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Public Misled On Air Quality After 9/11 Attack, Judge Says

Christie Whitman, when she led the Environmental Protection Agency, made “misleading statements of safety” about the air quality near the World Trade Center in the days after the Sept. 11 attack and may have put the public in danger, a federal judge found yesterday.

The pointed criticism of Mrs. Whitman came in a ruling by the judge, Deborah A. Batts of Federal District Court in Manhattan, in a 2004 class action lawsuit on behalf of residents and schoolchildren from downtown Manhattan and Brooklyn who say they were exposed to air contamination inside buildings near the trade center.

The suit, against Mrs. Whitman, other former and current E.P.A. officials and the agency itself, charges that they failed to warn people of dangerous materials in the air and then failed to carry out an adequate cleanup. The plaintiffs are seeking monetary damages and want the judge to order a thorough cleaning.

In her ruling, Judge Batts decided not to dismiss the case against Mrs. Whitman, who is being sued both as former administrator of the E.P.A. and as an individual.

As a legal matter, the ruling established that the suit’s charges were well-documented and troubling enough to meet a legal standard to go forward. But Judge Batts also criticized Mrs. Whitman’s performance in the days after the collapse of the towers unleashed, by the E.P.A.’s estimates, one million tons of dust on lower Manhattan and beyond.

“The allegations in this case of Whitman’s reassuring and misleading statements of safety after the Sept. 11, 2001 attacks are without question conscience-shocking,” Judge Batts said.

Calls to the Whitman Strategy Group, Mrs. Whitman’s current business, and to Glenn S. Greene, the Justice Department lawyer who is representing her and the E.P.A. in the case, were not immediately returned. Mrs. Whitman, a former New Jersey governor, was administrator of the E.P.A. from 2001 to 2003.

Mrs. Whitman knew that the towers’ destruction had released huge amounts of hazardous emissions, Judge Batts found. But as early as Sept. 13, Mrs. Whitman and the agency put out press releases saying that the air near ground zero was relatively safe and that there were “no significant levels” of asbestos dust in the air. They gave a green light for residents to return to their homes near the trade center site.

“By these actions,” Judge Batts wrote, Mrs. Whitman “increased, and may have in fact created, the danger” to people living and working near the trade center. Judge Batts said that Mrs. Whitman was not entitled to immunity because she was a public official. Judge Batts allowed the suit to proceed on some counts against the E.P.A. She dismissed claims against Marianne L. Horinko, an assistant administrator of the E.P.A. at the time.

Lawyers for the plaintiffs were “very gratified that the court has recognized that the E.P.A. failed in its obligation to protect the residents of downtown Manhattan and Brooklyn,” said Justin Blitz, a lead lawyer on the case.

In a statement yesterday, Senator Hillary Rodham Clinton called the E.P.A.’s conduct “outrageous.”

“New Yorkers were depending on the federal government to provide them with accurate information about the air they were breathing,” she said. “I continue to believe that the White House owes New Yorkers an explanation.”

About 2,000 tons of asbestos and 424,000 tons of concrete were used to build the towers, and when they came crashing down they released dust laden with toxins. After an expert panel failed last year to settle on a method for organizing an E.P.A. cleanup, the agency said it would proceed anyway with limited testing and cleaning of apartments in downtown Manhattan below Canal Street.

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