WASHINGTON, DC, March 18, 2015 (ENS) – A chemist with the U.S. EPA who protested for years that the agency’s toxic dust standard is scientifically inaccurate and jeopardized the lives of 9/11 first responders, has won a lawsuit that will force the agency to consider tightening its limits on corrosive dust.
Although the EPA tried to fire her in 2013, chemist Dr. Cate Jenkins maintains that the alkaline corrosive dust released during building demolition and cement manufacturing poses a danger to the lungs and nasal passages of not only first responders but other workers and the public.
Less than a month after the U.S. EPA proposed to remove her and then reinstated her, EPA re-filed the same charges from 2010 which had been thrown out of court for violations of Dr. Jenkins’ constitutional due process rights. Bringing the charges again violated the order that reinstated her.
The lawsuit to force the EPA to decide on their petition for a review of the dust standard was brought by Dr. Jenkins and the Public Employees for Environmental Responsibility, PEER, a national association representing government workers in natural resource agencies.
In a filing adopted late Friday by the U.S. Court of Appeals for the DC Circuit, the EPA is required to act on the petition by March 31, 2016 with “an advanced notice of proposed rulemaking, a proposed rule, or a tentative determination to deny the petition.”
The EPA is now legally committed to decide whether to tighten its corrosive dust limits so as to prevent the tragedy that befell the World Trade Center First Responders who waded into dust so caustic it permanently damaged their lungs, says PEER attorney Paula Dinerstein.
“EPA can no longer hide from this serious public health concern; it finally has to act,” said Dinerstein.
“Getting agencies like EPA to admit they have been wrong, especially when many people have died as a result, is no small undertaking,” she said.
Alkaline corrosive dust released during demolitions and cement manufacturing can cause chemical burns, especially to tissues of the nasal passages and lungs. But under present EPA standards these levels are exempt from hazardous waste regulations.
So EPA has never before issued any warning to the public about the alkaline, corrosive properties of dust from implosion demolitions of large buildings, including at the World Trade Center following the 9/11 attacks.
Ten years after the 9/11 attacks, PEER and Jenkins filed a formal rulemaking petition urging EPA to correct its incorrect corrosivity standard.
After three more years of agency inaction, PEER sought a writ of mandamus before the U.S. Court of Appeals for the DC Circuit. On October 8, 2014, the court ordered EPA to respond to the petition.
Until EPA makes its decision, the appeals court has directed the agency “to file status reports at 120-day intervals beginning July 13, 2015.”
Dinerstein says that “if EPA ultimately fails to correct its corrosive dust safety limits, it will be vulnerable to another suit that this decision lacks a rational basis.”
Meanwhile, EPA has published contract assignments to provide the technical basis for new dust standards.
The current 35-year old EPA regulation is 10 times more lax than the presumed safe levels for alkaline corrosives set by the United Nations, the European Union and Canada.
Dinerstein said, “We should be grateful that Dr. Jenkins had the courage and perseverance to endure much official backlash in order to bring these public health protections in line with the rest of the world and with sound science.”