• I. INTRODUCTION
• II. EMERGENCY RESPONSE AUTHORITIES
• III. IMMEDIATE IMPACTS: AIR POLLUTION
• IV. DEMOLITION AND REMOVAL
• V. EMERGENCY PROVISIONS
• VI. REPAIR AND RECONSTRUCTION
• ENDNOTES
  

Copyright © 2002 of Matthew Bender & Co., Inc. Reprinted with permission from Environmental Law in New York, published by Matthew Bender & Co., Inc., a Member of the LexisNexis Group. All rights reserved.

I. INTRODUCTION

The horrific loss of life and the ensuing global war against terrorism are by far the most important aspects of the events of September 11. Less significant but worth discussing are the environmental impacts. 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.

This article is devoted to analyzing how environmental law bears on the physical aftermath of this catastrophe—response, recovery and reconstruction.(1)

II. EMERGENCY RESPONSE AUTHORITIES

Legislation has addressed risks in the transport and use of hazardous chemicals since the mid-1800s, when the railroads were transporting explosives and flammable materials such as nitroglycerin and glynoin oil. The Explosives and Combustibles Act of 1908 gave the Interstate Commerce Commission jurisdiction over these issues.(2) This statute gradually evolved over the years, but this evolution was punctuated by reactions to terrible accidents. The 1967 Torrey Canyon oil tanker spill and the 1968 Santa Barbara Channel oil spill helped lead to the Federal Water Pollution Control Act of 1972, which required the newly-created Environmental Protection Agency (EPA) to promulgate a National Oil and Hazardous Materials Contingency Plan (NCP). The 1973 crash at Logan International Airport in Boston of a 707 cargo jet loaded with hazardous materials highlighted the fragmentation of regulatory authorities and led to enactment of the Hazardous Materials Transportation Act of 1975. Worker exposure to the chemical Kepone at a factory in Virginia in 1975, with ensuing health damage, helped lead to two 1976 enactments, the Toxic Substances Control Act and the Resource Conservation and Recovery Act. The Love Canal incident in Niagara Falls in 1978 inspired the Comprehensive Environmental Response Compensation and Liability Act (CERCLA, or Superfund), which expanded the mission of the NCP to include the cleanup of hazardous substance sites.

Most terribly, the release of methyl isocyanate at a Union Carbide plant in Bhopal, India in 1984, leading to the deaths of several thousand people, shortly followed by a frightening but nonlethal release in Institute, West Virginia, led to the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), requiring state and local emergency planning and the compilation and public disclosure of extensive information about chemical use.(3) The Exxon Valdez spill in Alaska in 1989 led to the Oil Pollution Act of 1990. Also enacted in 1990 were the Clean Air Act Amendments, which included section 112(r),(4) requiring chemical plants to develop risk management plans and to specify worst case scenarios.(5)

In 1991 a study identified the ``thirteen riskiest facilities in New York City,'' based on the quantity and nature of the chemicals they stored. The only one on this list in Manhattan was a location where the New York City Department of Environmental Protection stored large quantities of chlorine gas to disinfect the water supply.(6)

Thus by the time the airplanes hit the WTC, there was in place an elaborate system of emergency preparedness to respond to the release of hazardous chemicals.(7) To be sure, the ghastly scenario was apparently not envisioned by any responsible authorities,(8) and the loss of life caused by the aircraft crashes, fires and building collapses overshadowed all else. The New York City fire and police departments and others responded courageously with, as all know now, tragic results. But the federal, state and city environmental and health departments 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.

III. IMMEDIATE IMPACTS: AIR POLLUTION

The orderly, planned demolition of a building is preceded by an engineering survey; surveys for asbestos and lead; the cutoff of electric, gas, water and sewer service; and many other precautions.(9) A systematic survey and abatement program for asbestos is mandated by EPA under the Clean Air Act's National Emission Standards for Hazardous Air Pollutants program.(10) The New York City Asbestos Control Law also requires a pre-demolition asbestos survey.(11) Otherwise, demolition can lead to the uncontrolled release of asbestos particles into the air.

The WTC towers were built from 1968 to 1972. A slurry mixture of asbestos and cement was sprayed into steel supporting trusses and beams as fireproofing material. But this practice was banned by the New York City Council in 1971 after complaints from unions and industrial hygienists. This halted the spraying, but not before hundreds of tons of the material had been applied.(12) 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 September 11. The combustion of all manner of building materials (including plastics, fabrics, electronic equipment, and cleaning supplies) by large quantities of hot-burning jet fuel might be expected to generate some rather exotic chemicals.

After the towers collapsed, smoke rose to a height of about 1,000 feet and moved south over parts of Brooklyn and Staten Island and out to sea. Many survivors in the immediate vicinity and rescue workers were subjected to serious smoke inhalation. The next day the wind was blowing northward toward midtown Manhattan and beyond, but by then the fires had ebbed and there was less smoke.

In the days after September 11, EPA and the Occupational Safety and Health Administration took numerous air samples in Manhattan, Brooklyn and New Jersey and reported that they found no excessive levels of asbestos, lead or volatile organic compounds in the air except at or near ground zero. Medical experts quoted by the press said that the dust and other contamination in the air 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, and there was a risk that they would track asbestos into their homes. Though the ambient air outside of the WTC site seemed safe, many of the dust samples taken from surfaces in the surrounding blocks had high levels of asbestos, and EPA provided ten HEPA (high efficiency particulate arresting) filter vacuum trucks to clean streets and surfaces. People whose homes and businesses had a coating of dust inside were advised by the City to wash them off with wet rags and mops to keep from stirring up the dust, to use HEPA vacuums if available, and to clean their air conditioning filters.(13) Specialized cleaning crews are removing dust and gritty soot from hundreds of buildings in the area. The odors that emanated from the site were very unpleasant (both in themselves, and for what they represented) but apparently would not cause disease. EPA also found no sign of contamination in the City's drinking water.

On September 23, a nonprofit group called the New York Environmental Law and Justice Project (NYELJP) issued a statement disputing the official assurances that air pollution from the site posed no public health threat. Laboratory tests commissioned by NYELJP found high levels of fiberglass as well as asbestos in the dust. NYELJP also suggested that formaldehyde, dioxins, furans, and other chemicals may have been released. NYELJP claimed that site workers, and people returning to their homes and businesses in the area, were not being given sufficient warnings about precautions they should take. Subsequent reports by other non-official sources also claimed that risks exceeded those being announced by governmental agencies, though a testing laboratory retained by The New York Times obtained results consistent with EPA's.(14) The unpleasant odors that permeated Lower Manhattan for weeks after the attack (and that occasionally led to early closings in buildings where the odors were particularly bad) led to widespread public skepticism about the official assurances that the air was safe.

A joint EPA and OSHA press release of October 3 stated, ``Although EPA has measured dioxin levels in and around the World Trade Center site that were at or above EPA's level for taking action, the risk from dioxin is based on long-term exposure. EPA and OSHA expect levels to diminish as soon as the remaining fires on the site are extinguished.'' In the ensuing months the controversy continued over whether air pollution emanating from the site and its still-smoldering fires were having adverse health effects, and whether the public was being fully informed.

EPA was authorized under CERCLA(15) and the NCP(16) to take emergency action, using Superfund money, to take tests and otherwise respond, given the concern that the smoke and dust might contain hazardous substances. The Federal Emergency Management Agency (FEMA), the Centers for Disease Control, the State and City environmental and health departments, and other agencies helped out with the response. The Clean Air Act also authorizes EPA to take emergency action to abate actual or threatened releases of hazardous substances, and also to seek action by the courts,(17) though of course the events of September 11 were beyond the power of any court.

CERCLA and EPCRA provide that whenever there is a release of a ``reportable quantity'' of certain substances into the environment, a report must be promptly telephoned to the National Response Center, a environmental 911-type operation run by the U.S. Coast Guard, and also made to other authorities.(18) The WTC disaster must have released chemicals several orders of magnitude above the reporting thresholds, but this reporting rule is superfluous when the event is broadcast live by every television station in the country.

IV. DEMOLITION AND REMOVAL

Disposal of debris is a standard part of recovery after disasters such as hurricanes,(19) tornadoes(20) and earthquakes,(21) but the WTC collapse is unprecedented in both volume and, perhaps, in the variety and uncertainty of materials involved, at least in any one location. About 1.2 million tons of material were estimated to be involved. 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 for forensic evidence such as the airplanes' black boxes. As the operation moved into a search-and-recover mode, difficult questions were faced as to how to deal sensitively with the fact that the remains of several thousand people are entombed at the site. Bitter protests and sporadic clashes with the police erupted at the WTC site in early November as some New York City firefighters complained that their numbers were being reduced at the site, and that the demolition workers who remained were acting thoughtlessly when they came across human remains.

Eventually all the debris will presumably be removed from the WTC site. The Fresh Kills Landfill was scheduled to close by December 31, 2001, by operation of a state law enacted in 1996(22) and accompanying consent decrees, and in fact it had stopped accepting waste in March 2001. The closure was brought on by the Landfill's negative environmental effects, especially on Staten Island, and not by a lack of physical capacity; indeed, prior to the 1996 law the New York City Department of Sanitation was counting on several decades more service. Portions of Fresh Kills were even allowed to accept asbestos waste. Most or all of the WTC debris (except for the girders and other ferrous metal, and a little aluminum and copper, which are being recycled) will go to Fresh Kills for permanent disposal, and the closure date will have to be extended (though some of the material could be regarded as alternative grading material or cover material, and thus could be brought in even after the closure deadline). Governor Tom Ridge, shortly before leaving to head the new Office of Homeland Security, also agreed to allow landfills in Pennsylvania to accept overflow waste from the City's transfer stations whose movement was impeded by Sept. 11. The siting of any new construction and demolition (C&D) debris landfills in New York would require approval from the New York State Department of Environmental Conservation(23) in what is typically a lengthy process.

To put the quantities in perspective, 1.2 tons of debris is more than the amount of C&D debris that all municipal solid waste (MSW) landfills in New York State accept in a year. There are also 23 active landfills in the state dedicated to C&D debris, but (except for three in Suffolk County) none are anywhere near New York City.(24)

A bewildering array of materials are buried in the rubble. The WTC reportedly had 200,000 tons of steel, 955,000 tons of concrete and 43,600 windows. It had untold thousands of computers (each monitor has an average of about five pounds of lead), 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 with freon; old electrical equipment, apparently with PCBs; and the remains of two hijacked jets.

In order to obtain a better idea of what toxic materials might have been in the WTC, the author of this article asked Toxics Targeting, an environmental research firm in Ithaca, New York, to conduct a database search. It revealed that the WTC complex had several underground and aboveground storage tanks for various petroleum products; experienced many 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 of hazardous, asbestos or petroleum wastes. Even if this material could be identified and separated out from the rubble, 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 in this fashion would be extremely laborious, would slow down the disposal operation, and would expose the workers to further hazards. Thus special dispensation from the standard legal requirements for testing and separating waste found in the Resource Conservation and Recovery Act and related laws 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. EPA announced that early samples from water runoff from the site into the Hudson and East Rivers showed some elevated levels of PCBs, dioxin, asbestos and metals, but samples taken a few weeks after the attack showed readings below levels of concern.

V. 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 environmental review laws that require the preparation of environmental impact statements (EISs) for discretionary governmental decisions. Several mechanisms, however, allow many of the environmental laws to be trumped in times of emergency.

A state statute provides that ``[s]ubject to the state constitution, the federal constitution and federal statutes and regulations .... the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.''(25) Governor Pataki used this law on September 12 to suspend many statutes of limitations, and on October 9 he used it to suspend certain regulations regarding transportation and handling of solid wastes, so as to facilitate the WTC removal operation.(26)

The State Environmental Quality Review Act (SEQRA) exempts from the EIS requirement ``emergency actions that are immediately necessary on a limited and temporary basis for the protection or preservation of life, health, property or natural resources, provided that such actions are directly related to the emergency and are performed to cause the least change or disturbance, practicable under the circumstances, to the environment.''(27) The courts have interpreted this provision broadly to encompass events that at first glance do not look much like emergencies (such as prison overcrowding and homelessness),(28) but obviously the response to the WTC disaster fits squarely within this definition.(29) Emergency provisions were invoked to allow solid waste transfer stations to handle the large quantities of garbage that backed up when much transportation in the City ground to a halt, and to expedite dredging (long delayed by fear of contaminated sediments) to create new ports in Manhattan and Brooklyn to accommodate the barges that are taking away some of the debris.

At the federal level, certain exemptions were triggered by the FEMA's declaration of New York City as a disaster area on September 11.(30) Under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, the federal emergency response is largely exempt from the National Environmental Policy Act (NEPA), SEQRA's federal counterpart.(31) The federal government is also authorized to remove debris from disaster sites.(32) 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,(33) and it also exempts state and local governments from CERCLA liability when responding to emergencies.(34) The Oil Pollution Act(35) and the Clean Water Act(36) also have act of war defenses.

VI. REPAIR AND 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. There is particular concern over the cement bathtub that keeps the Hudson River from flooding the site and the subway and PATH tunnels. Many major repair programs will be required.

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, including upgrading buildings to meet building or fire codes.''(37) Building permits are ordinarily exempt from SEQRA.(38)

Reconstruction of the area is an entirely different matter. The buildings that were completely destroyed had 13.4 million square feet of space; when other buildings that are so damaged that they will have to be demolished are added, the total amount of lost space is probably between 15 and 20 million square feet. That is the same range as the central business districts of Atlanta, Baltimore, Pittsburgh, and Portland, Oregon. The WTC site is owned by a bi-state agency, 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 is underway 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); the Silverstein group, and the federal goverment. Within City government the situation was further complicated by the mayoral election. There is extensive discussion of exempting the reconstruction from at least some of the environmental and land use laws.

New York City's major land use approval processes are consolidated under the Uniform Land Use Review Procedure (ULURP),(39) which requires consideration, under a designated timetable, by the community boards, the borough president, the City Planning Commission, and the City Council. 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 Corporation (ESDC, formerly known as the Urban Development Corporation).(40) As a matter of policy these entities have not exercised their ULURP override authority without the agreement of the mayor.

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, and with land use approvals granted by the Adirondack Park Agency). Other than that, the Legislature has granted limited exemptions from SEQRA only for certain projects of the Metropolitan Transportation Authority and the New York Power Authority, for a few narrowly specified actions of the New York Thruway Authority and the State Department of Transportation, and for designation of the Hudson River Waterfront Area.(41)

On November 2, Governor Pataki and Mayor Giuliani jointly announced that a new ESDC subsidiary, the Lower Manhattan Redevelopment Corporation, would be established to oversee all aspects of revitalizing Lower Manhattan south of Houston Street. The corporation would have powers similar to the one that helped rebuild Times Square, and would have a nine-member Board of Directors, six appointed by the Governor and three appointed by the Mayor. It would be subject to SEQRA but not ULURP. However, four days later the voters elected a new mayor, Michael Bloomberg, who during his campaign had opposed the creation of a new entity to oversee WTC reconstruction, preferring instead to utilize existing entities. Moreover, several other factors added to the uncertainty over the institutional arrangements:

1. The Port Authority of New York and New Jersey owns the site and built the WTC there under a 1962 statute that is still on the books.(42) The states of New York and New Jersey both have veto power over actions of the Port Authority.

2. In July 2001 the Port Authority signed a 99-lease for the WTC site with a group of investors led by Lawrence Silverstein. This group is obligated by the lease to rebuild the WTC in case it is damaged or destroyed.

3. The federal government is expected to provide major financial assistance for the reconstruction, and the involved federal agencies are subject 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.(43) (Congress could, of course, grant a full NEPA exemption if it so chose.)

4. The leadership of the State Assembly (which, unlike the Governor's Office and the Giuliani and Bloomberg Mayor's Offices, is controlled by the Democrats), has put forth its own plans for a reconstruction commission.

On November 29 the members of the new Lower Manhattan Redevelopment Corporation were announced. It was somewhat larger than originally planned — seven members appointed by Governor Pataki and four by Mayor Giuliani. Mayor-elect Bloomberg attended the press conference. The chairman is John Whitehead, a former co-chairman of Goldman, Sachs & Co.

Institutional issues aside, difficult issues will be faced in deciding what to do with the WTC site. Some have advocated rebuilding the twin towers much as they were before, as an act of defiance to terrorism, as a dramatic gesture of healing, and as a reaffirmation of the role the towers had come to play as the visual anchors of lower Manhattan. At the other end of the spectrum, some have called for leaving the entire area as a memorial park for the thousands who perished. Many schemes between these two extremes have been discussed. The decisions will be deeply freighted with both emotional and economic issues.

One especially troublesome question is the extent to which any new buildings erected on the site—especially tall ones—will have difficulty attracting tenants and employees, in view of the horrors that occurred there on September 11 and the fear that there might be a repeat. A somewhat analogous situation arose in a decision issued on September 21 by an upstate trial court. A town planning board had approved the construction of an earth-covered bomb barrier separating a medical building that was to be used as an abortion clinic and a nearby day care center. An anti-abortion group prevailed in a SEQRA action against the planning board action; the court found that if bombing was a possible adverse impact of the property being used as an abortion clinic, there must be an environmental review of this potential impact.(44) It would be an exceedingly difficult task to write a section of an EIS for the WTC site discussing the possible effects of another terrorist attack.

Zoning requirements will also have to be examined if the decision is made to subject the reconstruction to them. The western portion of the WTC site is in the C6-4 district (where a maximum floor area ratio of 10.0 is allowed); the eastern portion is in the C5-3 district (with a maximum FAR of 15.0, the highest of any district).(45) This might not be enough to build 110-story buildings, though available plaza bonuses could add significant height,(46) as could arcades.(47) Still additional bonuses are available since the site is within the Special Lower Manhattan District.(48) An additional constraint is a zoning provision, added in 1998, that in this district, any portion of a new building above 300 feet cannot have a horizontal dimension, measured in any direction, exceeding 175 feet.(49) Each of the twin towers was 209 feet on a side, with a diagonal dimension of 295 feet.

Finally, the environmental review of many other not-yet-built projects in the City assumed a reality that no longer exists. The transportation, economic, energy, security and even cultural situations all shifted dramatically on September 11, and many descriptions of the present and future written before that horrible day are suddenly obsolete.

Michael B. Gerrard is a partner in the New York office of Arnold & Porter and the editor of Environmental Law in New York. His books include Environmental Impact Review in New York (with Ruzow & Weinberg, two volumes), Environmental Law Practice Guide (eight volumes), and Brownfields Law and Practice: The Cleanup and Redevelopment of Contaminated Land (three volumes), all published by Matthew Bender & Co. An earlier, abridged version of this article previously appeared in the New York Law Journal.

ENDNOTES:

1. A similar topic was addressed in the aftermath of the 1993 bombing. See Jeffrey S. Green and Ira Tripathi, Coping With Chaos: The World Trade Center Bombing and Recovery Effort, 27 Urb. Law. 41 (1995).

2. U.S. Environmental Protection Agency, Office of Solid Waste and Emergency Response, A Review of Federal Authorities For Hazardous Materials Accident Safety: Report to Congress Section 112(r)(10) Clean Air Act As Amended, EPA 550-R-93-002 (Dec. 1993), ch. 2.

3. 42 U.S.C. Section 11001 et seq. The same year New York State adopted the Hazardous Substances Bulk Storage Act, aimed at similar kinds of incidents. N.Y. Envtl. Conserv. Law art. 40. New York City has its own local Right-to-Know Law. 15 R.C.N.Y. ch. 41.

4. 42 U.S.C. Section 7412(r). See Marc Karell & Amy Siebert, The New Federal Accidental Release Prevention Program, 8; Envtl. L. in N.Y., No. 4, p. 49 (Apr. 1997).

5. See U.S. General Accounting Office, Chemical Accident Safety: EPA's Responsibilities for Preparedness, Response, and Prevention, GAO/PEMD-96-3 (June 1996).

6. Barbara Warren and Eileen Nic, Toxic Chemical Accident Risks in New York City, Consumer Policy Institute/Consumers Union (1991). See also Robert Abrams, Toxic Chemical Accidents in New York State: The Risk of Another Bhopal, New York State Attorney General's Office (Jan. 1986); Peter N. Skinner, et al., It Can't Happen Here! Recent Significant Toxic Chemical Incidents: A Compendium and Discussion, New York State Attorney General's Office (Sept. 1991); Bernard A. Weintraub, The Potential for Toxic Substances Accidents and New York's Compliance With EPCRA, 3 Envtl. L. in N.Y., Nos. 10 and 11, pp. 145 and 161 (Oct. 1992 and Nov. 1992).

7. See R. Zimerman and M. Gerrard, Hazardous Substance Emergencies in New York City, 6 Disaster Management 133 (1994).

8. One recent paper did note, with an eerily prescient title, the increasing role of counter-terrorism efforts in federal emergency management efforts. Claire B. Rubin, Emergency Management in the 21st Century: Coping With Bill Gates, Osama bin-Laden and Hurricane Mitch, Natural Hazards Research and Applications Information Center, Institute of Behavioral Science, University of Colorado (2000), www.colorado.edu/hazards/wp/wp104/wp104.html.

9. See ``Demolition,'' U.S. Army Corps of Engineers Safety and Health Requirements Manual, EM 385-1-1, Section 23 (Sept. 3, 1996), www.cdc.gov/niosh/elcosh/docs/d0100/d000100/sec23.html.

10. 40 C.F.R. Section 61.145. See also EPA, Region 4, Demolition Practices Under the Asbestos NESHAP (2001), www.epa.gov/region4/air/asbestos/demolish.htm.

11. N.Y.C. Admin. Code Section 24-146.1.

12. Dan Fagin, An Invisible Enemy: Dust—Asbestos, other carcinogens put rescuers at highest risk, Newsday, Sept. 13, 2001. A 1972 article estimated that 5000 tons of asbestos-containing insulation materials were being applied to the WTC. William B. Reitze et al., Application of Sprayed Inorganic Fiber Containing Asbestos: Occupational Health Hazards, American Industrial Hygiene Ass'n J., March 1972, 178, 179.

13. New York City Department of Health, Health Department Offers Recommendations for Individuals Re-Occupying Commercial Buildings and Residents Re-entering Their Homes (Sept. 17, 2001), www.ci.nyc.ny.us/html/doh/html/public/press01/pr80-917.html.

14. Kirk Johnson & Andrew C. Revkin, The Air Quality: Contaminants Below Levels For Long-Term Concerns, N.Y. Times, Oct. 11, 2001 at B13.

15. 42 U.S.C. Section 9604(a).

16. 40 C.F.R. Section 300.400 et seq.

17. 42 U.S.C. Section 7412(r)(9).

18. 42 U.S.C. SectionSection 9603(a), 11004.

19. See North Carolina Department of Environment and Natural Resources, Waste Management Efforts Associated with Hurricane Floyd (Sept. 24, 1999), www.enr.state.nc.us/newsrels/wasfloyd.htm.

20. See Paul Hoversten, Disposal of debris a Herculean task, USA Today, July 6, 1999, www.usatoday.com/weather/tornado/storms/1999/w507tor.htm</url> (residue from tornadoes near Oklahoma City).

21. See California State University, Northridge, press release, University Tower Apartments Demolition Ready to Start (Feb. 9, 1998), ww.csun.edu/~hfoao102/@csun.edu/csun97_98/csun0209_98/page1/tower.html.

22. 1996 N.Y. Laws ch. 107.

23. 6 N.Y.C.R.R. Section 360-7.

24. New York State Assembly, Legislative Commission on Solid Waste Management, Where Will the Garbage Go? 2000 (Dec. 2000), pp. 7, 18, 34.

25. N.Y. Exec. L. Section 29-a.

26. N.Y. Executive Order No. 11329, ``Suspension of Regulations Regarding Transportation and Handling of Certain Solid Waste Resulting >From the World Trade Center Disaster'' (Oct. 9, 2001).

27. 6 N.Y.C.R.R. Section 617.5(c)(33).

28. See Michael B. Gerrard, Daniel A. Ruzow & Philip Weinberg, Environmental Impact Review in New York (Matthew Bender) Section 2.01[4][d].

29. If it did not, some of the activities at the WTC site arguably would require an EIS. See Williamsburg Around the Bridge Block Ass'n v. Giuliani, 223 A.D.2d 64, 644 N.Y.S.2d 252 (1st Dept. 1996) (EIS required for City protocol for sandblasting of lead paint from bridges, as it could cause hazardous dust to be blown into nearby community).

30. The declaration appears at www.fema.gov/library/dfrn/2001/d1391_n1.htm.

31. 42 U.S.C. Section 5159; 44 C.F.R. SectionSection 10.8(c), 10.8(d)(2)(xii). See also 42 U.S.C. Section 1506.11; 44 C.F.R. SectionSection 10.8(d)(3), 10.13.

32. 42 U.S.C. Section 5173.

33. 42 U.S.C. Section 9607(b)(2).

34. 42 U.S.C. Section 9607(d)(2).

35. 33 U.S.C. SectionSection 2702(d)(1)(A), 2703(a)(2).

36. 33 U.S.C. Section 1321(g).

37. 6 N.Y.C.R.R. Section 617.5(c)(1), (2).

38. 6 N.Y.C.R.R. Section 617.5(c)(19).

39. N.Y. City Charter Section 197-c.

40. N.Y. Unconsol. L. Section 6308(3); Waybro Corp. v. Board of Estimate, 67 N.Y.2d 349, 502 N.Y.S.2d 707 (1986).

41. See Environmental Impact Review in New York, supra, Section 2.01[5][d].

42. N.Y. Unconsolidated L. Section 6601 et seq.

43. See 42 U.S.C. Section 5159; 44 C.F.R. Section 10.8(c). See also Federal Emergency Management Agency, ``Federal Public Notice FEMA-1391 DR-NY, World Trade Center Disaster, Notice of Intent for the Preparation of a Programmatic Environmental Assessment for Response, Recovery, and Hazard Mitigation Actions and Activities Occurring Within the 100-Year Floodplain'' (Nov. 6, 2001), www.fema.gov/mit/ep/assess.htm.

44. Brighton Residents Against Violence to Children, Inc. v. MW Properties, LLC, No. 99/7949 (Sup. Ct. Monroe Co. Sept. 21, 2001).

45. N.Y.C. Zoning Resolution Section 33-122.

46. N.Y.C. Zoning Resolution Section 33-14.

47. N.Y.C. Zoning Resolution Section 33-15.

48. N.Y.C. Zoning Resolution Section 91-23.

49. N.Y.C. Zoning Resolution Section 91-34.

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