After the Dust Settles: Liability vs. Immunity in the 9/11 Clean Up

Saturday, November 4, 2006 | 0

By Jon Coppelman

Five years after the fall of the World Trade Center towers, there are lingering issues concerning the health of the rescuers. Over 40,000 workers rushed to the site in the immediate aftermath, and then sifted debris in the following weeks. It now appears that many of these workers have suffered lung damage, much of it permanent, some of it fatal. So who is responsible? Who pays?

Not me, says the city. Not me, says the Port authority of New York. Not me, says the federal government. OSHA was just advising, they weren't in charge. The city was following the feds. No, the feds were following Rudy Giuliani, braving the flying dust at ground zero for yet another photo op (and not wearing an unphotogenic respirator).

Writing in Risk & Insurance, our colleague Peter Rousmaniere tries to separate the immediate response crisis from the safety issues emerging after it was known that there were no more survivors. Once the last living person was extricated from the wreckage, there was time to think coolly and balance the sense of urgent recovery with the safety of the workforce. But as Rousmaniere notes, instructions in the "safety playbook" were ignored:

* A single point of authority was needed. But the feds and locals bickered in a power struggle that led to many of the subsequent problems.
* Once it was clear that there were no survivors, they could have closed the site to let the dust settle for a while.
* Given the obvious toxic respiratory exposures, project leaders could have screened out workers who smoked or who suffered from pre-existing respiratory problems.
* The use of personal protective equipment could have been mandated (including the ubiquitous Giuliani!)

Who Should Pay?

Federal Judge Alvin Hellerstein refused recently to dismiss more than 3,000 lawsuits against New York City, the Port Authority of New York and New Jersey, and contractors who cleared Ground Zero. The suits were brought by emergency workers who claimed respiratory damage and other illnesses from the cleanup. At the same time, the Judge left open, on a case by case basis, whether individuals harmed during the clean up can collect any benefits. (The complete ruling can be found here.

According to Mark Hamblett, writing in the New York Law Journal, the judge ruled that it was too early in the litigation to determine whether the defendants are entitled to immunity under the New York State Defense Emergency Act (SDEA) or other immunity doctrines, including one claim that the federal government supervised key elements of health and safety conditions at the site and the Fresh Kills landfill.

The SDEA, Section 9102-a, provides immunity for actions taken "in good faith carrying out, complying with or attempting to comply with" any law or order issued in response to an emergency and relating to "civil defense." Judge Hellerstein said two competing interests had to be weighed on the issue of immunity --"namely the need to allow for an immediate and effective response to an attack on the state as against the need to ensure persons a right of redress."

The immunity provision of the defense emergency act, he said, "operates to ensure that fear of liability will not operate to dissuade government and private entities from responding to a disaster, even in the absence of otherwise mandated safety protocols and procedures."

But as the "emergency condition fades," he said, "the need for immunity diminishes and the obligations and duties otherwise imposed must be protected." In other words, once we knew that there were no survivors, the health and well-being of the rescuers should have become paramount.

Who's in charge?

The defendants said the Army Corps of Engineers had assumed control over the design and enforcement of health and safety monitoring at the Fresh Kills landfill on Staten Island, where debris from the site was taken and sorted. The Occupational Safety and Health Administration (OSHA) took the lead role in distributing respirators at Ground Zero and the Environmental Protection Agency took the lead on environmental monitoring and hazardous waste removal. So the Feds were in control?

But at Fresh Kills, the judge said, the city "continued to exercise an independent degree of control over operations." OSHA, he said, worked in an "advisory capacity, providing assistance only as needed and requested by the city. So the city was in control?

Judge Hellerstein notes that while the defendants developed "a viable health and safety plan for workers at the site," the pleadings show there were "critical lapses in the enforcement of safety standards and in the dissemination of vital information about the safety of the air at Ground Zero to those most affected, the workers themselves." As Rousmaniere notes, the safety play book was carefully drafted and then stuck in a bookcase, collecting (non-toxic) dust.

Responding to Emergencies

It may be impossible to distinguish between prudent and emotion-driven response to a crisis on the scale of 9/11. In the mad scramble to re-establish order, the public wants to believe that the situation is under control. Indeed, our personality-driven culture seems to demand that we put a face on the post-crisis leadership. (Then again, the face is occasionally air-brushed from history. Did someone say "Brownie"?)

In any event, I find it hard to focus on the nominal leaders who jockey for position in the klieg lights following a disaster. It's just too hard to separate the self-promotion from the public good. My thoughts are with the dedicated and truly selfless people who offer their services in a time of emergency. They are not thinking about the future. They are not worried about political capital. They are simply trying to help. It is ironic and surely a symptom of our times that in the aftermath of 9/11 we have given notice to any such responders: think twice about rushing into the inferno. You may well be on your own for any health problems emerging from your work. The very people who urged you to participate are running away from your pain as fast as they can. The rhetoric has gone from "I'm in charge" to "you can't blame me." They have plenty of justification for their hold harmless/immunity arguments, but surely that does not mean that no harm has been done.

This column was posted on Lynch Ryan's Web log (blog) at www.workerscompinsider.com.

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