UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
NEW YORK
In Re World Trade Center Disaster Site Litigation
21 MC 100 (AKH)
03 Civ. 00007 et al. (AKH)
2006 U.S. Dist. Lexis 75020
October 17, 2006, Decided
Alvin K. Hellerstein
United States District Judge.
Opinion Denying and Granting Motions for Judgment on the Pleadings and for Summary Judgment
It took ten months to remove the debris that resulted when the terrorists crashed their hijacked airplanes into the Twin Towers of the World Trade Center on September 11, 2001. Thousands of workers converged on the site, toiling day and night, seven days a week until they completed their jobs. They risked their lives from shifting debris, fires, smoke, and acrid and polluted air to complete their work in record time, in an extraordinary effort to close the gaping hole caused by the terrorists to the landscape and psyche of New York and the nation.
I consider in this Opinion the claims of approximately 3,000 of these workers, claiming permanent injury to their respiratory systems and their health and vitality, and a shortening of their lives. They claim that the City and its contractors, and other Defendants, were negligent in monitoring the air and assuring appropriate safety in the workplace, particularly in not providing adequate respiratory equipment, and assuring proper use thereof.
Defendants now move to dismiss these claims, contending that they are immune from suit pursuant to state and federal laws providing immunity for actions undertaken in response to a disaster created by an enemy attack on the state and nation. Plaintiffs argue that Defendants are not immune, particularly in light of Congress’ clear contemplation, in the Air Transportation Safety and System Stabilization Act of 2001, that the City was exposed to numerous claims resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001, and granting to the City a cap to limit its potential liability stemming from such claims. Furthermore, Plaintiffs argue, Congress again recognized the City’s exposure to suits such as those at bar by granting a one billion dollar fund to the City to pay for the City’s losses, liabilities and expenses, enabling the City to create a captive insurance fund to insure its exposure.
I discuss the various motions of the City and other Defendants in this Opinion and hold that the Defendants are benefited by limited immunity, limited according to time and activity, and that the issues are fact-intensive and cannot be decided on motion at this juncture. My conclusion also expresses some suggestions for the future progression of these cases, to enable the parties to begin discussions of settlements and to prepare for trial.
TABLE OF CONTENTS
I. INTRODUCTION
II. THE FACTUAL BACKGROUND
A. The Declarations of Emergency: The Immediate Government Response
B. The City Asserts Control and the Recovery Operation Commences
C. The Development of Health and Safety Standards at the Site
D. The Implementation and Enforcement of Health and Safety Standards
E. The Role of Federal Agencies
1. The Activation of Federal Assistance
2. The Role of the Occupational Safety and Health Administration
3. The Role of the Environmental Protection Agency
4. The Role of the Army Corps of Engineers
F. The Rescue and Recovery Effort Comes to a Close
G. The Continuing Vitality of Applicable Safety Standards and Labor Laws
III. THE PROCEDURAL BACKGROUND AND THE PENDING MOTIONS
A. The Procedural Background
B. The Pending Motions
IV. THE PREEMPTIVE EFFECT OF THE ATSSSA
A. The Doctrine of Preemption
B. The Alleged Preemptive Effect of the ATSSSA and the Captive
Insurance Fund
C. Discussion
V. THE MOTIONS FOR JUDGMENT ON THE PLEADINGS--STATE IMMUNITY
A. The Standard of Review
B. The New York State Defense Emergency Act
1. The Immunity Provision of the SDEA
2. The Continued Vitality of the SDEA
3. Qualifying Laws under the SDEA
4. Civil Defense Activities and the Requirement of Good Faith
a. Civil Defense Activities
b. The Requirement of Good Faith
c. Discussion
C. The Argument of Immunity Under the New York Disaster Act
1. The Limited Scope of the Disaster Act’s Application
2. The Extension of Disaster Act Immunity to Non-Government Actors
D. New York State Common Law Immunity
VI. THE MOTIONS FOR SUMMARY JUDGMENT--FEDERAL IMMUNITY
A. Standard of Review
B. Derivative Federal Immunity
1. The Relevant Case Law
2. Application to the Rescue and Recovery Efforts at Ground Zero
C. Stafford Act Immunity
D. Other Bases for Federal Immunity
VII. THE MOTIONS BY THE LESSEES
A. The Work Performed by the Lessee Defendants
1. The Work Performed by Con Edison
2. The Work Performed by the Silverstein Defendants
B. Plaintiffs’ Supplemental Submissions
C. Alleged Grounds of Liability
1. Dismissal of Claims Pursuant to New York Labor Law for Failure
to Show the Necessary Degree of Ownership or Control
2. Dismissal of Claims Sounding in Negligence in the Absence of Any
Duty Owed
3. Dismissal of all Remaining Claims for Failure to Show any
Underlying Claim
VIII. CONCLUSION
I. INTRODUCTION
The terrorist attacks of September 11, 2001 inflicted a gaping wound on the structure and spirit of New York City. But it did not defeat the City, nor its population. As the nation began to absorb the enormity of the devastation and loss of lives that resulted from the terrorist attacks, an army of responders--instrumentalities of federal, state and city governments, private contractors, and thousands of firemen, policemen, paramedics, and construction workers--descended on the site of the devastation in New York City, initially to participate in the desperate search for survivors and, after all hope of life had faded, to assist in the recovery of remains and the clearing of debris. Working night and day, seven days a week, overcoming intense heat, persistent fires, and noxious fumes, the work was done and the site was cleared, in just under ten months--record time.
The extraordinary efforts of the men and women who worked on the site took a toll. A few have died, with at least one of their deaths having been attributed to the poisons they breathed while looking for survivors and clearing the debris. Anthony DePalma, Debate Revives as 9/11 Dust is Called Fatal, N.Y. Times, April 14, 2006, at B2. Many others allege serious respiratory injuries, threatening to shorten their lives and afflict their remaining years. Anthony DePalma, Illness Persisting in 9/11 Workers, Big Study Finds, N.Y. Times, Sept. 5, 2006, at A6. A study released by doctors at Mount Sinai Medical Center shows that approximately 70 percent of the 10,000 workers who were tested reported that they suffer from new or substantially increased respiratory problems since September 11. Id. In all, more than 3,000 of these men and women have filed suit in this Court, and even more suits are likely as respiratory injuries continue to manifest themselves. Under procedures outlined in the New York General Municipal Law section 50-e, allowing for leave to serve notice of claims upon the City of New York outside of the prescribed 90-day period, hundreds of additional persons have gained leave by the New York Supreme Court also to file suits, adding to the lawsuits consolidated before me. Abdelrehim v. City of New York, 2006 WL 2193044 (S.D.N.Y. Aug. 3, 2006).
The main Defendant in these lawsuits is the City of New York. The City’s Department of Design and Construction coordinated all the work on the site, drawing on the expertise of other City agencies, for example, the City Office of Emergency Management, and of the federal and state governments. The Port Authority of the States of New York and New Jersey, the owner of the World Trade Center site, also had a role, and it, too, is named as a Defendant. The site was divided into quadrants, and in each, a general contractor and numerous subcontractors undertook the work; they also are Defendants. Finally, various entities with a property interest in buildings at and around the World Trade Center site, namely Verizon Communications, Consolidated Edison, the Silverstein Entities and the Westfield Entities, are named as Defendants.
II. THE FACTUAL BACKGROUND n1
The devastation wrought by the terrorist attacks of September 11, 2001 was unimaginable. One and Two World Trade Center, once great symbols of the City’s economic strength and vitality, came crashing down, consuming and entombing the remains of almost 3,000 people who were caught inside the buildings. Three World Trade Center, Four World Trade Center, and Six World Trade Center sustained extensive fire damage. Seven World Trade Center caught fire from the falling debris of the Twin Towers and, after burning unimpeded for several hours, also collapsed. See In re September 11 Property Damage and Bus. Loss Litig. (Aegis Ins. Serv. v. The Port Authority), 2006 WL 62019 at *1 (S.D.N.Y. Jan. 12, 2006) (hereinafter 7WTC). The shopping malls and parking lots beneath the World Trade Center complex sustained massive structural damage and partial collapse. The World Financial Center and the glassen closure of its “Winter Garden,” the Verizon Building at West and Vesey Streets, the Deutsche Bank Building at 90 West Street, the St. Nicholas Church at Barclay and West streets, and 125 Cedar Street also sustained extensive damage.
Rescue and recovery workers, and the contractors and government agencies overseeing their efforts, were faced with the daunting task of conducting an emergency response in a hellish setting: a smoldering pile of twisted and entangled shapes of rods and beams towering over twelve stories high and weighing more than one and half million tons, harboring fires within and emanating clouds of noxious dust and vapors. The fires took three months to go out, until December 2001. Conditions were further exasperated by the nature of the various substances present at the site. Thousands of tons of hazardous materials were released into the air of lower Manhattan, including asbestos, lead, mercury, cadmium, polychlorinated biphenyls (“PCBs”), benzene, and chromium, among others, creating a mixture of toxic gases and ultra-fine particles never before experienced on such a scale. As Plaintiffs’ Master Complaint alleges:
asbestos, lead, and mercury from such items as personal computers, main frame computers, and copy machines; mercury from florescent lights; plastics, polyvinyl chloride insulations of cables, nylon carpeting, and other materials containing and/or producing dioxins and other harmful materials when burned; benzene from the jet fuel and other petroleum products stored in the towers; lead ammunition from the on-site Secret Service shooting range; and arsenic, lead, mercury and chromium stored in the U.S. Customs Laboratory.
(Pls.’ Master Compl. P376, dated Aug. 19, 2005.)
In the initial days following the attacks of September 11, the primary focus of all at the site was rescuing any potential survivors. In re World Trade Center Disaster Site Litig. (Hickey v. Port Authority of N.Y. & N.J.), 270 F. Supp. 2d 357, 372 (S.D.N.Y. 2003); aff’d in part, dismissed in part by McNally v. The Port Authority, 414 F.3d 352 (2d Cir. 2005) (hereinafter Hickey). Unfortunately, there were too few and, by September 29, 2001, all hope of finding lives having faded, the search for survivors closed, and efforts turned to “demolition of the ruined structures of the Towers, removal of thousands of tons of debris, and cleanup of the World Trade Center site[.]” Hickey, 270 F. Supp. at 372.
A. The Declarations of Emergency: The Immediate Government Response
In the aftermath of the attacks, government leaders at the local, state and federal levels took immediate action to secure physical assistance and funding for the recovery effort at the World Trade Center site. The Mayor of the City of New York, the Governor of the State of New York, and the President of the United States all declared states of emergency, authorizing and directing government agencies and officials to undertake those measures necessary to assist the City of New York in its process of recovery.
Pursuant to the authority granted him under the Executive Law of New York, N.Y. Exec. Law § 24 (McKinney 2006), the Mayor of the City of New York, Rudolph W. Giuliani, issued a Mayoral Order on September 11, 2001, proclaiming a local state of emergency based on the danger to public safety posed by the attacks. In declaring a state of emergency, the Mayor directed “the Police, Fire and Health Commissioners and the Director of Emergency Management to take whatever steps are necessary to preserve the public safety and to render all required and available assistance to protect the security, well-being and health of the residents of the City.” Proclamation of a State of Emergency, Mayor Rudolph W. Giuliani (September 11, 2001). In subsequent proclamations, and pursuant to Executive Law section 24(1)(g) allowing for suspension of local laws and regulations during states of emergency, the Mayor directed that local regulations governing the leasing of real property to the City be suspended so as to “permit the immediate leasing of office and other space for use by City agencies in order to continue to provide essential services and critical functions of the City.” Proclamation of State of Emergency, Mayor Rudolph Giuliani (Sept. 14, 2001). The Proclamation of Emergency was renewed by Mayoral Order every five days, as mandated by the Executive Law, throughout the duration of the recovery and cleanup efforts at the World Trade Center site, through the end of June 2002. See e.g., Proclamation of a State of Emergency, Mayor Rudolph W. Giuliani (Sept. 11, 2001); Proclamation of State of Emergency, Mayor Michael R. Bloomberg (June 29, 2002).
A disaster emergency was also declared for the State of New York by Executive Order of Governor George E. Pataki on September 11, 2001, pursuant to the authority granted him under the New York State and Local Natural Disaster and Man-Made Disaster Preparedness Law (“Disaster Act”). N.Y. Exec. Law §§ 20-29-g (McKinney 2006). Noting the “unspeakable atrocities” that occurred in New York City, Washington D.C., and Pennsylvania, Governor Pataki “direct[ed] the implementation of the State Disaster Preparedness Plan and authorize[d],” various state agencies to take “all appropriate actions to assist in every way all persons killed or injured and their families, and protect state property and to assist those affected local governments and individuals in responding to and recovering from this disaster, and to provide such other assistance as necessary to protect the public health and safety[.]” Exec. Order No. 113 of Governor George E. Pataki (Sept. 11, 2001), N.Y. Comp. Codes R. & Regs. tit. 9, § 5.113 (2005).
On September 14, 2001, President George W. Bush, acting pursuant to the National Emergencies Act, 50 U.S.C. §§ 1601-1651 (2006), declared the existence of a national state of emergency “by reason of the terrorist attacks at the World Trade Center ... and the Pentagon, and the continuing and immediate threat of further attacks on the United States.” Proclamation No. 7463, 66 Fed. Reg. 48, 199 (Sept. 14, 2001). The declaration was deemed effective as of September 11, 2001. The declaration served also to activate the provisions of the Stafford Disaster Relief and Emergency Assistance Act (“Stafford Act”). 42 U.S.C. §§ 5121-5206 (2006). Pursuant to the Presidential declaration of a national emergency, the Director of the Federal Emergency Management Agency (“FEMA”), Joe M. Allbaugh, declared that a national emergency existed in the State of New York and, in the interest of ensuring the provision of federal assistance, authorized FEMA “to allocate from funds available for these purposes, such amounts as [are] necessary for Federal disaster assistance and administrative expenses.” 66 Fed. Reg. 48,682 (Sept. 21, 2001).
B. The City Asserts Control and the Recovery Operation Commences
The City response began mere moments after the terrorist attacks on New York City. American Airlines Flight 11 crashed into One World Trade Center at 8:40 a.m. By 8:50 a.m. on September 11, the City, initially through the Fire Department, had established its Incident Command Post and had asserted control over the World Trade Center complex and the surrounding areas. The rescue and recovery efforts at the site were thereafter coordinated through the City Office of Emergency Management (“OEM”), with the Fire Department designated as the incident commander for the site, and with the City Department of Design and Construction (“DDC”) assuming total control over all aspects of safety, construction, demolition, and cleanup activities at the site.
On September 12, 2001, the DDC set up a temporary command center at Public School IS 89 in lower Manhattan, immediately to the North of the World Trade Center site, and commenced daily meetings to organize rescue and recovery efforts. Of utmost concern to the DDC was securing the World Trade Center site and limiting access to the area. Together with other City agencies, including the OEM, the DDC established stringent protocols determining “not only who would have access to the site, but also how that access would take place and under what constraints.” (Pls.’ Decl. at 11.) The City further enlisted the Port Authority of New York and New Jersey (the “Port Authority”) to assist in maintaining the security of the perimeter and to report observed safety protocol discrepancies. (Pls.’ J.A., Vol. 1, Ex. 8.)
The City also engaged private contractors for the recovery effort. On September 15, 2001, FEMA confirmed that contracts could be awarded without need for competitive bidding under the emergency conditions existing after September 11. (Pls.’ J.A. Vol. 4, Ex. 53.) Requirements for competitive bidding having been waived, and pursuant to the Declarations of Emergency issued at the City, State and Federal levels, the DDC engaged Bovis Lend Lease, AMEC Construction Management, Tully Construction Company, and Turner Construction Company to “provide the work necessary for removal and demolition services.” n2 (Pls.’ Decl. at 6.) These four contractors were designated as the City’s Primary Contractors and assumed lead roles in the recovery and cleanup efforts at the site. n3 (Pls.’ J.A. Vol. 8, Ex. 149 (WTC Environmental Health and Safety Plan dated Oct. 15, 2001).) The efforts of the Primary Contractors were coordinated, and supervised, through the DDC at twice daily meetings held at the temporary command center, and by numerous visits to the worksite. By September 14, 2001, the DDC had divided the site into four quadrants with a Primary Contractor assigned as a “construction manager” for each individual quadrant. n4 The Primary Contractors acted as supervisors for their individual quadrants, with responsibility for enforcing applicable regulations and ensuring compliance.
Cognizant also of the need for additional space outside of the World Trade Center complex to which all debris from the site could be removed and where searches for evidence and human remains could be conducted, the City re-opened the Fresh Kills Landfill (“Fresh Kills”) on Staten Island. As debris was cleared from the site, it was loaded onto barges and transferred by the Department of Sanitation (“DOS”) to Fresh Kills for sorting and further inspection.
The DDC, with the assistance of the Port Authority engineers, regulated and controlled the removal of debris from the site, and all issues pertaining thereto. Global Positioning System devices were installed in all vehicles carrying debris from the site, allowing the City to improve the efficiency of the debris removal process. All trucks leaving the site were issued “Load Debris Tickets” containing information about the destination of the truck and its cargo. As debris was removed from the site, the DDC tracked and coordinated the following: “(a) FDNY/Rescue operations; (b) Structural concerns; (c) Progress of work; (d) Weather; (e) Trucking/Traffic operations-Manifests; (f) Safety concerns; (g) Manpower (contractor/CM Staff-site & home office); (h) Equipment on site; (i) Idle equipment; (j) Material deliveries/usage; and (k) Crane issues.” (Pls.’ J.A. Vol. 1, Ex. 7.) The DDC further controlled all aspects relating to persons working at the site, from regulating shift changes and meal allowances, to payment and payroll.
In the initial days and weeks following September 11, the City and its Contractors, together with public utilities, worked also to restore essential services to the City. The September 11 attacks resulted in the immediate loss of power to all of lower Manhattan and in the destruction of critical components of the gas and steam infrastructure. The Con Edison substations, which had been located directly beneath World Trade Center Seven, were destroyed by fire and by the building’s ultimate collapse, resulting in a critical disruption of services to Lower Manhattan. See 7WTC, 2006 WL 62019 at *7-10. Con Edison assumed sole responsibility for restoring electric, gas and steam services and related facilities that were damaged or destroyed due to the events of September 11. The Verizon Building, located at 140 West Street, also sustained severe structural damage, crippling the phone system. Other critical services, such as the transportation system running through the World Trade Center site, were also destroyed and disrupted.
C. The Development of Health and Safety Standards at the Site
Conditions at the World Trade Center site, particularly the hazards posed by the dust and contaminants that enveloped lower Manhattan for weeks following the attacks, posed significant dangers to the rescue and recovery workers. (Pls.’ Decl. at 4.) In the months following September 11, and continuing to the close of operations at the site in June of 2002, the Occupational Safety and Health Administration (“OSHA”) reported levels of various contaminants, including dioxin and asbestos, in excess of OSHA’s permissible exposure limits. n5 The debris pile itself, containing what remained of two 110-story towers of concrete and steel, created its own volatile, unstable, and inherently dangerous worksite. Implementation and enforcement of viable and responsive health and safety standards was therefore essential. The workers at the site were presented with a dangerous environment, below and surrounding their work activities, threatening their health and safety.
By September 12, 2001, the City had established itself as the lead entity charged with the development and enforcement of health and safety standards at the site, and had instituted daily meetings with representatives of the Primary Contractors as well as with the FDNY, NYPD, OEM, and OSHA, to organize the rescue and recovery operation. These meetings would continue throughout the duration of the recovery effort. At the request of the DDC, Bechtel Environmental Safety & Health (“Bechtel”) also began work at the site on September 12, 2001, assisting the City with monitoring compliance with health and safety standards.
Critical to any health and safety plan was the development of appropriate standards for the use of personal protective equipment (“PPE”), including respirators. Within hours of the collapse, the FDNY advised its employees that respirators should be worn at the site and placed an order for over 5,000 respirators and 10,000 cartridges to provide its employees with the necessary respiratory protection. n6 The FDNY also ordered adapters to convert 15,000 “Scott” facemasks, designed for use with self-contained breathing equipment, to be used instead with filter cartridges. The City was also focused on establishing appropriate PPE standards at the site and, by September 21, 2001, plans were in place to:
Develop the job and site specific PPE requirements (DDC); Develop and distribute a list of required PPE to all site emergency response and workers, including posters for staging areas (DDC); Provide respirator fit-testing, maintenance and use information, and comprehensive technical support (NYCDOH); Aggressively promote minimum PPE use in all areas where highest exposures may occur (NYCDOH, NYPD, FDNY, National Guard).
(Pls.’ Timeline at 2.)
The DDC, together with the New York City Department of Health (“City DOH”), assumed primary responsibility for developing and enforcing PPE requirements, with each agency at various times proclaiming itself as the lead agency in charge of worker health and safety. As a general matter, the DDC assumed responsibility for City and contractor personnel, while the City DOH assumed responsibility for FDNY and NYPD personnel.
On September 20 and 22, the City DOH issued criteria for minimum safety gear to be worn at the site. Similarly, on September 21, and again on October 19, the City DOH issued orders mandating the use of specific protective actions to be taken as personnel and vehicles left the site:
It is hereby ordered that all persons leaving the WTC site shall follow personal hygiene protocols, including but not limited to ... removal or HEPA vacuuming of work clothes ...
It is further ordered that all vehicles leaving the WTC site be spray washed[.]
(Pls.’ J.A. Vol. 5, Ex. 64 (City DOH Order dated Sept. 21, 2001).) On October 22, 2001, the City DOH issued a directive specifically addressing the use of safety equipment and respirators:
Personal Protective Equipment Required in Debris Area
- Hardhat or helmet
***
- Respirator (half-face reusable) with P100/organic vapor/acid gas (OVAG) filter cartridges
(Pls.’ J.A. Vol. 6, Ex. 97 (Health Bulletin dated Oct. 22, 2001).)
The DDC, together with Bechtel, also played an important role in establishing health and safety protocols, periodically issuing Environmental Health and Safety Bulletins outlining the applicable safety standards in force at the site. In a Bulletin issued in February 2002, the DDC, after consultation with OSHA representatives, announced its concurrence with the City DOH determination as to minimum respiratory protective equipment:
A half-face respirator with P-100, organic vapor, acid gas filters/cartridges is required within the confines of the slurry wall and for any activity or area outside the slurry wall that generates dust, fumes or vapors[.]
(Pls.’ J.A. Vol. 6, Ex. 93 (February 2002 Environmental Health and Safety Bulletin).)
D. The Implementation and Enforcement of Health and Safety Standards
From as early as September 12, 2001, the DDC, working primarily with Bechtel, the lead contractor in charge of health and safety concerns at the site, and with the assistance of the Port Authority and the Primary Contractors, began conducting inspections in order to enforce compliance with applicable PPE requirements. Federal agencies, including the Environmental Protection Agency (“EPA”) and OSHA, also participated in safety monitoring and assumed a leading role with respect to certain tasks relevant to health and safety monitoring.
By October of 2001, the City had distributed an initial version of its comprehensive Environmental Safety and Health Plan (the “ES&H Plan”), addressing all aspects of worker safety at the site. (See Pls.’ J.A. Vol. 6, Ex. 99, 100, 109; Vol. 8, Ex. 149.) Numerous revisions to the Plan would follow. The ES&H Plan operated to define the “minimum acceptable requirements for ensuring workers’ safety and health at the World Trade Center (WTC) Emergency Project” and established the hierarchy of responsibility and enforcement. Setting forth its general purpose and the DDC’s lead role in its enforcement, the Plan expressly provided as follows:
This ES&H Plan is directly applicable to all work conducted by agency and prime contractor/subcontractor personnel engaged in any activity associated with the cleanup and recovery efforts on the WTC Emergency Project. The DDC has overall responsibility for the site’s ES&H program.
(Pls.’ J.A. Vol. 8, Ex. 149.)
The ES&H Plan provided that the DDC had lead responsibility for “Environmental Health and Safety Services,” with the City’s Primary Contractors also assuming responsibility for enforcing the terms of the Plan. Specifically, the Plan provided that “each prime contractor and their subcontractors are responsible for implementation, enforcement and compliance with all aspects of this plan.” (Pls.’ J.A. Vol. 8, Ex. 149.) Site monitoring was also performed by other city, state and federal agencies. The results of such monitoring, and all tests setting forth rates of exposure were to be provided to the City DOH for presentation of a final report to the DDC. Further, the DDC alone had the authority to stop work in the event of workplace hazards.
Separately from the ES&H Plan, the DDC and FDNY, as co-incident commanders at the site, together with the Primary Contractors, four separate employer/employee associations, and OSHA entered into the WTC Emergency Project Partnership Agreement (the “Partnership Agreement”) on November 20, 2001, and which was subsequently revised on April 10, 2002. ( See Defs.’ J.A. Vol. 3, Ex. AO (WTC Project Partnership Agreement, dated April 10, 2002).) The Partnership Agreement affirmed “the value of working in a cooperative, focused and voluntary effort to ensure a safe and healthful environment for everyone involved,” and memorialized the parties’ commitment to “advance the goal of environmental health and safety” and to “share safety hazard data.”
In accordance with the ES&H Plan and the Partnership Agreement, reports documenting the results of these safety compliance inspections were prepared throughout the duration of the recovery effort at the direction of the DDC. The reports prepared by the DDC, and reports and documents prepared by the Primary Contractors and other agencies at the site, highlight ongoing and persistent problems with enforcing compliance with applicable PPE requirements. n7 Within the first month of initiating operations at the site, the Primary Contractors, AMEC, Tully, Bovis, and Turner, had all documented problems with PPE compliance and particularly with respirator use. Indeed, problems with respirator usage would pervade the entirety of the recovery operation at the site, with estimates prepared in January of 2002 showing compliance rates below twenty-nine percent.
E. The Role of Federal Agencies
The enormity of the task necessitated the involvement of, and cooperation with, federal agencies. Although the City, through the DDC, assumed primary control over the site, several federal agencies, including FEMA, OSHA, the EPA and the United States Army Corps of Engineers (“Army Corps”), participated in the rescue and recovery effort. (Pls.’ J.A. Vol. 4, Ex. 49, FEMA Debris Monitoring Plan (“The City has primary responsibility for oversight and monitoring.”).) These various agencies would ultimately play an active role in the efforts at the World Trade Center, most particularly through their attendance at meetings addressing overall concerns of worker health and safety and through their assistance in developing and enforcing appropriate health and safety protocols responsive to such concerns.
1. The Activation of Federal Assistance
On September 14, 2001, President George W. Bush declared a National State of Emergency, thereby activating the Stafford Disaster Relief and Emergency Assistance Act (“Stafford Act”), 42 U.S.C. §§ 5121-5206 (2006). Activation of the Stafford Act by Declaration of National Emergency allowed for implementation of the course of federal assistance provided pursuant to the framework outlined in the Federal Response Plan (“FRP”). (Defs.’ J.A., Vol. 1, Ex. L (the “FRP”).)
The FRP, an agreement among twenty-seven federal agencies, “establishes a process and structure for the systematic, coordinated, and effective delivery of federal assistance to address the consequences of any major disaster or emergency declared under the [Stafford Act].” (FRP, Ex. L at 1.) Specifically, the FRP sets forth a “Basic Plan,” presenting “the policies and concept of operations that guide how the Federal Government will assist disaster-stricken State and local governments.” (Id. at 4.) The Basic Plan provides that, upon exhaustion of local resources and at the request of the affected local government, FEMA shall operate as the lead federal agency for coordinating an appropriate federal response, providing for both technical and financial assistance. (Id. at 7-8, 12.)
The FRP further coordinates the structure and nature of federal assistance by grouping the types of federal assistance most likely to be utilized by overwhelmed state and local governments into twelve separate Emergency Support Functions (“ESFs”). n8 (Id. at 13.) Each individual ESF is headed by a primary agency “designated on the basis of its authorities, resources, and capabilities in the particular functional area,” and assisted by one or more other federal agencies acting in a supporting capacity. (Id.) As the lead agency in charge of coordinating any federal response pursuant to a declaration of emergency, FEMA is authorized to activate “some or all of the ESFs, as necessary.” (Id.)
Pursuant to activation of the FRP, and FEMA’s subsequent activation of the relevant ESFs, OSHA, the EPA and the Army Corps each provided technical and physical assistance to the City of New York in their respective areas of expertise and authority. Federal financial assistance was also provided throughout the duration of the recovery effort with FEMA promising to cover the cost of all operations at the World Trade Center Site as well as at Fresh Kills Landfill. (Defs.’ J.A., Vol. 2, Ex. S (Press Release, The White House, dated Sept. 18, 2001).)
2. The Role of the Occupational Safety and
Health Administration
In keeping with its designation under the FRP, OSHA assumed the lead role for developing and enforcing respirator requirements at the site. Within a few days of the attacks, OSHA had begun working with the City and other local agencies to develop comprehensive and effective PPE requirements and overall worker health and safety protocols. (Defs.’ J.A., Vol. 3, Ex. AC (email from Bob Adams).) OSHA advised the City that the use of P-100 filters, rather than standard combination filter/cartridges, would provide workers with adequate protections against the respiratory dangers presented at the site. OSHA also performed atmospheric monitoring throughout the rescue and recovery effort to establish the geographical boundaries within which respirator use would be required and in order to determine the level of respiratory protection needed to protect workers against contamination by the surrounding atmosphere. (Def. J.A. Vol. 3, Ex. AE (Ryan Dep.) at 144:5-25.)
On approximately September 20, 2001, at the request of the City DOH, OSHA assumed a role as the “lead agency for distributing, fitting, and training for respirators for the recovery of workers.” (Defs.’ J.A., Vol. 2, Ex. Q (Clark Dep.) at 87:19-88:6; Pls.’ J.A. Vol. 4, Ex. 56.) OSHA took over the operation of the FDNY’s respirator distribution staging area, ultimately becoming the “sole provider of respiratory protection equipment, fit-testing and training for new shift FDNY personnel.” (Clark Dep., Ex. Q at 89:5-25.) OSHA also distributed respirators to NYPD personnel. (Id. at 89:5-25.)
Distribution of respirators and other safety equipment at the site was coordinated through plywood huts set up by OSHA at various points surrounding the World Trade Center project. (Defs.’ J.A., Vol. 3, Ex. AE (Ryan Dep.), at 66:14-67:13.) OSHA ultimately distributed over 131,000 respirators. (Clark Dep., Ex. Q at 66: 7-17.) All individuals to whom OSHA distributed respirators received qualitative and quantitative fit-checks, and training for the proper use, storage, and maintenance of respiratory equipment. (Id. at 87:19-88:6; 93:19-94:5.) OSHA also developed a 10-hour health and safety course focusing on the proper use of respirators. All individuals who worked in a supervisory role at the site, including employees of the Primary Contractors, were required to attend the course prior to being admitted to the site. (Defs.’ J.A. Vol. 3, Ex. AA (“OSHA’s role in Response”); Ex. AJ (“Workers Safety Bulletin # 13); Ex. AK (Weekly EHS Meeting Minutes).)
OSHA, however, did not assume direct supervisory power to assure that workers used respiratory equipment consistently and efficiently. (Pls.’ J.A. Vol. 3, Ex. 39, Public Hearing, 326:19-23; Ex. 40, DOH email (“Unfortunately, OSHA has taken an ‘advisory’ role to date.’“).) OSHA’s role was thus one of “assistance and consultation, not enforcement.” (Pls.’ J.A. Vol. 4, Ex. 42, OSHA Talking Points (emphasis in original).) Even though OSHA deployed over 1,000 inspectors to the site to report safety violations to the various contractors and to document observed safety violations in weekly reports, the prevalence of violations supported by anecdotal evidence of substantial non-use of PPE suggests that safety standards were not uniformly and consistently enforced. (Ryan Dep., Ex. AE at 70:5-72:7, 73:8-25, 143:2-6, 191:22-192:25.) Furthermore, it is not clear if OSHA inspectors had the authority to stop work at the site upon observing critical safety violations. Per the express terms of the ES&H Plan, the DDC retained exclusive stop work authority. Nevertheless, Walter Murray of Turner Construction testified that he believed that OSHA also had authority to stop work at the site. (Defs.’ J.A. Vol. 2, Ex. W (Walter Dep.), 229:21-230:10.) By the close of operations at the World Trade Center site, OSHA had identified more than 9,000 hazards as needing correction. Defendants ask me to presume that employers had corrected the problems pointed out to them, but it would be improper for me to do so on a Rule 12(c) motion. (Def.’s J.A. Vol. 3, Ex. AH (OSHA, Inside the Green Line).) Clearly, problems with enforcing PPE requirements persisted and not OSHA, but the DDC and the private Contractors, were responsible to ensure that compliance at the site would be enforced.
3. The Role of the Environmental Protection Agency
Under the FRP, the EPA is designated as the lead agency responsible for the cleanup of sites contaminated by “hazardous materials release[s] caused by a catastrophic event.” (Defs.’ J.A. Vol. 4, Ex. AS (Hearing Before U.S. Senate Appropriations Committee, Nov. 28, 2001); FRP, Ex. L at TI-13; Vol. 3, Ex. AM (National Contingency Plan, 40 C.F.R. § 300.130(i)).) As such, the EPA, in conjunction with the City Department of Environmental Protection (“City DEP”), assumed the lead role for “hazardous waste disposal” at the World Trade Center site. (Defs.’ J.A. Vol. 4, Ex. AU (Hearing Before U.S. Senate Committee on Environment and Public Works, Feb. 11, 2001); Vol. 2, Ex. O (Touw Dep.) at 123:13-16, 131:25-132:11; Vol. 4, Ex. AT (“EPA Response to September 11: Oh My God, Look at that Plane.”).) The EPA further assumed “primary responsibility for monitoring the ambient air, water and drinking water and coordinating the sampling data for all the response agencies.” (Defs.’ J.A. Vol. 4, Ex. AU (Hearing Before U.S. Senate Committee on Environment and Public Works, Feb. 11, 2001).) In accordance with its lead role in environmental monitoring at the site, the EPA also assumed responsibility for public dissemination of the results of environmental monitoring tests conducted at the site, regularly publishing such results on its website and at the tented area where workers ate their meals. (Defs.’ J.A. Vol. 4, Ex. AQ (New York City Council, Transcript, Nov. 1, 2001) at 24:22-23. (“EPA has taken the lead in making the data available to the public through our website.”).)
Environmental testing by the EPA was coordinated with OSHA and other City agencies through the use of multiple ambient air monitors at locations in and around the World Trade Center site and through the collection of data from pre-existing air monitors in the area. (Defs.’ J.A. Vol. 4, Ex. AY (WTC Response Activity Situation Report # 5).) At the close of operations in June of 2002, OSHA had taken over 6,100 air samples and had turned over the results of these tests to the EPA for further evaluation and examination. (Defs.’ J.A., Vol. 3, Ex. AA (OSHA’s Role in Response and Recovery Operations).) Although other City agencies, including the City DOH and the City DEP, also conducted environmental monitoring at the site, the results of such monitoring were coordinated through the EPA and shared with the Environmental Assessment Group, a inter-agency group comprised of federal, state and City agency representatives. On the basis of these tests, both the EPA and the Environmental Assessment Group determined to adopt the rule that all workers be required to wear respirators at all times while working on the pile. (Pls.’ J.A. Vol. 4, Ex. 62 (“EPA has recommended, and continues to recommend, that workers at the Site wear respiratory protection.”).)
The EPA thus worked with City and federal agencies to develop adequate health and safety protocols, but limited its role to monitoring of air quality and removal of hazardous materials. Indeed, the EPA expressly acknowledged that it lacked “authority to enforce the worker health and safety policies for non-EPA/USCG employees.” (Pls.’ J.A. Vol. 4, Ex. 62 (“We have observed very inconsistent compliance with our recommendations, however, we do not have the authority to enforce the worker health and safety policies[.]”).)
4. The Role of the Army Corps of Engineers
On October 1, 2001, at the request of the City under ESF 3 (Public Works and Engineering) of the FRP, the Army Corps assumed control over the coordination, implementation, structure and enforcement of safety and health procedures and protocols at Fresh Kills. (Defs.’ J.A. Vol. 5, Ex. BH (Office of History, U.S. Army Corps of Engineers, Fact Sheet).) Although the Army Corps’ role at Fresh Kills was limited as an initial matter to the development and implementation of health and safety standards for contractor personnel only, as of October 10, 2001, the scope of its role at Fresh Kills was expanded to include “the implementation of a comprehensive health and safety plan for all personnel working at the landfill site.” (Defs.’ J.A. Vol. 5, Ex. BJ (Amendment to 3-COE, Oct. 10, 2001).)
In accordance with its expanded role at the Fresh Kills Landfill, the Army Corps identified the following areas for inclusion in a comprehensive health and safety plan: “Establish baseline worker exposure levels for each job site activity; Develop job and site specific PPE requirements; Establish an ongoing worker exposure monitoring program; Issue daily work site air quality updates; Implement dust control measures; Establish the presence of health and safety team monitors.” (Defs.’ J.A. Vol. 5, Ex. BJ (Memo Re. Amendment to 30COE NAD-39).) To assist in the development and enforcement of such a comprehensive plan, the Army Corps contracted with a private contractor, Phillips & Jordan, to act as the Construction Manager for the Fresh Kills site. Specifically, Phillips & Jordan assumed responsibility for the management of the forensic recovery operation at the site and for the enforcement of the site safety and health plan. (Defs.’ J.A. Vol. 5, Ex. BK (Phillips & Jordan Disaster Recovery Group: Experience).) The Army Corps further enlisted the assistance of a subcontractor, Evans Environmental & Geosciences, to develop an Environmental Safety and Health Plan tailored to the concerns presented by the recovery operations at Fresh Kills and to develop and implement necessary training and monitoring programs.
F. The Rescue and Recovery Effort Comes to a Close
From the time that the rescue and recovery operation began at the World Trade Center site in the moments following the September 11 attacks, to the close of operations in June of 2002, work at the site never ceased, continuing twenty-four hours a day, seven days a week, including holidays, with the exception only of Veteran’s Day 2001. Despite the enormity of the task, however, work progressed at a rate that many could not have imagined and, as early as April of 2002, the transition of control over the site from the DDC to the Port Authority was being designed and implemented.
On May 10, 2002, control over Seven World Trade Center was returned to the Port Authority. The turnover of control as to the remainder of the World Trade Center complex followed shortly thereafter, on June 30, 2002, with the Port Authority once again assuming complete responsibility for the site. Although control has officially been returned to the Port Authority, work at the site continues to this day with efforts now turned to the completion of all steps necessary to rebuilding.
G. The Continuing Vitality of Applicable Safety Standards and Labor Laws
Throughout the duration of the rescue and recovery effort, the City agencies and Primary Contractors remained obligated to abide by applicable safety standards and labor laws.
Pursuant to the authority granted under Executive Law section 24, both the Governor of the State of New York and the Mayor of the City of New York had the capacity to suspend, or direct the suspension of, “any of its local laws, ordinances or regulations, or parts thereof subject to federal and state constitutional, statutory and regulatory limitations, which may prevent, hinder, or delay necessary action in coping with a disaster or recovery therefrom[.]” N.Y. Exec. Law § 24 (McKinney 2006). Both declined, however, to authorize wholesale suspension of applicable laws and regulations, instead authorizing only the suspension of the sign-in/sign-out procedures required by New York State Labor Law for the period from September 11, 2001 to October 14, 2001. (Pls.’ Decl. at 31.)
In the absence of any such suspension of applicable labor laws, the City expressly mandated that its Primary Contractors abide by and enforce all relevant laws, ordinances, and regulations. Specifically, draft contracts between the DDC and the contractors show that compliance with applicable safety standards was required. The DDS mandated compliance with the following:
a. New York State Uniform Fire Prevention and Building Code;
b. National Fire Prevention Association (NFPA) requirements;
c. National Electrical Code (NEC);
d. American National Standard -- ANSI, A117.1 1986 or current edition (Accessibility and Usability by the Handicapped);
e. Occupational Safety and Health Administration (OSHA);
f. New York State Department of Labor Rules and Regulations;
g. New York State Energy Code;
h. Local Codes and Ordinances;
i. New York State Department of Health Requirements; and
j. New York State Department of Environmental Conservation
(Pls.’ Decl. at 30-31; see also Pls.’ J.A. Vol. 6, Ex. 110, Revised Draft Contracts with Primary Contractors, dated Oct. 11, 2001.)
By their pleadings, however, Plaintiffs allege that “non-compliance with relevant statutes, regulations and ordinances was rampant,” with workers being encouraged in a least some instances to forego filing of complaints for safety violations so as not to interfere with the recovery operation. Plaintiffs contend that this failure to enforce applicable safety standards and the failure to provide adequate and appropriate respiratory protection resulted in unprecedented exposure to various contaminants and toxins, and thus gave rise to the respiratory injuries that now plague so many of the rescue workers.
III. THE PROCEDURAL BACKGROUND AND THE PENDING MOTIONS
A. The Procedural Background
Indeed, just as the process of recovery and rebuilding began, those who participated in the efforts that made such recovery possible began to suffer from a host of respiratory ailments. In the months following September 11, and continuing until today, thousands of suits alleging respiratory injuries sustained as a result of violations of various state and federal safety laws and regulations were filed in New York State Court. To date, more than 3,000 cases alleging respiratory injuries have been filed, with thousands more in the offing. By their Master Complaint dated August 19, 2005, Plaintiffs asserted ten separate claims for recovery. Counts One and Two asserted claims pursuant to New York Labor Law. Counts Three and Four asserted claims pursuant to those provisions of the General Municipal Law allowing suits by injured and deceased firefighters and police officers and their representatives. Count Five stated a claim sounding in common law negligence. Counts Six and Seven asserted claims for medical monitoring and fear of cancer, respectively. Count Eight asserted a claim for fraud and misrepresentation. Count Nine asserted a claim for wrongful death. Finally, Count Ten asserted a claim on behalf of all derivative plaintiffs.
The Defendants removed the actions to federal court asserting jurisdiction under the Air Transportation Safety and System Stabilization Act (“ATSSSA” or “the Act”), 49 U.S.C. § 40101 note (2006). The Act provides a federal cause of action for actions for damages “arising out of” the terrorist-related aircraft crashes of September 11 and vests the District Court for the Southern District of New York with “original and exclusive jurisdiction over all actions brought for any claim (including any claim for loss of property, personal injury, or death) resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001.” ATSSSA § 408(b)(3). Motions to remand followed.
In determining the scope of federal jurisdiction provided under the Act, and noting the important concerns of federalism counseling against the imputation of a congressional intent to preempt an entire panoply of state law without a clearly expressed intent to provide such preemption, I held “that claims alleging respiratory injuries suffered at the World Trade Center site, up to and including September 29, 2001, [were] preempted by section 408 of the Act, and that claims incurred after that date or at different sites [were] not preempted.” Hickey, 270 F. Supp. 2d at 374. Cognizant, however, of the importance of a final determination as to the scope of my jurisdiction under the Act, I certified the order providing for federal jurisdiction for interlocutory appeal, 28 U.S.C. § 1292(b), and stayed the remand of cases not subject to federal jurisdiction pending review by the Court of Appeals. Id. at 381.
Proceeding on the assumption that federal jurisdiction existed as to all cases coordinated under 21 MC 100 absent a decision to the contrary by the Court of Appeals, I directed that the parties proceed on a limited, albeit extensive, course of discovery, focusing on Defendants’ anticipated dispositive defense of immunity under state and federal law and with the aim of establishing a joint offer of proof, alleviating Plaintiffs of the burden of proving all factual averments. (See Case Management Order No. 3 (“CMO 3”), dated Feb. 7. 2005.) I ordered further that Plaintiffs file separate claims for each individual claimant, holding that the individual issues relevant to each claimant predominated over common issues. Thus, as the parties awaited decision by the Court of Appeals, the litigation continued to move forward.
As discovery relevant to the asserted defenses continued, the Court of Appeals delivered its decision. Although the Court concurred with my finding of jurisdiction as to respiratory injuries sustained at the World Trade Center site in the period between September 11 and September 29, 2001, and with my general proposition that, by enactment of the Act, Congress did not in fact intend to “displace the entire panoply of state law ‘regulat[ing] the health and safety of the workplace,’“ McNally v. The Port Authority, 414 F.3d 352, 379 (2d Cir. 2005), the Court expressed in dicta its disagreement with that portion of my Opinion remanding those actions asserting injuries arising at sites other than the World Trade Center and subsequent to September 29. See Id. at 380 (“We need not take the phrase ‘relating to’ to any metaphysical extreme in order to conclude that it encompasses the claims brought before the district court . .., i.e., that airborne toxins and other contaminants emanating from the debris created by the crashes caused respiratory injuries to plaintiffs employed to sift, remove, transport, or dispose of that debris.”). By Order of July 22, 2005, I adopted the reasoning of the Court of Appeals in McNally without prejudice to future submissions as to the extent of my jurisdiction pursuant to the Act. (See Amended Order Following Appellate Remand, Extending Jurisdiction, dated July 22, 2005.)
Having adopted the reasoning of McNally, I turned to furthering the progress of the litigation. The parties appeared before me for a status conference on November 7, 2005 to address the status of limited discovery pursuant to CMO 3 and to address the practicability of adopting a joint offer of proof. At the conference it became readily apparent that any hope for a joint offer of proof had been dashed and I conceded that any further efforts in this regard would be futile. Although abandoning efforts to arrive at a joint offer of proof, I nevertheless acknowledged the dispositive nature of the immunity defenses and directed the parties to proceed, after completion of discovery, by motion. The parties subsequently completed the mandated course of discovery pursuant to CMO 3 in early 2006, with Defendants then proceeding to make motions for judgment on the pleadings and motions for summary judgment on the basis of state and federal immunity.
B. The Pending Motions
The motions now pending before me concern whether Plaintiffs may proceed with their claims alleging respiratory injuries sustained at the World Trade Center site n9 during the recovery and cleanup efforts following September 11 against the City and its Contractors (the “City Defendants”), n10 the Port Authority of New York and New Jersey (the “Port Authority”), Consolidated Edison (“Con Ed”), n11 the Silverstein Defendants, n12 and the Westfield Defendants. n13 The various Defendants assert immunity on the basis of state and federal statutory and common law immunity. Separately, Con Ed, the Silverstein Defendants, and the Westfield Defendants (collectively the “Lessee Defendants”) seek dismissal of all claims against them on the ground that they were divested of their leasehold interests during the duration of the recovery and cleanup efforts at the World Trade Center and thus may not be held liable for injuries sustained during the course of such efforts. The papers filed on behalf of the City Defendants represent the lead papers in this litigation, with the other Defendants filing motions joining, in whole or in part, the defenses asserted by the City Defendants and providing supplemental arguments in favor of dismissal.
The City Defendants move for judgment on the pleadings and summary judgment. By their motion for judgment on the pleadings, the City Defendants assert immunity pursuant to the New York State Defense Emergency Act (“SDEA”), the New York Disaster Act (“Disaster Act”), and under state common law. By their motion for summary judgment, the City Defendants assert immunity pursuant to federal law.
The Port Authority together with the Silverstein Defendants join in part the motions filed by the City Defendants and have filed further, supplemental papers. The Port Authority moves both for dismissal and for summary judgment on the basis of immunity pursuant to the SDEA and moves also for judgment on the pleadings asserting immunity under state common law. Separately, the Silverstein Defendants move for summary judgment pursuant to the SDEA. Both the Port Authority and the Silverstein Defendants move for summary judgment on the ground of federal immunity. The Silverstein Defendants assert further the separate defense that they were divested of their leasehold interest at the time that Plaintiffs sustained their alleged injuries and thus may not be liable for damages resulting from such injuries and move for summary judgment on this basis. n14
The Westfield Defendants move for summary judgment asserting that, as lessees out of possession with no control over the operations at the World Trade Center, that they may not be liable for damages resulting from conditions at the site. The Westfield Defendants move also on the basis of immunity under the SDEA and, to the extent applicable to non-government actors, pursuant to the Disaster Act, state common law, and federal law.
Con Ed moves for summary judgment on the ground of immunity pursuant to the SDEA and on the basis of federal derivative immunity. Con Ed joins in the motions of the other Lessee Defendants, namely the Silverstein and Westfield Defendants, seeking dismissal on the ground that as a lessee out of possession it lacked control over the operations at the World Trade Center site. Separately, Con Ed seeks dismissal of Plaintiffs’ claims alleging fraud and misrepresentation, medical monitoring, fear of cancer and wrongful death, and all derivative claims of spouses and children.
The parties appeared before me for oral argument on June 22 and 26, 2006. By Summary Order of June 23, 2006, in the absence of any showing by Plaintiffs that the claims against them should be allowed to proceed, I granted the Westfield Defendants’ motion for summary judgment and dismissed all claims against them currently pending under 21 MC 100. (See Summary Order, dated June 23, 2006.) Concerned that Plaintiffs had failed to state viable claims against various of the other Defendants as well, I directed that they re-plead certain of their claims. By separate Summary Order of June 27, 2006, I dismissed the claims against the Port Authority without prejudice to re-pleading. I further directed Plaintiffs to re-plead the claims asserted against Verizon and Tishman Construction, as well as various of the contractor defendants. (Id.) As to the individual counts set forth in Plaintiffs’ Master Complaint, I ordered Plaintiffs to remove those counts alleging claims for medical monitoring and fear of cancer, as these counts are remedies that follow the success of Plaintiffs’ substantive claims, and further advised Plaintiffs to reconsider their claim of fraud and misrepresentation. Plaintiffs also were directed to complete all individual check-off complaints by October 20, 2006. (Id.) Finally, I directed Plaintiffs to file supplemental briefing as to the veracity of claims pending against the Silverstein Defendants and Con Ed. (See Transcript, dated June 22, 2006, 117:4-16; 125:7-9.) Judgment was reserved as to all other matters.
The parties have now fully complied with all of the foregoing. Plaintiffs have submitted newly amended Master Complaints as to the separate categories of Defendants with separate complaints filed as to the City, the Port Authority, the World Trade Center Defendants, Con Ed, the Construction Defendants, the Contractor Defendants, Verizon Communications, and the Tishman Defendants. n15 By their newly amended complaints, Plaintiffs have dropped all claims sounding in medical monitoring and fear of cancer as well as all claims of fraud and misrepresentation. Thus, Plaintiffs now assert claims for negligence, wrongful death, derivative plaintiffs, and for violations of New York Labor and General Municipal Law.
IV. THE PREEMPTIVE EFFECT OF THE ATSSSA
The Air Transportation Safety and System Stabilization Act, 49 U.S.C. § 40101 note, sets forth the essential statutory framework for the consideration and treatment of claims arising from the terrorist attacks of September 11, 2001. Enacted following September 11, the Act was aimed at protecting the airline industry from potential economic collapse while simultaneously providing a simplified avenue for recovery by those immediate victims of the attacks who wished to take advantage of that method, and an exclusive federal remedy for all others having a cause of action. See Colaio v. Feinberg, 262 F. Supp. 2d 273 (S.D.N.Y. 2003); see also Hickey, 270 F. Supp. 2d at 362.
By amendments, the protections of the Act were extended to additional parties--of relevance here, the City of New York and the Port Authority of New York and New Jersey. ATSSSA §§ 408(a)(1), (3). The Act, as originally enacted, limited the liabilities of the airline industry defendants to the defendants’ insurance coverages. The liability of the Port Authority in relation to its property interest in the World Trade Center was also limited to the aggregate of its liability insurance. ATSSSA § 408(a)(1). Separately, the liability of the City was limited to the higher of its liability insurance coverage or $350,000,000. ATSSSA § 408(a)(3).
As to plaintiffs, those who sustained injury as a direct result of the attacks, were given a special means of redress, in a specially authorized and appropriated Victim Compensation Fund (“VCF”) or, alternatively, through litigation in the federal courts, specifically the United States District Court for the Southern District of New York. ATSSSA §§ 408(a), 408(b). Other plaintiffs, including those in the lawsuits which are the subject of this Opinion, were also granted rights of action arising from the ATSSSA but, since they incurred their injuries in the days and months following September 11, could not take advantage of the VCF and were limited to suit in the United States District Court for the Southern District of New York.
Plaintiffs argue that granting immunity to the Defendants, pursuant either to state or federal immunity doctrines, would contradict Congressional intent as expressed in the Act. Particularly, Plaintiffs argue, Congress appropriated one billion dollars to the City, enabling the City to establish a Captive Insurance Fund. Consolidated Appropriations Resolution, Pub. L. No. 108-7 (2003). Plaintiffs argue that Congress could not have legislated a $350 million ceiling on the City’s aggregate liability and a $1 billion special litigation authorization without recognizing the City’s exposure to the claims of those who engaged in the debris removal and cleanup work, for any other source of significant exposure is not apparent. This legislative purpose, Plaintiffs argue, preempts pre-existing state and federal law providing immunity to the City and its contractors, as well as to the other Defendants.
A. The Doctrine of Preemption
Determinations as to whether a particular federal law operates to preempt state law are “fundamentally a matter of Congress’ intent.” McNally, 414 F.3d at 371 (citing English v. General Elec. Co., 496 U.S. 72, 78-79, 110 L. Ed. 2d 65 (1990); Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 85 L. Ed. 2d 714 (1985)). The doctrine of preemption, rooted in the Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl. 2, provides that to the extent a state law conflicts with federal law, the contradictory state law is “without effect.” Hickey, 270 F. Supp. 2d at 366. The Supreme Court has recognized two general types of preemption, express and implied.
Congress can expressly preempt state law by explicitly providing for the displacement of state law. See Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985). Even if Congress does not expressly preempt state law, state law may be impliedly preempted if Congress either 1) has legislated in a particular field so pervasively that no room is left for concurrent state legislation, see id.; or 2) has enacted federal laws that conflict with state laws, see Geier v. American Honda Motor Co., 529 U.S. 861, 873-74, 120 S. Ct. 1913, 146 L. Ed. 2d 914 (2000).
Id.
There are “no fixed meanings or shorthand rules to demarcate just where the traditional jurisdiction of state courts and application of state law must be ousted.” Id. at 367. Courts are to adopt a fluid approach to setting the scope of a particular statute’s preemptive effect.
Beginning with the presumption that Congress does not intend to displace state law, especially in traditional areas of state control, ..., courts go on to weigh whether the central motivations behind the federal law favor preemption--in other words, whether allowing state law to govern would undermine federal control or weaken the protections Congress intended to provide.
Id. As a general rule, preemption of areas traditionally subject to state regulation will not be found unless it is the “clear and manifest purpose of Congress.” CSX Transp. Inc. v. Easterwood, 507 U.S. 658, 664, 123 L. Ed. 2d 387 (1993) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 91 L. Ed. 1447 (1947)).
If, however, traditional state law principles contradict the purpose of a federal statute, preemption will be applied. In Burnett v. Grattan, 468 U.S. 42, 82 L. Ed. 2d 36 (1984), the Supreme Court held that application of a restrictive administrative statute of limitations to bar litigation under the Civil Rights Act “ignore[d] the dominant characteristic of civil rights actions: they belong in court.” Id. at 50 (citing McDonald v. West Branch, 466 U.S. 284, 80 L. Ed. 2d 302 (1984)). Thus, the Court approved application of a more liberal statute of limitations. Id. at 55. The Court of Appeals for the Second Circuit reached a similar conclusion regarding the application of restrictive state statutes in a section 1983 action by a former university professor, noting that “[i]t would be anomalous for a federal court to apply a state policy restricting remedies against public officials to a federal statute that is designed to augment remedies against those officials, especially a federal statute that affords remedies for the protection of constitutional rights.” Pauk v. Board of Trustees of City Univ. of New York, 654 F.2d 856, 862 (1981).
B. The Alleged Preemptive Effect of the ATSSSA and the Captive Insurance Fund
The Act expressly provides that those who sustained injury as a result of the September 11 attacks may gain redress from the VCF or, alternatively, seek it in traditional litigation, but only in the federal court for the Southern District of New York. Both manners of relief are, however, limited in several important respects. As an initial matter, eligibility for the VCF is limited to those who suffered physical injury or death as a result of the terrorist-related aircraft crashes and who were “on the planes or at the World Trade Center, the Pentagon, or the crash site at Shanksville, Pennsylvania at the time, or in the immediate aftermath, of September 11, 2001.” Hickey, 270 F. Supp. 2d at 362 (quoting ATSSSA § 405(c)). Further, upon the submission of a claim under the VCF, individuals “waive the right to file a civil action ... in any Federal or State court for damages sustained as a result of” the September 11 attacks. ATSSSA § 405.
To the extent persons who were injured as a result of September 11 chose not to participate in, or were not eligible for, the VCF, section 408 of the Act, as amended in November of 2001, establishes a “federal cause of action” as the “exclusive remedy for damages arising out of” the September 11 attacks. ATSSSA § 408(b)(1). The section further vests the United States District Court for the Southern District of New York “with original and exclusive jurisdiction” over all claims “resulting from or relating to the terrorist-related aircraft crashes[.]” ATSSSA § 408(b)(3). Creation of a federal cause of action, however, did not serve to preclude application of state law. Instead, Congress expressly provided that, in actions brought pursuant to the Act, the “substantive law for decision ... shall be derived from the law ... of the state in which the crash occurred unless such law is inconsistent with or preempted by federal law.” ATSSSA § 408(b)(2).
Section 408(a) operates also to limit the potential liability of defendants likely to be named in actions resulting from or relating to the September 11 attacks (other than the terrorists themselves or those who conspired with, or aided and abetted them). Thus, the liability of any “air carrier, aircraft manufacturer, airport sponsor, or person with a property interest in the World Trade Center” may not exceed “the limits of [their] liability insurance coverage.” ATSSSA § 408(a)(1). The potential liability of the City of New York is also limited. By amendment to the Act, passed at the urging of the City, the Act expressly provides that “[l]iability for all claims ... against the City of New York shall not exceed the greater of the City’s insurance coverage or $350,000,000.” ATSSSA § 408(a)(2). In addition, further to provide financial protection to the City of New York and its Contractors, another Act of Congress, passed one year later, appropriated 1 billion dollars in federal funding to “establish a captive insurance company ... for claims arising from debris removal[.]” Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7 (2003). The Captive Policy insures the City and its Contractors against potential liability, as well as associated costs and expenses, and affords the City and its Contractors fully-funded financial protection against all potential claims. WTC Captive Insurance Company Liability Insurance Policy, § 2.04 (“Defense of Suits and Related Defense Costs”) (the “Captive Insurance Fund”).
C. Discussion
As noted earlier, I begin “with the presumption that Congress does not intend to displace state law[.]” Hickey, 270 F. Supp. 2d at 366 (citing New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 661, 131 L. Ed. 2d 695 (1995)). Preemption will not be found unless it is the “clear and manifest purpose of Congress.” CSX Transp. Inc., 507 U.S. at 664 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 91 L. Ed. 1447 (1947)).
Here, neither the plain language of the statute, nor its purpose, evince a Congressional intent to supplant the application of state law principles. To the contrary, Congress expressly provided that the “substantive law for decision” in any suit relating to the September 11 attacks “shall be derived from the law ... of the state in which the crash occurred,” unless “inconsistent with or preempted by federal law.” ATSSSA § 408(b)(2). Application of such state substantive law is not “inconsistent” with federal law as embodied in the Act. See 7WTC, 2006 WL 62019 at *6-8 (granting immunity to the City of New York pursuant to the New York State Defense Emergency Act as to claims asserted by Consolidated Edison’s insurers for damage resulting from the collapse of Seven World Trade Center). Nothing in the Act or its legislative history suggests that defenses against potential lawsuits are prohibited. It is Plaintiffs’ burden to show that Congress intended to remove reliance on such defenses insofar as they directly contradict Congressional intent, see Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255, 78 L. Ed. 2d 443 (1984), and Plaintiffs are unable to meet such a burden.
The limited purpose of section 408 was to provide an efficient and rational means for the adjudication of claims relating to or resulting from September 11. It was not intended to guarantee compensation to those injured by the September 11 attacks. The possibility that compensation might ultimately be denied to those who declined to, or were ineligible to, participate in the Fund was contemplated by Congress and expressed by Senator John McCain during the Congressional debate: “To ensure that the victims and families of victims who were physically injured or killed on September 11th are compensated even if courts determine that the airlines and any other potential corporate defendants are not liable for the harm ... the [Act] also creates a victims’ compensation fund.” 147 Cong. Rec. S9589091 at S9594 (Sept. 21, 2001 (statement of Sen. McCain); see also Colaio, 262 F. Supp. 2d 273.
Thus, I decline to extend the scope of federal preemption under the Act to preclude application of otherwise available state law immunity defenses. I further decline to bar application of federal immunity doctrines as contradictory to the alleged compensatory purpose of the Act. The preemptive effect of the Act serves to displace, “not the substantive standards governing liability, but only the state-law damages remedies,” McNally, 414 F.3d at 380, in the sense of placing a monetary limit to those remedies. Risks are inherent in the very nature of litigation, even where claims are brought pursuant to express Act of Congress. In re September 11 Litig., Opinion and Order Regulating Testimony at Depositions, 2006 WL 846346, * 10 (S.D.N.Y. March 31, 2006). Although “[i]t would be anomalous for a federal court to apply a state policy restricting remedies,” Pauk, 654 F.2d at 862, to a statute designed to expand remedies, the ATSSSA is not such a statute. Nor is it the role of the federal courts to eliminate entirely the risks inherent to litigation. By enactment of the ATSSSA, Congress intended to create a federal forum for the adjudication of claims arising o