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Benzman v. Whitman

ELR Citation: 36 ELR 20036
Nos. No. 04 Civ. 1888(DAB), (S.D.N.Y., 02/02/2006)

A court partially grants the U.S. Environmental Protection Agency's (EPA's) and individuals' motions to dismiss a class action suit stemming from plaintiffs' exposure to hazardous substances in the interior of their residences, schools, and workplaces as a result of the dust and debris released from the collapse of the World Trade Center towers and surrounding buildings following the terrorist attacks on September 11, 2001. The court dismissed the constitutional claims against a former Assistant Administrator of EPA because none of the complained of actions are attributed to her individually, and the complaint contains no allegedly false statement made by the assistant individually concerning air quality. The former EPA Assistant Administrator, however, is not entitled to qualified immunity and her motion to dismiss was denied. No reasonable person would have thought that telling thousands of people that it was safe to return to Lower Manhattan, while knowing that such return could pose long-term health risks and other dire consequences, was conduct sanctioned by U.S. laws. In addition, while the regulations asserted by plaintiffs as the basis for their Administrative Procedure Act (APA) claim are discretionary in nature and, therefore, precluded from judicial review under the Stafford Act, the court has jurisdiction over the plaintiffs' claim under the APA for violation of their substantive due process rights. EPA's motion to dismiss the plaintiffs' APA claim was also denied because the court has jurisdiction and the plaintiffs identified a final agency action. Last, the court lacked jurisdiction over the plaintiffs' Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) citizen suit claim because their allegations against EPA are for its failures to carry out its duties under CERCLA as administrator of CERCLA, not as a regulated party. EPA, as administrator of CERCLA, does not regulate itself. The appropriate citizen suit provision for the type of allegations by plaintiffs here is §310(a)(2), which limits venue to the District of Columbia.