Chevat, an attorney and former Chief of Staff to the Speaker of the New York State Assembly, has worked the trading floor of persuasion his whole adult life. Mills started as a junior staffer in Maloney’s office. Each had a personal stake in the events of September 11. Chevat’s mother, Edith, 77 at the time of the attacks, was a resident of Battery Park City, a housing development built on the edge of the Hudson River just to the west of the World Trade Center. A former New York City school teacher, she lived on the 19th floor of a building little more than a block from the twin towers. On the morning of 9/11, Ben Chevat was in Maloney’s Capitol Hill office when he first heard the news. He called his mother to tell her she needed to get out of that building. She had made her way to the street when the first tower turned to dust. She and other Battery Park City residents were evacuated by ferry to New Jersey. When Chevat finally was able to visit her in New York a few weeks later, he saw that debris from the towers had ripped a gash in her building.
Mills found out that a friend from his hometown of Hull, Mass., had driven to New York that night to help in whichever way he could. He’d spent days on the pile and later developed respiratory problems. And just as it was for so many other ground zero volunteers, he wasn’t covered by state workers’ compensation programs.
Schumer and Clinton helped secure an initial commitment of $20 billion from President Bush to get New York back on its feet. The money covered cleanup, reconstruction, and compensation for the families of the dead, but not, at first, health monitoring or medical care for those who survived. Schumer later left most of the health issues to Clinton, who negotiated the release of the first $10 million for monitoring after meeting with Ed Ott and other labor leaders. But New Yorkers quickly found out that what the Bush administration promised about ground zero, it didn’t always deliver. Many suspected that the reason for that recalcitrance went back to the first days after the attacks when the message seemed to be that there was no danger. Authorizing money for sick workers directly contradicted that stance. That made getting anything—money, programs, attention—a matter of putting pressure on Washington and keeping it there until promises were kept.
Sniping about the federal response began almost immediately. And because New York’s senators and Manhattan’s representatives were Democrats and the House, Senate, and White House were controlled by Republicans during most of the Bush years, the sniping inevitably turned partisan. Nadler could see the way things in his own district were being handled, and he did not like what he saw. After Joel Kupferman’s early investigation of the contaminants in the dust, Nadler took on the issue with evangelical passion, working with the EPA ombudsman until that office was dismantled, and then taking charge himself. While Nadler largely focused on the cleanup, Maloney’s office took greater control of the health issues. Even at this early date, the trade center cough was a widely recognized medical phenomenon, at least outside Washington, and increasing numbers of responders were showing up at Mount Sinai with worsening respiratory symptoms.
Washington reacted with a yawn. By the first anniversary of the attacks, the Bush administration was threatening to rescind $90 million that had been set aside for responder health programs. Many Republicans couldn’t understand why local workers’ compensation laws couldn’t take care of those who were legitimately injured. With Clinton trying to gain ground on the Senate side to keep the money in the budget, it became clear that the support that might have been expected for such a request—from New York City and the state of New York—was strangely absent. Gov. George E. Pataki supported the idea of a trade center health registry and didn’t think anything more was needed, even though the registry was not designed to provide treatment and never would. What the registry could do was track a large group of responders and monitor whether they improved or got sicker. At City Hall, Mayor Michael Bloomberg, at one time a registered Republican, early in his administration had taken a hard stance on the health issue. Mindful of the city’s potential liability, he repeatedly insisted that it was imprudent to link any illness to contact with the dust unless there was hard scientific proof. If the city were seen lobbying Washington for treatment money, it could be interpreted as an admission that, in fact, people who had worked on the pile had been sickened by the dust, inviting lawsuits.
Washington already was aware of the tremendous liability connected with any admission of culpability. In November, 2001, Rudy Giuliani had bypassed the congressional delegation and gone directly to the administration with a specific request for liability protection for the city that was similar to what had been given the airlines after 9/11 to avoid bankruptcy. That blanket protection allowed the families of victims to surrender their right to sue the airlines in exchange for monetary compensation from a September 11th Victim Compensation Fund. Although Giuliani had repeatedly insisted that there was no lasting danger from the dust, he had been told that the contractors who worked for the city were worried about liability. The city’s own advisors determined that the city needed more than $1 billion of coverage beyond its own self-insurance reserves, and the contractors represented additional liability, depending on the extent of their own insurance coverage. But the city was unable to buy much more in the commercial market. The lack of an agreement on liability had kept the city from signing a formal contract with the four major construction companies or the more than 100 subcontractors who worked at the site for the entire nine months of the $225 million cleanup.
Giuliani returned from Washington with a verbal commitment for $1 billion from the Federal Emergency Management Agency (FEMA) to establish a unique insurance company with just one client—the city of New York—that would be protected against lawsuits arising from the cleanup for a period of 25 years. That was based on a general understanding that, as it had been for soldiers exposed to Agent Orange during the Vietnam War, some illnesses might take decades to develop. The agreement was formally announced in March 2002, with FEMA recognizing the expense as a part of the cost of the city’s recovery. The insurance company, called a captive because it dealt with only one client, had to be chartered to operate in New York State, and that required special legislation in Albany that took 18 months.
Maloney realized that unless the House stood up for them, the workers would have no one with power in Washington on their side. The labor unions had already pleaded for the monitoring program at Mount Sinai, but the administration found it was possible to ignore them and to take away with one hand the money it had given with the other. Within five months of the attacks and the President’s pledge of unconditional support, the administration showed another side of its attitudes about responder health. By then, a little more than half of the promised $20 billion in federal aid had been appropriated. When the new federal budget was delivered in February, it included no additional aid for New York. The White House budget director, Mitch Daniels, said he was going to count $5.5 billion for victims’ compensation as part of the rescue package, an accounting maneuver that went against the basic understanding of everyone involved about what the administration had promised. When Maloney, Nadler, and others in the delegation complained, Daniels dropped all pretense and laid out his true feelings about New York’s problem. “It’s strange to me to treat this as a little money-grubbing game,” he scoffed.1
New Yorkers didn’t like being called money grubbers. Maloney and her staff responded by doing what they had done before when faced with blatant hostility: build a case based on documents and data. They put together a chart showing where the money from the promised $20 billion had gone and where it had never appeared, despite promises.2 It was a way to put pressure on an administration that, at least when it came to ground zero, felt it could ignore its promises. Clearly, the White House was trying to avoid being drawn into a messy and open-ended environmental and health problem that would only slow down the nation’s recovery from the 9/11 attacks. Maloney made the chart available to reporters, who wrote about the missing dollars, embarrassing the administration and, importantl
y, keeping the issue alive.
That process—maintaining vigilance, holding the administration accountable, leaking information to the press, and keeping the controversy alive—became standard operating procedure for the Maloney team. They fell back on it time and again over ensuing years, relying on the strategy to take the place of the allies who normally would have stood up for the city but were now silent. Other House staffers had warned the Maloney office against taking on the Bush administration without adequate support from home. “Informally, they were like ‘Come on, do you really want to do this?’” recalled a staffer. “They said, ‘It’s going to be really expensive and Pataki isn’t even pushing for it. He’s got the Registry and can’t understand why you need anything else.’”
Maloney felt there was no alternative but to push on. The first obstacle was the administration’s plan to renege on the $90 million pledge for responder health issues. About $25 million of that money was supposed to go to Dr. David Prezant’s monitoring and treatment program at the fire department, with a similar amount for Mount Sinai’s World Trade Center efforts, along with other programs, including outreach for police. Maloney sent signed letters from the delegation to President Bush in August 2002 urging that the money be restored. Additional letters went out in October and January asking for the budget to be restored. They weren’t getting much traction on the issue until her staff came up with the idea of inviting sick responders to attend the President’s State of the Union address. In January 2003, members of Congress from New York and New Jersey gave gallery passes to nine ground zero workers so they could plead their case in person. It took another year of lobbying and relentless pressure, but by March 2004, $81 million was available for Mount Sinai and other medical institutions in the New York area to fund a rigorous screening program. Still no money was available for treating workers with persistent symptoms.
The Democrats continued to press the issue, pointing out that not one cent of federal money had gone to provide the medical care the “heroes” needed. By August 2004, New Yorkers were again being called “money grubbers” for demanding aid. Once more, sick ground zero workers were invited to the State of the Union address, after which Maloney and Nadler introduced two critical pieces of legislation: one bill to provide treatment and another to extend the September 11th Victim Compensation Fund to cover workers on the pile whose illnesses had developed after the fund expired.
Those legislative efforts were doomed, but in 2005, an opportunity arose for the Democrats to get some of what they were looking for. The Bush 2006 budget proposal rescinded $125 million in federal funds that were to have been used to reimburse the state workers’ compensation fund for awards to injured ground zero workers. It also would have provided some money for worker training. The congressional staffs mobilized—organizing rallies, transporting ground zero workers to Washington to testify, and trying their best to embarrass the administration into not cutting the funds. Maloney then added a new tactic: shaming the federal government for letting down its own workers. She went after a special program that had been set up to provide medical assistance to the thousands of federal workers who had been sent to New York during the recovery, or who had helped out simply because their offices had been located in lower Manhattan in 2001. Repeatedly requesting information about the program from the Department of Health and Human Services, Maloney’s staff found out that fewer than 400 federal workers had been screened before the program, meant to provide ongoing monitoring for thousands, had simply disappeared. At Maloney’s request, the Government Accountability Office (GAO) investigated. Its conclusion: The program had accomplished almost nothing. The Bush administration’s agonizing response to Hurricane Katrina provided Maloney with an effective put-down. “If this administration can’t even get a list of federal workers who worked at ground zero, let alone manage a program that treats their injuries, what have they been doing for the last four years?” she said in a statement released with the GAO report. “There is no way we can be confident of a sound response to Hurricane Katrina’s health effects—or any future disaster, for that matter.”
By the end of 2005, Maloney’s strategy seemed to be working. The House not only restored the $125 million, but it provided the first federal dollars for treatment. Of the $125 million, $50 million would reimburse the state workers’ compensation board for ground zero claims. In addition, $75 million was set aside for screening, monitoring, and treatment at Mount Sinai and other institutions, representing the first steady source of federal funds. Mount Sinai finally had the ability to offer the procedures, medications, and therapies that ailing ground zero workers expected.
As 2006 began, the contours of the health crisis grew increasingly complex. More than four years had passed since the attacks, and ever more workers and volunteers were registering with Mount Sinai for screening. Some also needed comprehensive medical treatment. This underscored a fundamental problem that the advocates would constantly have to contend with. It is fairly easy to connect physical injuries such as a broken leg or the loss of a finger to a worksite accident. The worker compensation system files are full of such cases. But it is substantially more difficult—and, in many instances, impossible—to prove that a respiratory illness or a disease such as pulmonary fibrosis or cancer, which could have many origins and take many years to develop, was caused by a specific chemical exposure. This left many workers out in the cold, even after a special compensation program had been set up to help them.
The federal government has a long history of offering compensation to the victims of disasters, tragedies, and calamities. Among the earliest federal compensation programs were payments made to people who were victimized by the Whiskey Rebellion on the Pennsylvania frontier during George Washington’s first term in 1794. People who lost property in storms, floods, and fires, as well as those caught in the path of the warring armies in the war of 1812, received federal payment without much political dissension. Troubles followed, however, as victims became claimants, and expectations rose—along with the resentment of those who had suffered some tragedy but were not covered by a government program.3
The September 11th Victim Compensation Fund was given an unlimited budget to provide monetary compensation to the families of those who had been killed or injured in Washington and New York that day. A Washington lawyer who had experience in settling the Agent Orange lawsuits, Kenneth R. Feinberg, was put in charge and given the broadest prerogative to decide, in essence, how much each life was worth.
Even amid the emotional tempest that followed the terror attacks, there had been some mild disagreement about the September 11 fund. The victims of other recent disasters—primarily the 1995 bombing of the federal building in Oklahoma City, and the 1993 bombing at the trade center itself—had not received federal compensation. But patriotism and cooperation were the backdrop of the post-9/11 moment. The criticisms were noted but then gently dismissed. Nearly all the families of the 3,000 victims of the trade center, the Pentagon, and the jet that came down in Shanksville, Penn., agreed to accept the money Feinberg offered in exchange for surrendering their right to sue the airlines.
But a lesser-known part of the fund’s work saw Feinberg compensating people who were injured as a direct result of the attack. Those who had suffered burns, cuts, and broken bones during the first four days, and who reported the injury within a short time after it occurred, were considered victims. Feinberg’s work, then, was to devise a way of calculating what each injury was worth.
That criteria didn’t fit so neatly with respiratory injuries, which had quickly become the most prominent result of exposure to the dust. For these cases, Feinberg was not legally obliged to prove the injury was related to the disaster “beyond a reasonable doubt,” as would have been the case in a courtroom. Instead, he looked for a preponderance of evidence that would lead to the conclusion, all else being the same, that the injured person probably had been hurt as a direct result of the disaster.
Some 1,300 people rece
ived awards from the fund for physical injuries such as burns or broken bones. Another 1,377, mostly recovery workers, had come to Feinberg with respiratory problems that had begun soon after their work on the pile.4 Feinberg used broad discretion, asking for evidence of the first visit to a doctor as proof of the date the illness was noticed. But the fund stopped accepting applications at the end of 2003 and made all its payouts to the injured (totaling more than $1 billion) by the following June. By then, many recovery workers were only starting to develop symptoms. They were shut out of the fund.
For those people, the alternatives were to apply for state workers’ compensation and enter the monitoring program at Mount Sinai or hospitals in the surrounding area, including the University of Medicine and Dentistry of New Jersey, where Sarah Atlas had been treated, and Stony Brook Hospital on Long Island, which took care of Mike Valentin. But until federal assistance became available in 2006, the hospitals could not offer treatment or cover the cost of prescriptions.
Despite facing stiff odds and the lingering suspicion in Washington and New York that there were frauds in the growing number of people who claimed to have been sickened by the dust, New York’s congressional representatives kept fighting. Then, a few days into 2006, the fears of many New Yorkers seemed to be realized when it was widely reported that New York Police detective James Zadroga, who was just 34 years old, the highly decorated son of a veteran Polish-American police chief from New Jersey, had died of respiratory and cardiac failure. Zadroga had worked at ground zero.
In his own written account,5 Zadroga recalled how he had been on his way back from an arraignment in New York City that morning and was making the long drive from Queens, where he was assigned to the Street Crimes Unit, to his home in a rural part of upstate New York, about 90 miles north of the city. He was about halfway there when he turned off his Kenny Chesney country music CD, turned on the radio, and heard the news about the World Trade Center. At home, his wife, Ronda, who was seven months pregnant, was just waking up. They turned on the television, uncertain how the events that were unfolding on the screen would affect them and the life they were trying to put together. She begged him not to go back to the city, but he knew it was his duty. He arrived at ground zero after the towers collapsed and was assigned to perimeter traffic. But he felt he could do more. He helped out where he could, securing buildings, working on the bucket brigade, or recovering human remains. He was caught in the dust cloud after Building 7 came down. In all, he spent 20 hours there that first day and into the next morning. In the following three weeks he accumulated 120 hours of overtime, along with his regular 12-hour shifts. He was exposed to the heaviest and most dangerous dust for many hours, and it appeared to affect him severely. Within a year, he was seeing a pulmonologist, who recorded a rapid decline in his health. By October 2002, tests showed that his lung capacity had been cut in half. That doctor was the third to attribute Zadroga’s deteriorating condition to trade center dust. But Zadroga was having trouble convincing the police department, which had classified him a habitual sick leave offender and threatened to fire him.
City of Dust Page 21
