A few days after he got back, he received a troubling telephone call from Tommy Barnett, a New York City police officer and Patrolman’s Benevolent Association (PBA) delegate. They had met over an earlier environmental threat. It had been late summer, and the city had been spraying for West Nile Virus mosquitoes in a way that exposed on-duty police officers to the toxic chemicals, despite assurances from Mayor Giuliani that there was no danger. Barnett had asked Kupferman for help and together they had managed to get the city to substantially change its spraying schedule and flight patterns so that on-duty cops weren’t overly exposed to the pesticides.
After the twin towers caved in on themselves, Barnett told Kupferman that some police officers had gotten sick after working just a brief time at ground zero. “I’ve got guys who are spitting up blood,” Barnett said. Some officers had pulled a number of 12-hour shifts guarding the perimeter of the debris pile without any respiratory protection. Kupferman knew that he had to get into ground zero to see for himself, but he also knew there was no way he would be allowed past security. Barnett understood and offered to meet him at the PBA offices on Fulton Street, a quick walk from the trade center, on September 19, two days after Paul Lioy had gathered his dust samples. Barnett gave Kupferman a PBA shirt and cap, along with a dust mask, and walked him to ground zero. Accompanying them was Columbia Fiero, Kupferman’s partner and the project’s photographer. Now they were face-to-face with the unreal scenes they had been watching on television. The dust was still quite thick. Kupferman took a blue plastic spoon and Ziploc bags and grabbed as much of the material as he could from a building on Church Street, one block north of the trade center. When he had scooped the dust into the bags, he looked up and saw that he was in front of the big downtown post office, the same post office where he used to mail out packages from Worth Leather.
After Kupferman left the restricted zone, his head was filled with questions. He had heard Giuliani reassuring the people of New York that the air downtown was safe, and he had seen Christie Whitman give her homey assessments of the risk on television. But what he experienced at ground zero—the gray haze in the air, the ashen dust piled up everywhere, the air tinged with the rank aroma of death—reminded him of the fancy dinner on Long Island years before when the hostess had assured everyone there was nothing to worry about.
Kupferman sent the samples of dust he’d collected to two independent labs, one in New York City and the other in Virginia. The city and the EPA had said there were no serious problems in most locations, but he wanted the dust he’d collected with his own hands to be tested and analyzed by labs whose reputation he knew and trusted. He did it for the people who lived and worked downtown, and he did it to hold officials accountable. That had been the mission of his Environmental Law & Justice Project from the beginning. But Kupferman had one more reason, a personal one. This was his neighborhood, the place that had shaped him from the time he was a child. Seeing it damaged that way made him angry. But the thought that someone might be withholding the truth made him angrier still.
The labs sent back the results quickly, and they were frightening. The first four dust samples tested by ATC Associates of New York, a lab that regularly did work for the New York City Board of Education, contained twice as much asbestos as some of the EPA samples, and as much as 15 percent fiberglass. The samples tested by ETI Laboratory in Fairfax found a range of chrysotile asbestos that went from a trace to 5 percent. Working with Monona Rossol, an industrial hygienist, Kupferman put the findings into flyers and distributed them to downtown residents and the men and women working in the debris of the trade center. In the flyers, he came to a basic conclusion: “Health officials may think they are doing people a favor by withholding information, but there is no reason to assume that New Yorkers will not be just as courageous in dealing with air quality issues as they have been in dealing with the disaster. Failing to provide this information can cause people to take needless risks.” He felt the area should have been declared a federal Superfund site. Instead, people were being encouraged to come back to live and work there.
Part of the work that a lawyer such as Kupferman does goes beyond law and public policy and enters the realm of public relations. Kupferman needed to make his findings known, to create pressure on officials. Doing so, a pint-sized legal outfit such as his can multiply its impact many times. Taking an issue to the media often is quicker and, in some ways, more effective than going to court. Lawsuits are an expensive and time-consuming last resort, but talking to a reporter costs nothing. Kupferman also had another reason for going public with his findings. The question of how toxic the 9/11 dust might be was already being played out in public, with Giuliani and Whitman’s optimistic statements abetting the burning desire of a wounded city to believe that the thick dust was not a problem, despite evidence to the contrary.
Kupferman called Juan Gonzalez, a long-time columnist for the New York Daily News who often writes about social justice issues. The two men had met during the West Nile Virus spraying when Kupferman was interviewed about his work with the police department. The two made an odd couple. Since starting as a columnist at the Daily News in 1987, Gonzalez had become one of the most noticeable people in New York media circles. Besides writing the newspaper column, his ability to concisely sum up complicated issues and dig down to the heart of tangled political struggles had made him a star of radio and television, where he dressed elegantly in pin-striped suits and flashy ties. Elegant is the least appropriate word used to describe Kupferman, with his wrinkled slacks, long gray hair, and shapeless baseball cap. Most reporters in New York knew that Kupferman tended to ramble, too. But Gonzalez had learned that Kupferman had a way of getting his hands on damning information. He had used his friends and sources to get the facts about the true impact of the West Nile spraying, and Gonzalez had woven the data into columns that made front-page news, angering City Hall. Now Kupferman was on the phone with him again, this time with information backing up what any thinking person who saw the dust would have concluded. In late September, Kupferman told Gonzalez about the independent lab tests and showed him how different those results were from the optimistic reports coming from the EPA and City Hall.
Like Kupferman, Gonzalez had found it hard to swallow the explanations offered by Giuliani and Whitman. He had done a substantial amount of reporting on exposures to hazardous chemicals when he had worked for the Philadelphia Inquirer before coming to New York. In Philadelphia, he had taken on the oil-refining companies and chemical producers, and had traced cancer rates for people living nearby. He also had learned that private companies and government offices weren’t the most reliable places to go to for information about incidents involving hazardous materials.
Gonzalez had rushed down to ground zero the first day, and as soon as he got there, the chemicals in the air had reminded him of the refineries in Philadelphia. The fact that he could smell the chemicals made him suspect that whatever was coming from the rubble could harm anyone exposed to it. But he’d hesitated writing anything that contradicted the official line about safety until he had solid information. After Kupferman showed him the independent labs’ test results, Gonzalez felt he had enough to go on. His September 28 column was headlined “Health Hazards in Air Worry Trade Center Workers.” It was the first public airing of doubts about the official explanation for what was happening at ground zero.
When construction workers at ground zero read Gonzalez’s column, they shoved copies of it in the face of David Ausmus, the Bechtel safety supervisor who spent a month on the pile, and demanded to know if what the reporter said about the air was true. Ausmus checked with his bosses, who told him to say that they couldn’t confirm that the independent testing company even existed and that Kupferman’s group was just trying to stir up trouble lay the groundwork for future lawsuits. “Despicable bastards trying to profit from a national tragedy and scare the workers in the process,” Ausmus had commented.1 He went back to the workers and assured them that everyth
ing was okay. If it wasn’t, he insisted, he would let them know right away, because he was out there, too, exposed to whatever was in the air just as they were.
Going against official sources wasn’t easy for either Kupferman or Gonzalez. The columnist considered the test results and their frightening implications and wrote several more columns warning that something was not right downtown. At that time, the other newspapers and electronic media in New York were focused on the recovery operations; they dutifully repeated the official assurances that the air was safe. Eventually, a round of journalistic sniping began among the competing newspapers. As the Daily News moved more strongly into claiming that the air was not safe, despite official assurances, The New York Times urged residents to just clean up the dust in their apartments themselves because government tests showed there was nothing for most people to worry about unless they were working directly on the pile.2
But recovery workers weren’t the only ones who were worried. Thousands of office workers had been told to return to their desks in the financial district starting September 17. Government workers had also been ordered back to the job. And thousands of residents made their way back home clinging to the EPA’s optimistic reassurances that everything was safe, only to find thick layers of dust coating everything in their apartments. They found dust on their coffee cups and breakfast dishes, dust on the carpets and in the drapes, dust on the furniture and in the air conditioner, dust under the beds and behind bookcases, and dust in the drawers holding their children’s clothes. Unlike Kupferman, most residents had not started out being overtly suspicious of official pronouncements about safety. In their own way, they were willing to support the city’s primary goal of getting back to normal to prove that New York had not been bowed.
In the immediate wake of the attack, most New Yorkers felt that questioning the government’s response or its sunny outlook was unpatriotic. This had been an attack on America, and New Yorkers would lead the counterattack by proving that the country could shake off the devastating blow and get on with life. In some ways, survivors’ guilt compelled New Yorkers to pull together to make it seem that nothing had changed. The example set by the firefighters—both those who had died charging up the staircases of the doomed towers and those who had survived and now were picking at the gargantuan ruins of the two towers—set a tone of selflessness that, for a time, permeated the city. In that atmosphere of self-denial, the act of wearing respiratory gear was perceived as unduly focusing on one’s self at a moment when selflessness and patriotism abounded. Even when all hope of finding anyone alive had faded and the operation was converted to a recovery, the pile workers did not take the time or make the effort to protect themselves.
They should have known better. And their employers all the way down the line had a responsibility to tell them point blank after the rescue phase of the operation had ended that it made no sense for them to continue exposing themselves to a menacing mixture of dust, ash, and smoke to recover the remains of friends, brothers, and colleagues who had already died. “It seems as if their attitude is that to wear them is a sign of weakness,” Bechtel’s Ausmus observed. “I talked to several people that had tears in their eyes from the biting smoke and they still would not put a respirator on, as I suggested, or move out of the area. None of our safety crew has had much success yet in getting them to wear the proper equipment. Some listen and make an effort; however, the majority seem to think we are a nuisance to be avoided.”3 Emotions ran extremely high, and it would have taken a firm voice with respected authority to change their routines. But the underlying message should have been clear: Wear the right mask or risk becoming yet another victim of the terrorists. Ironically, while the city and the White House were determined to send a message that the terrorists had not won, the officials did not make sure this important message about protective gear came across to the people who most needed to hear and believe it. Not wrestling it to the ground at this early stage guaranteed that fear and worry would prowl the streets far into the future—in effect, the terrorists’ dream realized.
Ground zero workers were getting what they perceived as mixed signals. Was the air safe or wasn’t it? If it wasn’t safe, why were the firefighters working without masks? Why, when dignitaries came to look at the devastation, were they given only paper dust masks or nothing at all? How unsafe could it have been to be there when celebrities like Martha Stewart and boxing promoter Don King were parading around without protective gear?
By the time Juan Gonzalez’s columns on ground zero were appearing regularly in the Daily News, most New Yorkers couldn’t tell who was right about their safety. The easiest path for most to follow was to simply accept the fact that the air was safe because officials had said so. Believing was easier than not believing, given the times. And that made getting the negative warning across even harder. Firefighters and construction workers kept coughing, and they knew instinctively that what the officials said bore faint resemblance to what they were feeling. Some complained to Kupferman, who saw their complaints as confirmation of his suspicions about what was wrong.
Once Kupferman sank his teeth into the ankles of the EPA, he didn’t know how to let go. Although the EPA was publishing some of the results of its tests and analyses on its web page, Kupferman filed a freedom of information request on September 21 for the results of all of the agency’s test results—the actual numbers, not some bureaucrat’s generalized observation—going back to the first samples taken on September 12. The agency responded relatively quickly, and by October 19, Kupferman was able to pick up more than 600 pages of testing results. He found that, besides asbestos, which the agency had reported on, tests had shown levels of such deadly chemicals as benzene, lead, PCBs, and dioxin, about which little had been said. He unloaded the data on Gonzalez on a Friday afternoon and urged him to get the story into the paper right away. Gonzalez skimmed the data, looking for things he knew best—levels of benzene, lead, and chromium. Even a cursory look made it clear that a lot of nasty chemicals were present in and around ground zero, but Gonzalez didn’t know how to interpret the technical readings. He took the material to the newspaper’s metro editor, Richard Pienciak, whom he figured knew more because he had covered the Three Mile Island accident and had written about chemical exposures. Pienciak shared Gonzalez’s belief that, in big crises, “the last people to tell the truth are the people in charge.”
Gonzalez wanted time to comb through the data more carefully and to reach out to experts who could help interpret it. But early the following week, Kupferman was on the phone again, agitating for the story to run right away. Gonzalez was working with the data, trying to get his mind around the subtleties so he could interpret the results correctly. Kupferman was impatient and threatened to take the 600 pages to another newspaper if Gonzalez didn’t write something soon.
Gonzalez published a sensational front-page column that spelled out the fears of many New Yorkers since 9/11. The tabloid headline was “A Toxic Nightmare at Disaster Site,” and the article pulled no punches, laying out a horrific scenario while implicating the EPA for deliberately withholding vital information from the public. The headline, and some parts of the article, clearly went beyond what was outlined in the documents, but the overall effect was to change overnight many people’s perceptions of ground zero. Mistrust replaced confidence, and anger took the place of relief.
The EPA was quick to respond to Gonzalez’s most sensational conclusions, conceding that the toxins had been detected directly above the pile—where fires still burned—but insisting that they were not present just a few yards away. The elevated findings were considered temporary spikes, perhaps caused by the shifting debris. Gonzalez said that ignoring the spikes was deceptive and sent the wrong message. Whitman’s office said that focusing on the spikes was misleading and would frighten New Yorkers unnecessarily. The agency remained steadfast in its conclusion that nothing in the dust posed a long-term threat to the health of most New Yorkers.
The
same day the “toxic nightmare” column appeared, Giuliani held a news conference challenging Gonzalez’s findings. The city’s business leaders jumped on the bandwagon, calling Gonzalez an alarmist.4 Whitman got in touch with the publisher of the Daily News to complain. A letter she wrote defending her actions and responding to Gonzalez’s accusations was later published on the op-ed page of the Daily News. The complaints had their desired effect. The newsroom at the Daily News began to feel pressure to lighten up its coverage. Pienciak, the metropolitan editor, had tried to pull together an investigative team to track down the truth of the story of the dust. But within a week of Gonzalez’s story, he was no longer metropolitan editor and the investigative team was temporarily disbanded.
None of this stopped either Gonzalez or Kupferman. The columnist continued to write about the unsafe air, even if the newspaper refused to publish some of his pieces. And Kupferman continued to press authorities to fully disclose what they knew—and didn’t know—about the environmental fallout. When he had tried to get his hands on state and city health records, the state initially refused to provide any data, saying that the information he wanted was part of an on-going criminal investigation. Kupferman appealed and eventually got what he was looking for.
By then it was mid-November and thousands of people had already been intensively exposed to dust. The official records showed that, in some of the samples the New York State Department of Environmental Conservation tested, the particles of dust in the air were so thick that they had overloaded air-monitoring machines. The DEC should have recalibrated the monitors to redo the tests, but it didn’t. The New York City Department of Health also had trouble testing the heavy concentration of thick particles in the air after the towers fell. With passage of the Clean Air Act, it had been decades since such heavy amounts of contamination had tainted the air over any American city. Testing equipment had long since been recalibrated to detect much finer particles of pollution. The heavy dust from the trade center had quickly overloaded the monitors. Instead of resetting the instruments and repeating the tests, the city’s health department had simply listed those test results as “ND,” which stands for “No Detect.” The department cited them as evidence that there was nothing to worry about. This incensed Kupferman, who felt the results had been deliberately slanted to give a falsely positive view. The samples could have been loaded with asbestos fibers and a host of other toxins, he said, but because the analyzer had clogged, there was no way to count anything. It didn’t mean the sample was safe at all. The department contended that the clogged samples represented only a small portion of all the testing that had been done and didn’t skew the results.
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