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Environmental & Mass Tort | Case Summary
Environmental Protection Agency

On February 3, 2006, Judge Deborah A. Batts, United States District Court for the Southern District of New York, ruled that a class action lawsuit brought on behalf of residents, students, and workers in Lower Manhattan and Brooklyn can proceed with respect to the Plaintiffs' allegations that Christine Todd Whitman, former head of the E.P.A., violated the proposed class’ Fifth Amendment Constitutional right to be free from bodily harm when she made materially misleading statements regarding the safety of the air quality in Lower Manhattan after September 11, 2001. Judge Batts, while dismissing the Plaintiffs mandamus and CERCLA claims against the E.P.A., rejected the E.P.A.’s arguments in allowing the Plaintiffs' Administrative Procedure Act claims to go forward based on the E.P.A.’s misleading statements about air quality and its failure to adhere to applicable standards with respect to the clean up of Lower Manhattan and Brooklyn after the collapse of the World Trade Center.

The law firm of Berger & Montague, P.C. filed this class action complaint in the District Court for the Southern District of New York against the United States Environmental Protection Agency ("EPA"), Christine Todd Whitman, former administrator of EPA, Marianne L. Horinko, former assistant administrator and then administrator of EPA, and Michael Leavitt, administrator of EPA since November 2003. The suit is filed on behalf of residents, students, and office workers in Lower Manhattan and Brooklyn who have been exposed to hazardous substances in the interior of their residences, schools, and work places as a result of the collapse of the World Trade Centers on September 11, 2001. Plaintiffs assert claims against defendants for violations of their substantive rights to be free from bodily injury guaranteed them under the U.S. Constitution, and for violation of the Administrative Procedure Act.

The Complaint alleges that defendants violated the law when they inter alia: made materially misleading statements regarding the safety of air quality in Lower Manhattan shortly after September 11, 2001, failed to follow federal laws mandating that EPA take lead responsibility for the cleanup of buildings and residences in response to terroristic attacks, delegated all responsibility for the cleanup to the City of New York which was ill-equipped to handle the situation, failed to properly supervise and oversee the cleanup efforts by the City of New York, referred the public to cleanup guidelines issued by the City of New York which were contrary to EPA standards and grossly inadequate to properly cleanup the hazardous substances, failed to properly assess the complete geographic scope of the hazard, and failed to remediate the problems through their voluntary cleanup program.

As a result of defendants’ actions, plaintiffs and class members have been exposed to hazardous substances for over two years, and have suffered and will continue to suffer physical bodily injury. Accordingly, plaintiffs request that defendants perform representative testing of all residences, schools, and office buildings in Lower Manhattan and Brooklyn, implement a complete professional cleanup of such buildings where needed, and fund a medical monitoring program which includes testing and preventive screening for conditions resulting from exposure to World Trade Center dust.

The law firm of Berger & Montague, P.C. has over 60 attorneys, all of whom represent plaintiffs in complex litigation. The Berger firm has extensive experience representing plaintiffs in class action litigation and has played lead roles in major environmental and toxic exposure cases as well as securities, antitrust, and consumer cases over the past 25 years which have resulted in recoveries of several billion dollars to investors.

The Berger firm is working on this matter with Joel R. Kupferman of the New York Environmental Law & Justice Project, 351 Broadway, 4th Floor, New York, NY 10013-3902, (212) 334-5551.

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Jeanne Markey, Esquire
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