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.