HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Tuesday, September 13, 2011

9/11 World Trade Center Responders: Cancer Victims and Compensation

The tenth anniversary of the 9/11 tragedies has drawn attention to the government’s response to victims of exposure to pollution during rescue/cleanup operations at the World Trade Center (WTC).  Over the years, Congress created federal compensation and insurance funds as well as nine federally funded programs that attempt to address responder health issues, described neatly in a background memo issued by the office of Representative Carolyn Maloney.  The centerpiece legislation was the James Zadroga 9/11 Health and Compensation Act, providing for health care and compensation for New Yorkers who have been sickened by the dust from WTC attacks. Its price tag was to $4.2 billion.

The challenge is to determine which health problems were caused by activities at the WTC, thus compensable under the Zadroga Act. Respiratory illnesses and other serious diseases were among the suspected problems, with cancer capturing the most recent attention. Considerable outrage and controversy arose in July, when the Department of Health and Human Services (HHS) reviewed existing scientific, peer reviewed studies of WTC exposures, and issued a report that rejected a connection between cancer and exposure to the WTC site, concluding:

“Based on the scientific and medical findings in the peer-reviewed literature reported in this first periodic review of cancer for the WTC Health Program, insufficient evidence exists at this time to propose a rule to add cancer, or a certain type of cancer, to the List of WTC-Related Health Conditions.”

Publicity is rampant concerning the plight of first responders who are suffering without compensation, due to the lack of a proven connection.  A British news article refers to the situation as having "inhumane" rules under which “rescue workers who worked amid the toxic rubble and who have developed cancer are ineligible for help with their medical bills.” Tragic stories have appeared in the New York Times, Huffington Post, and on MSNBC among others. Cancer sufferers eagerly awaited studies that would contradict the HHS conclusions.

This month, their patience was rewarded by the British Journal Lancet, which published study findings that gave victims some hope. It concluded that firefighters and rescue workers exposed to the dust circulating after the World Trade Center disaster have a 19% increase cancer risk. The cause was likely the exposure to aerosolized dust — an amalgam of pulverized cement, glass fibers, asbestos, lead, polycyclic aromatic hydrocarbons, polychlorinated biphenyls, and poly chlorinated furans and dioxins produced as combustion byproducts from the collapsed and burning buildings. They were also exposed to toxic fumes, initially from burning jet fuel and from diesel fuel from heavy equipment. The study was also described in an International Business Times article. The study was widely reported over the anniversary weekend. Members of the New York congressional delegation announced last week that they are already petitioning the 9/11 Health Program Administrator Dr. John Howard to add cancers to the benefits coverage under the Zadroga bill, reported here.

Last week, the Obama Administration signaled it was also taking the concerns seriously, announcing the creation of a new World Trade Center Health Program scientific review panel. Its charge is to “review scientific and medical evidence and to make recommendations to the WTC Health Program administrator on eligibility criteria and on WTC-related health conditions.” Made up mostly of medical experts, there is one lawyer on the panel; Susan Sidel, J.D., “resident of New York City and volunteer WTC responder” listed as one of two “Representatives of Certified-Eligible Survivors.”  Since the Lancet study indicated victims exposed to WTC dust only have an increased likelihood of cancer, it still seems an incredible challenge to identify which cancer cases that were and were not caused by the actions.   

Further complicating the issues are allegations that the previous Administration may have downplayed on-site risks, leading to more exposure. A UK Guardian article reported that documents obtained by the New York Committee for Occupational Safety and Health (NYCOSH), a health union, raised concerns that the Bush Administration downplayed the health dangers at Ground Zero. The documents, obtained under the Freedom of Information Act, indicated that the EPA inspector general admitted that its public communications about the safety of Ground Zero was altered by the White House Council on Environmental Quality (CEQ), a branch of the Executive Office of the President, when CEQ had them remove cautionary language about air safety downtown.

“In one instance, a warning that people should not report to work on a busy thoroughfare in the financial district – Water Street – was rewritten and workers instead were urged to return to their offices as soon as the financial district opened on 17 September.

“In another, federal officials declared that testing showed the area was safe when sampling of the air and dust – which ultimately found very high levels of toxic chemicals – had barely begun.” 


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