
The WTC towers were built from 1968 to 1972. A slurry mixture of asbestos and cement was sprayed on as fireproofing material. But this practice was banned by the New York City Council in 1971. This halted the spraying, but not before hundreds of tons of the material had been applied. Some but not all of it was later removed in an abatement program. Asbestos was also used in other applications that ordinarily do not leave a friable (crumbly) residue, but that can be turned to dust under the extraordinary conditions that existed on Sept. 11. The combustion of building materials and furnishings by jet fuel might also be expected to generate some rather exotic chemicals.
 
After the towers collapsed, smoke rose about 1,000 feet and moved south over Brooklyn and Staten Island and out to sea. Many survivors in the immediate vicinity and rescue workers were subjected to serious smoke inhalation. In the days after Sept. 11 the EPA and the Occupational Safety and Health Administration took numerous air samples and reported that it found no excessive levels of asbestos, lead or volatile organic compounds in the air except at or near ground zero. Medical experts told the press that the air contamination did not appear to pose a public health threat, though it caused short?term irritation such as coughing and sneezing, and it reportedly set off some asthma attacks. However, rescue and demolition workers not wearing masks with filters may be receiving elevated doses of asbestos and possibly other chemicals. Many of the dust samples taken from surfaces in the surrounding blocks had high levels of asbestos, and the EPA provided special vacuum trucks to clean streets and surfaces.
 
EPA was authorized under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) ⁴ and the National Contingency Plan (NCP) ⁵ to take emergency action, using Superfund money. The Clean Air Act also authorizes EPA to take emergency action to abate actual or threatened releases of hazardous substances. ⁶
 
CERCLA and the Emergency Planning and Community Right-to-Know Act (EPCRA) provide that whenever there is a release of a "reportable quantity" of certain substances into the environment, a report must be promptly made to the National Response Center. ⁷
 
The WTC disaster must have released chemicals orders of magnitude times the reporting thresholds, but this reporting rule seems superfluous here.
 
Demolition and Removal
 
The WTC collapse is unprecedented in both amount (roughly 1.2 million tons) and, perhaps, in the variety and uncertainty of materials requiring disposal. As part of the search-and-rescue mission in the first weeks after the collapse, material was gingerly picked up and hauled by trucks or barges to the Fresh Kills Landfill on Staten Island, where officials searched for human remains and forensic evidence. As the operation moves into a search-and-recover mode, difficult questions will have to be faced as to how to deal sensitively with the fact that the remain of several thousand people are entombed at the site.
 
Eventually all the debris will presumably be removed from the WTC site. The Fresh Kills Landfill was scheduled to close by Dec. 31, 2001, by operation of a state law enacted in 1996, ⁸ and in fact it had stopped accepting waste several months before the deadline. The closure was brought on by the Landfill's negative environmental effects and not by a lack of space. A decision will have to be made whether to take most or all of the WTC debris (except for the ferrous metal, which is being recycled) to Fresh Kills for permanent disposal; in that case, the closure date may have to be extended. Otherwise, other repositories will have to be found.
 
Already Governor Tom Ridge (soon to head the new Office of Homeland Security) has agreed to allow landfills in Pennsylvania to accept some of this debris. The siting of any new construction and demolition (C&D) debris landfills in New York requires approval from the State Department of Environmental Conservation⁹ in what is typically a lengthy process.
 
A bewildering array of materials are buried in the rubble. The WTC reportedly had 200,000 tons of steel, 955,00 tons of concrete and 43,600 windows. It had untold thousands of computers, desks and filing cabinets. There were numerous restaurants, cleaning closets, motor vehicles in the garages, miles of electric cables with dielectric fluids, law enforcement facilities with arsenals of firearms, a gold and silver repository, air-conditioning units, apparently with freon, old electrical equipment, apparently with PCBs, and the remains of two hijacked jets.
 
To obtain a better idea of what toxic materials might have been in the WTC, I asked Toxics Targeting an environmental research firm in Ithaca, N.Y., to conduct a data-base search. It revealed that the WTC complex had several underground and above?ground storage tanks for various petroleum products, experienced numerous oil spills, especially in its electrical substations and housed a chemical bulk storage facility and several entities that generated hazardous waste.
 
Thus, it is likely that, scattered among the debris, is material that ordinarily could not lawfully be disposed at a C&D or MSW landfill and would need to go to facilities specially designed for hazardous, asbestos or petroleum wastes. Even if this material could be identified and separated out, transporting it to and disposing of it at such facilities would be far more costly than using Fresh Kills or other conventional alternatives. Moreover, the task of separating the material would be extremely laborious, would impede the disposal operation and would expose the workers to further hazards. Thus, special dispensation from the standard legal requirements for testing and separating waste may be considered.
 
In addition, no doubt the water from rain, firefighters' hoses and leaking pipes is creating a foul leachate that will create disposal issues.
 
Emergency Provisions
 
Thus, there is a tension between: the exigencies of the current situation and a strict adherence to the environmental laws, especially the hazardous waste disposal laws; the statutory closure date for Fresh Kills; and the requirement for environmental impact statements (EISs) for discretionary governmental decisions. Several mechanisms, however, allow many of the environmental laws to be trumped in emergencies.
 
A state statute allows the governor to suspend state and local laws and regulations during a state disaster emergency. ¹⁰ The State Environmental Quality Review Act (SEQRA) exempts from the EIS requirement emergency actions that are immediately necessary for the protection or preservation of life, health, property or natural resources. ¹¹
 
At the federal level, certain exemptions were triggered by the FEMA's declaration of New York City as a disaster area on Sept. 11. Under the Stafford Act, the federal emergency response is largely exempt from the National Environmental Policy Act (NEPA), SEQRA's federal counterpart. ¹² The federal government is also authorized to remove debris from disaster sites. ¹³ CERCLA, the primary statute creating liability for improper disposal of hazardous substances, explicitly exempts liability for releases of such materials caused by acts of war, ¹⁴ and it also exempts state and local governments from CERCLA liability when responding to emergencies. ¹⁵ The Oil Pollution Act¹⁶ and the Clean Water Act¹⁷ also have act of war defenses.
 
Repair, Reconstruction
 
Many buildings in lower Manhattan are still standing and structurally sound but will require repairs. Much of the infrastructure in the area (such as electric, water, sewer and telephone lines and train tunnels) also sustained damage.
 
SEQRA exempts "maintenance or repair involving no substantial changes in an existing structure or facility" and "replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site." ¹⁸ Building permits are ordinarily exempt from SEQRA. ¹⁹
 
Reconstruction at the WTC site is an entirely different matter. The site is owned by the Port Authority of New York and New Jersey, which in July 2001 signed a 99-year lease with a group led by real estate developer Larry Silverstein. Jockeying has already begun over who will have what degree of control over what happens on the site - the City of New York, the State of New York, the Port Authority (and thereby the State of New Jersey) and the Silverstein group. Within City government the situation is further complicated by the term-limits law and the impending election. There is extensive discussion of exempting the reconstruction from some of the environmental and land use laws.
 
New York City's major land use approval processes are consolidated under the multi-step Uniform Land Use Review Procedure (ULURP). ²⁰ The State Legislature has created several state entities that are exempt from ULURP when they build major projects in New York City. Most prominent among these is the Empire State Development Corp. (ESDC, formerly known as the Urban Development Corp.). ²¹
 
ESDC and these other entities are not exempt from SEQRA and statutory exemptions from SEQRA are rare, except where there is an environmental review process that it basically its functional equivalent (as is the case with the power plant siting process of Article X of the Public Service Law). Other than that, the Legislature has granted very few exemptions from SEQRA. ²²
 
Thus, if a standard pattern is followed, the Legislature will create a special entity for reconstruction of the WTC area, to be exempt from ULURP but not SEQRA. But there is nothing standard about the current calamity, and the decisions as to institutional and legal arrangements have yet to be made. It will also have to be decided whether any exemptions apply only to the area damaged by the attacks, or also to construction projects elsewhere that could replace some of 13.4 million square feet of office space that were lost and, if necessary, the 16.5 million square feet that were damaged. Since massive federal financial assistance will be involved, attention will have to be paid to NEPA; the NEPA exemption in the Stafford Act may not necessarily apply to the construction of buildings that differ much from what stood before the disaster. ²³ Congress could, of course, grant a full NEPA exemption if it so chose. Congress could also simplify the debris disposal process by clarifying the scope of the act-of-war exception to some of the federal environmental laws.
 

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¹See "Demolition," U.S. Army Corps of Engineers Safety and Health Requirements Manual, EM 385-1-1, §23 (Sept. 3, 1996), cdc.gov/niosh/elcosh/docs/d0100/d00100/sec23.
² 40 C.F.R. §61,145. See also EPA, Region 4, Demolition Practices Under the Asbestos NESHAP (2001), www.epa.gov/region4/air/asbestos/demolish.htm.
³ N.Y.C. Admin. Code §24-146.1.
⁴ 42 U.S.C. §9604(a).
⁵40 C.F.R. §300.400 et seq.
⁶42 U.S.C. §412(r)(9).
⁷42 U.S.C. §§9603(a), 11004.
⁸N.Y. Laws of 1996 ch. 107.
⁹ 6 N.Y.C.R.R. §360-7.
¹⁰N.Y. Exec. L. §29-a.
¹¹6 NYCRR §617.5(c)(33).
¹² 42 U.S.C. §5159; 44 C.F.R. §10.8(c), 10.8(d)(2)(xii). See also 42 U.S.C. §1506.11, 44 C.F.R. §§10.8(d)(3), 10.13.
¹³ 42 U.S.C. §5173.
¹⁴42 U.S.C. §9607(b)(2).
¹⁵42 U.S.C. §9607(d)(2).
¹⁶33 U.S.C. §§2702(d)(1)(A), 2703(a)(2).
¹⁷ 33 U.S.C. §1321(g).
¹⁸6 N.Y.C.R.R. §617.5(c)(1), (2).
¹⁹6 N.Y.C.R.R. §617.5(c)(19).
²⁰N.Y. City Charter §197-c.
²¹N.Y. Unconsol. L. §6308(3); Waybro Corp. v. Board of Estimate, 67 N.Y.2d 349, 502 N.Y.S.2d 707 (1986).
²² See Gerrard, Ruzow & Weinberg, Environmental Impact Review in New York (1990, 2001 supp.) §2.01[5][d].
²³See 42 U.S.C. §5159, 44 CFR §10.8(c).