Runnin’ Scared: NYPD Seeks an Air Monitor Crackdown for New Yorkers


A city councilman and the cops don’t want you to have that Geiger counter without their permission
by Chris Thompson

Damn you, Osama bin Laden! Here’s another rotten thing you’ve done to us: After 9/11, untold thousands of New Yorkers bought machines that detect traces of biological, chemical, and radiological weapons. But a lot of these machines didn’t work right, and when they registered false alarms, the police had to spend millions of dollars chasing bad leads and throwing the public into a state of raw panic.

OK, none of that has actually happened. But Richard Falkenrath, the NYPD’s deputy commissioner for counterterrorism, knows that it’s just a matter of time. That’s why he and Mayor Michael Bloomberg have asked the City Council to pass a law requiring anyone who wants to own such detectors to get a permit from the police first. And it’s not just devices to detect weaponized anthrax that they want the power to control, but those that detect everything from industrial pollutants to asbestos in shoddy apartments. Want to test for pollution in low-income neighborhoods with high rates of childhood asthma? Gotta ask the cops for permission. Why? So you “will not lead to excessive false alarms and unwarranted anxiety,” the first draft of the law states.

Last week, Falkenrath made his case for the new law before the City Council’s Public Safety Committee, where Councilman Peter Vallone introduced the bill and chaired the hearing. Dozens of university researchers, public-health professionals, and environmental lawyers sat in the crowd, horrified by the prospect that if this law passes, their work detecting and warning the public about airborne pollutants will become next to impossible. But Falkenrath pressed on, saying that unless the police can determine who gets to look for nasty stuff floating in the air, the city would be paralyzed by fear.

“There are currently no guidelines regulating the private acquisition of biological, chemical, and radiological detectors,” warned Falkenrath, adding that this law was suggested by officials within the Department of Homeland Security. “There are no consistent standards for the type of detectors used, no requirement that they be reported to the police department—or anyone else, for that matter—and no mechanism for coordinating these devices. . . . Our mutual goal is to prevent false alarms . . . by making sure we know where these detectors are located, and that they conform to standards of quality and reliability.”

Vallone nodded his head, duly moved by Falkenrath’s presentation. Nevertheless, he had a few concerns. When the Environmental Protection Agency promised that the air surrounding Ground Zero was safe, Vallone said, independent testers proved that such assurances were utterly false. Would these groups really have to get a permit before they started working? “It’s a good question, and it has come up prior to this hearing,” Falkenrath replied. “What I can assure you is that we will look extremely carefully at this issue of the independent groups, and get the opinion of the other city agencies on how to handle that, and craft an appropriate response.” And if people use these detectors without a permit, Vallone asked, do we really have to put them in jail? Afraid so, Falkenrath answered.

Councilman John Liu was considerably less impressed. Why, he asked, should a community group like Asthma-Free School Zones have to tell anyone, much less the police department, that they’re testing for air pollution? “We have no interest in regulating air-quality sensors around schools,” Falkenrath promised. “That’s not what this is about.”

“But then can’t we just get that in the legislation from the outset, as opposed to putting it in the regulations afterwards?” asked Liu.

That, said Falkenrath, was asking too much. “It becomes a very slippery slope, and it would then be possible for many other entities to sort of drive things through that loophole.”

And Liu was just the start of the critics’ parade. Manhattan Borough President Scott Stringer said the bill aims to fix a problem that doesn’t even exist. “I cannot think of evidence or events in our recent past involving false alarms that would create any urgency for this sweeping legislation,” he said. “If Manhattanites have any anxiety related to this bill, it is the very marked anxiety that residents have about their air quality.”

Dave Newman, an industrial hygienist for the New York Committee for Occupational Safety and Health, claimed that under this law, the West Virginia air-quality experts who tested the air after 9/11 would have been a bunch of criminals. Dave Kotelchuck, deputy director of the New York/New Jersey Education and Research Center, pointed out the absurdity of having police regulate and permit research science. “Think about industrial-hygiene folks who are going from Boston to Atlanta to measure, and have atmospheric detectors,” he said. “They land in LaGuardia and JFK. As soon as they land, because possession is a misdemeanor, they’ve committed a misdemeanor. They’re not going to test in New York City; they’re just travelling through. But possession, which is the way the law has stated it, alone is a misdemeanor—not use. Not attempting to make measurements—just possession. That is just unwarranted.”

After an hour of this, poor Peter Vallone looked shell-shocked. He had planned to fast-track this legislation—in fact, the law was supposed to have been voted on last week—but that was before the critics had heard about it. As the opposition mounted, Vallone pulled the proposed legislation just before the meeting’s end and agreed to give it a second look. “When I was first given a briefing only weeks ago, the potential problems did occur to me,” he said in a later interview. “But the extent of the opposition, on such short notice, was a bit surprising.”

But don’t think Vallone has given up or anything. He and his colleagues will try to accommodate all the concerns when they redraft the bill, he said, but one way or another, the cops are going to have this new power. “No one’s going to be completely happy in the end,” Vallone said, “but I think the police department gave some very impressive testimony on the stand, and also expressed a willingness to listen to concerns.” After all, if you let research scientists and community groups do their jobs, the terrorists will have already won.

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We are writing you with great urgency in opposition to Intro 650, a bill introduced into the New York City Council at the request of the mayor and with the support of the Speaker of the City Council. We believe this bill poses a grave threat to university programs, academic research, and unions, environmental, and community-based organizations that conduct independent chemical, biological and radiological environmental sampling. We ask you to join us in opposing this legislation.

Intro 650 will require permits for the possession or use of any instruments which monitor chemical, biological or radiological contamination. The NYC Police Department has testified that the impetus for the bill came from the Department of Homeland Security. Intro 650 will give NYPD the power to authorize, deny, or delay any workplace or environmental sampling. NYPD has testified that the Department of Homeland Security intends to use this legislation, if enacted, as a model for other cities throughout the country. We believe the bill, if enacted, will restrict, and could prevent altogether, independent environmental monitoring by unions, community organizations, and others, including university programs. We believe this would pose a significant threat to our civil liberties.

The stated purposed of the bill is to “reduce excessive false alarms and unwarranted anxiety.” However, the bill’s proponents have presented no data to support the claim of “excessive false alarms,” nor have they identified the types of alarms that are presumed to be excessive. No evidence has been presented to document “unwarranted anxiety.” It is likely that no such data exist.

An initial hearing on the bill was held January 8. Strong opposition was raised by numerous speakers representing a broad range of groups. At the hearing, Council Member John Liu noted the bill’s potential for restricting the collection of independent environmental data. He said the bill would give NYPD a “blank check” with no restrictions.

Had such legislation been in place on and after 9/11, the independent testing done by unions and community-based organizations could not have been legally conducted and what we now know about the contamination of Lower Manhattan would be limited. This same concern was addressed by other speakers at the hearing.

The bill is being opposed by a wide range of organizations including the American Industrial Hygiene Association, the New York City Central Labor Council, the United Federation of Teachers, Healthy Schools Network, West Harlem Environmental Action, and NYCOSH. We have been told that the leadership of the City Council is committed to passage of this legislation and wants the bill to be enacted by the end of this month.

In solidarity, Joe Shufro, William Henning

Executive Director, NYCOSH Chair, NYCOSH


January 8, 2008 New York City Council Public Safety Committee

This joint testimony is presented on behalf of the New York Committee for Occupational Safety and Health (NYCOSH) and the New York City Central Labor Council (NYCCLC). …

NYCOSH and NYCCLC join other organizations, including members of the public health, environmental, and industrial hygiene communities, in opposing Intro 650. This legislation, if enacted, would undermine efforts to protect the public health by creating substantial and unnecessary impediments to the collection of scientific data in both routine and emergency situations.

Specifically, NYCOSH and NYCCLC oppose Intro 650 for the following reasons:

1. Intro 650 is aimed at fixing a problem that does not exist. The stated purpose of the bill is to reduce “excessive false alarms and unwarranted anxiety.” No data are presented to support the claim of “excessive false alarms,” nor are the types of alarms that are presumed to be excessive defined. No evidence is presented to document “unwarranted anxiety.” It is likely that no such data or evidence exist. Neither press reports nor the scientific literature nor the city’s own web site provides any support for the assertion that “excessive false alarms and unwarranted anxiety” have been or are real-world problems.

2. Intro 650 would make it more difficult for the public, and for government agencies, to obtain environmental sampling data in a timely manner. The inability of government agencies to rapidly deploy air monitoring instruments is well documented. For example, the earliest sampling of workers’ breathing zones at Ground Zero was conducted by the National Hazmat Program of the International Union of Operating Engineers, which came in from West Virginia. OSHA did not begin taking personal samples until September 20. Had Intro 650 been in effect on September 11, 2001, it would have been illegal for technical experts from West Virginia to respond at Ground Zero.

3. Intro 650 would make it more difficult for the public to obtain independent environmental sampling data and to assess the accuracy of government statements. For example, elected officials representing the areas of Manhattan most affected by the September 11th attack, including members of this City Council, employed nationally-recognized experts to conduct indoor sampling of residences adjacent to Ground Zero within days of the attacks. Sampling results indicated dangerously high levels of WTC-derived asbestos in downtown residences. At the time, EPA was proclaiming that the air was safe to breathe and NYCDOH was stating that indoor dust could be cleaned up by residents. Government agencies did not conduct indoor tests in residences until December. Had Intro 650 been in effect on September 11, 2001, it would have been illegal for the City Council and other elected officials to bring in technical experts from outside the city to test downtown residences.

4. Intro 650 would inappropriately and impossibly task NYPD with assessing the capabilities of air monitoring instruments and of the individuals, agencies, and organizations that utilize them. It would put NYPD in the position of determining which employers, unions, landlords, tenants, community-based organizations, and others would be entitled to conduct independent environmental assessments. For example, community-based organizations in Harlem and Chinatown concerned about the incidence of asthma and other respiratory diseases would have to obtain police permits to monitor diesel emissions in the public streets outside bus depots.

5. Intro 650 would immediately make illegal scores of thousands of safety devices already in place in homes, schools, businesses, and public buildings. These devices include carbon monoxide detectors and legally required smoke detectors. NYPD testified earlier today that it may ultimately exclude certain yet to be determined monitoring equipment and activities from the permitting requirements. However, as Councilpersons Liu and Garodnick correctly noted, the current legislation would grant NYPD a “blank check” on rule-making, not subject to further City Council oversight or direction. NYPD testified that its interest is detection of chemical, biological, radiological, and nuclear weaponry agents. However, this bill is not that. It is not a CBRN bill. As currently written, it covers emergency response, industrial, environmental, and academic activities unrelated to CBRN warfare. It would significantly curtail public access to independent environmental data, in line with the post-9/11 Bush agenda. In conclusion, the goal in science is generally to obtain more data, not less. Intro 650 would serve to drastically impede independent collection of and public access to environmental sampling data. There is no danger to public safety or public health from the acquisition of additional data. NYCOSH and NYCCLC urge this Committee and the City Council to reject this bill in its entirety.

Thank you.

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