Tall Buildings, Skinny Stairs?

By Andrea Galyean

New York, May 2--

How wide are you?

I just the measured the widest part of me (my shoulders) and I’m 16 inches across. Add a couple inches on each side for normal movement, and I need at least 20 inches of width to walk down an office hallway or stairwell. But I’m a good bit smaller than the average Manhattan office worker. In fact, a salesman at the Wall Street location of the popular Men’s Wearhouse stores reports that the shoulders on the most commonly sold suit size in his shop (a 48) are 23 inches across when filled out by an actual person.

So if this suit-wearing average guy and I wanted to walk down a stairwell at the same time – if there was a fire in a high-rise, for instance, and we were trying to get out – we’d need 47 stairwell inches. Two people closer to his size would need 54 inches. But what if, instead of people filing downstairs side-by-side, there were also firefighters coming up? Firefighters wear big suits and carry a lot of gear, so they take up more room. How wide would that stairwell need to be?

That question is at the heart of a dispute about New York City building codes, which are being revised this year. Real estate development groups say the old code is wide enough, but some building and fire safety experts disagree.

The New York standards in place since 1938 require that most stairwells in commercial high-rises be 44 inches wide. That gives two lanes of traffic using 22 inches each. But those requirements are based on assumptions about the size and speed of occupants and are designed for partial evacuations – when only a few floors of a building are affected - and they have rarely been tested at higher capacities.

The largest building evacuation in New York City was when 15,400 people escaped from the World Trade Center (WTC) towers after the terrorist attacks on September 11, 2001. That event demonstrated how the assumptions of the building codes translated into real-life.

John Labriola, a WTC survivor who used the stairs to escape from the 71st floor of the north tower, contributed his recollections of that day to the Smithsonian Museum. “We walked down two by two,” Labriola said in his statement. “Whenever necessary we would press ourselves into a single file line to let [injured] people get by… Around the 35th floor we started meeting a steady stream of firefighters walking up and had to press into single file again.”

Labriola also took photographs during the evacuation. One of the most famous, taken within the stairwell, shows civilians flattened against the wall as firefighters pass. The stairwells in the north tower were 44 inches wide.

Glenn Corbett, a fire sciences professor at Manhattan’s John Jay College of Criminal Justice and a consultant to the New York Department of Buildings committee that proposed post-WTC changes to the building code, thought the message was clear. "Out of all the issues, one of the no-brainers was the issue of stairway width," said Corbett. He refers to Labriola’s images as evidence; "If you look at those photos, with firefighters coming up and civilians coming down, the people have to turn sideways."

National Institute for Standards and Technology (NIST) analyzed the WTC collapse and made 30 recommendations about how high-rise buildings might be stronger, safer, and easier to get out of. NIST investigators cited Labriola’s photographs and testimony from other survivors in advising that high-rise buildings use wider stairwells. They found that WTC evacuees moved twice as slowly as had been estimated and concluded that if the towers, which were less than half full on September 11, had been fully occupied, 14,000 people would have died. “To achieve a significantly faster total evacuation at full capacity would have required increases in egress capacity – the number and width of exits and stairways,” said lead NIST investigator Dr. S. Shyam Sunder in 2005.

That was not the first such proposal. Jake Pauls, a fire safety specialist from Silver Springs, Maryland, has conducted years of research on building evacuations. He concluded in 2005 that the 44-inch minimum “was flawed, and known to be flawed a few decades ago.” Indeed, a report sponsored by NIST in 1995 said that the assumptions about how long it takes people to get out of a skyscraper were wrong. That report came from another high-profile evacuation: the escape from the WTC after it was bombed in 1993. And in 2004, a former WTC director told the 9/11 Commission that the stairwells in the towers should have been wider.

Based on his studies, Pauls proposed a new standard minimum of 56 inches. As Corbett explained, "56 inches gives you the ability for counterflow, the ability for people to pass. It's an obvious solution. Any four-year-old can figure that out."

The New York Buildings Department agreed – for a while. As late as May 2007, proposed code revisions included wider stairwells, but the version due to go into effect this year returned to the old standard. What happened? This is where the numbers change from inches and people to square footage and cash.

In New York, especially in landlocked Manhattan, the size of a building is limited by the size of the lot – and those lots are expensive. So developers try to maximize the square footage available for rent.

When the Buildings Department was drafting the new building code, it “requested NIST’s input and expertise in five specific areas,” including stair widths, according to a 2005 press release. But the Building Owners and Managers Association (BOMA), whose members own 80 percent of North American office space, “blocked every attempt” to implement NIST’s suggestion, according to Corbett. An advocacy memo from BOMA to its members asked them to work “at the state and local level to ensure that the NIST recommendations are not used as justification for introducing unnecessary new requirements in state and local building codes.”

Representatives of BOMA and the Real Estate Board of New York volunteered on the city committee to decide egress requirements for the new building code, where they successfully fought to keep the old width rather than give up floor space for stairs.

Woody Pascal, chief of staff to Councilman Erik Martin Dilan, who chairs the City Council’s Housing and Buildings Committee, recalls the debate. “There was an issue with the stairs, yes. Basically, if the stairs were wider, the rooms would be smaller.”

The Buildings Department notes that the codes specify a minimum only and says developers can always build wider stairs, as the Durst Organization is doing with the new Bank of America building in Midtown. But few are willing to forgo potential profits in the current market, where luxury offices on Wall Street can rent for several hundred thousand dollars per square foot per year.

Frederic Schwarz, a Manhattan-based architect, has worked on a number of high-rise projects in recent years. He said developers “want to do the right things, but only to a point." He was a leader in the early efforts to redesign the WTC site and thinks a lot about building safety. But he doesn’t even try to design wider stairs for commercial clients. “Forget it,” he said, “That’s not even a conversation. You’re fighting for every inch.”

And so, the 2008 New York City Building Codes will go into effect on July 1. The required minimum width for exit stairwells in high-rises will be: 44 inches.

Andrea Galyean is a graduate journalism student at NYU. She holds a B.A. in theatre from the University of Maine and has a complicated job history. She was, most recently, the Outreach Manager for Phoenix Public Art. Her work has appeared in the Arizona Republic and Phoenix Arts. She takes the stairs.

Safety: "Forced Down People's Throats"

By Elizabeth Giegerich

New York, May 2--When a plane hit One World Trade Center on Sept. 11, 2001, Greg Trevor was staring out the window at the Statue of Liberty. The impact of the airliner that crashed 20 floors above him almost knocked him to the floor and he felt the building swaying.

Because Trevor was the senior information officer for Port Authority, news stations immediately started to call him for comments about the incident. Trevor hung up on the reporters. He had a job to do: he was thoroughly trained to deal with all emergency situations and needed to put his preparation techniques into action.

“Within a few minutes, we gathered the staff, threw files and notepads into our bags, and prepared to evacuate the floor. It began to fill with grainy smoke,” Trevor wrote in his account of the tragic event later that afternoon.

Everyone on Trevor’s floor, the 68th, got out of the World Trade Center alive that day. “I know people that were on the 65th, 72nd, 73rd, all different floors where they had to get some people stuck in elevators on their floor out first before they started to evacuate,” Trevor remembered during an interview seven years later.

“People in wheel chairs were carried down and people who were visually impaired made it out too. A lot of people knew what they needed to do and they got out safely.”

The people who “knew what they needed to do,” were those who had been trained or were led by people like Trevor who had regularly participated in training exercises, classes, and emergency drills.

One month prior to 9/11 Trevor had participated in a table top exercise – a hypothetical situation was given to him and other company appointed fire marshals on his floor, and they were to talk through each step required to ensure every employee’s safety and well being. That exercise had nothing to do with a terrorist attack, but past table top exercises he’d participated in contributed to saving Trevor and thousands of others the day the planes destroyed the twin towers.

As dull as “emergency preparedness” may sound, and as irksome a fire drill can be on a typical work day, people who are well prepared for emergencies have a better chance of making it out alive on tragic days like 9/11, or out of any unexpected dangerous situation.

Sadly, there were thousands who lost their lives on 9/11, whether they were well-trained or not, but New York City realized that regular citizens were well-trained heroes that day. Many survived because they or their leaders were prepared for something as unexpected and catastrophic as a fatal terrorist attack.

In 2004, in response to 9/11, New York State enacted a law called local law 26 (L.L.26) which requires all high rise buildings to institute Emergency Action Plans (EAPs). EAPs are detailed response plans for any type of emergency besides a fire (fire safety plans have been in effect for decades). Terrorist attacks, chemical spills, threats to air quality, and natural disasters, are a few examples of emergencies covered under L.L.26.

Of the approximately 1,800 buildings in the city that now require EAPs, about 900 have filed their plans with the New York Fire Department, but only about 370 have been accepted by the department, according to an official from the bureau of fire prevention who wished to remain anonymous.

The reasons for a rather low number of accepted EAPs vary; law makers and building owners hope that EAPs will never have to be used, so the time and money spent on their implementations is hard for some buildings to commit to. EAPs are inherently difficult to create so building owners and managers often turn to expensive outside consultants to help with plans, which raises costs. The fire official from the bureau of fire prevention said that EAPs created by outside consultants are often the best submitted to FDNY. However, the fire department has rejected many, some created by private consultants, and some created by building managers themselves. Buildings that require, but have failed to create an EAP, will eventually be issued a violation and probably be fined “a couple hundred dollars or so,” said the fire official. But the cost of creating an EAP is much higher.

“There was a huge paradigm shift after 9/11,” said Ira Tenebaum, coordinator of the public private initiative at the New York Office of Emergency Management. “It changed the way anyone looked at emergency management (and they realized) staff and personnel was more important than computers and information.”

Some building owners and managers seem to have come to this realization, but most have not; most just comply with the law and do not take any further precautions to ensure their tenants safety, according to experts in the emergency preparedness field.

“No one wants to make an investment in safety, they only want to do the minimum safety requirements, because it is not something that they make a priority of unfortunately,” said Evan Lipstein, president of Hyline Safety, an emergency preparedness consultant company. “EAPs are forced down people’s throats,” said Lipstein. “Otherwise they don’t give a rat’s ass about safety, they just care about putting money in their pockets.”

Bob Pecora of Quality Fire, an emergency consultant company, said most of the buildings that use Quality “stick to the minimum requirements, because of the cost factor.” But he added that some of the bigger properties, like Boston Properties, have asked for additional training. “I guess they are concerned for safety. They have a lot of large properties in NYC and they asked for extra seminars, extra drills.”

Depending on a building’s size, the number of people who are involved with training varies. EAP and fire safety laws require each floor to have a fire marshal who communicates with the fire (and now EAP) director, who is most familiar with the building, and often also the security guard.

The safety directors receive 20 hours of training, and three tests; two written tests and one “on-site” test. During the on-site test, the fire department goes to a site and tests the fire safety director by creating an emergency scenario in which the director will need to prove his or her knowledge of the building and the correct steps that will need to be taken to ensure the tenants’ safety. Their job is critical: They are the liaison between the fire department and the people in the building.

“I am responsible for any alarm activations, plus I’m familiar with the building, first responders are not,” said Ray Rosario, a fire safety director who has been in the business for 27 years. “I know where the stairwells are and what kind of facilities we have, how to use elevators in fire recall, how to evacuate handicapped people. But people do not take fire drills seriously,” he said. “It’s frustrating because we will have a drill and they don’t want to get up and do it.”

Fire fighter Joe Cunningham leads a fire safety director certification course twice a week for Hyline to teach future directors everything they need to know to pass the tests and discuss how best to deal with tenants who are reluctant to take orders. On one recent Thursday night his students patiently sat through a four hour class, occasionally murmuring complaints about how people fail to perform their daily duties as fire marshals, like signing in at the front desk everyday.

Despite their complaints about others who do not take safety seriously, the class of mostly building personnel were quick to proclaim how importantly they view their ability to deal with emergencies, and general safety.

“This ain’t no joke,” said Ernesto Baez, 44. “This is people’s lives.”


Elizabeth Giegerich, a graduate student at New York University, focuses on metro reporting, and has covered political, environmental and community issues. An intern at the New York Daily News, she’s also written for Voice of America and ACORN’s Social Policy Magazine.

Public Place: High Rise or High Risk?

Photographs by David Giambusso. Music by John Delore.

Gowanus development promises affordable housing, but at what cost to public health?

By David Giambusso

Brooklyn, NY, May2--On the morning shuttle from LaGuardia to Dulles, Buddy Scotto suddenly found himself in a cold sweat. “My father was right--I never should have gotten involved in this stuff,” he thought. Sitting next to him was the new pastor at St. Mary’s on Court Street and he had just put the fear of God into his companion.

“Scotto, if you’ve got me on a wild goose chase, the whole neighborhood’s gonna hear about it,” said the young priest. Scotto was convinced now that it was all a hoax: the call from the Vice President, the meeting at the White House, and the money for the sewage plant.

“Between the gate of the White House and getting inside the Oval Office, I honestly don’t remember a thing,” said Scotto. By the time he was on the shuttle back to New York though, he had a $458 million guarantee to build the Red Hook Sewage Treatment Plant. “All I had to do was go to a place called Kansas City, Missouri and vote for Gerald Ford,” Scotto said.

For the first time in 200 years, the Gowanus Canal was going to start getting cleaned up. Since then, Scotto has spent the better part of his life making deals and cajoling politicians to dredge the Gowanus and make it livable. As he approaches his 80th birthday, his dream seems to be on the verge of fruition. Now his greatest obstacle lies 120 feet below ground.

The Gowanus Canal is perhaps one of the most polluted waterways in the United States. From the onset of the industrial revolution it has fallen victim to the most damaging and pervasive ecological abuses of the modern age. Independent scientific studies estimate that in certain sites, such as the soon-to-be-developed Public Place, carcinogenic toxins are embedded deep into the soil and groundwater, some plumes extending 100 feet below ground.

While most stakeholders agree there must be remediation and a drive to refashion the canal, there is deep disagreement about how that remediation, or cleanup is executed. The state and city, in partnership with local developers, plan to have housing, commercial space, and park land ready for habitation within three to four years. Others argue that such haste will have grave consequences.

The Politics of Pollution

Scotto was a lifelong Democrat. In the late sixties he helped found the Independent Neighborhood Democrats in Carroll Gardens. He got involved to help the neighborhood, but soon found himself getting too embroiled in local politics. His friends were pushing him to run for Congress. His father warned him not to get involved and he thought he could put a stop to it by registering as a Republican. When he told the boys at IND they were indignant. “You’re staying in this club even if you are a goddamn Republican!” Scotto recalls them saying.

While Scotto dodged the bullet of a Congressional run, soon enough the local Republicans started coming around and asking him to be a delegate at the Republican National Convention in 1976. They convinced him to run on the promise that his alternate could go if he was elected. Sure enough, he was voted in by a healthy margin. As planned, he told his alternate to head to Kansas City and washed his hands of the whole affair.

The phone rang one day and an operator on the other end said, “Salvatore Scotto, This is the White House. I have the Vice President for you.” Scotto was taken aback but tried to compose himself. Nelson Rockefeller was asking why Scotto wasn’t giving his full-throated support to President Ford. The whole New York delegation was rumored to be supporting Ronald Reagan and even though Rockefeller wasn’t running, it was an embarrassment for the former New York governor.

Scotto was close to admitting that he wasn’t really a Republican when he recognized his chance. He began reciting a laundry list of problems facing his neighborhood. Chief among them were the putrid conditions at the Gowanus Canal.

For over a century the Gowanus has acted as an industrial and residential sewer, suffering the runoff of gas plants, tanneries, machine shops, and factories as well as 14 sewage outlets. The waterway, which connects Upper New York Bay to the neighborhoods of Red Hook, South Brooklyn, and Park Slope, runs along a flood basin of toxicity. Several days after his meeting at the White House, Scotto would return with funding to start the Red Hook Sewage Treatment plant.

A year later, Scotto secured several million more to re-activate the flushing tunnel in the Gowanus after it had been shut down by area manufacturers who found it inconvenient for barge transportation. As part of that deal, he had won over a half a million in seed money for the Gowanus Canal Community Development Corporation (GCCDC), a group of local interests dedicated to cleaning up the canal, developing affordable housing, and ridding the basin of the toxic polluters responsible for decades of pollution.

With plans for affordable housing, commercial units, and green spaces currently backed by the city, and with remediation underway at sites all along the canal, it would seem Scotto’s lifelong dream is finally coming true. Yet to some in the neighborhoods and in the scientific community here, there is a dark underbelly to this so-called progress.

While it has been thirty years since cleanup began on the Gowanus, many feel it has been largely insufficient and in order to make the area safe again, it will take a much bigger commitment on the part of the city and state. In the meantime, some say the consequences of building over this deeply embedded toxicity may be dire to current and future residents.

Trouble Below

“The level of contamination at Public Place Site seems very extensive,” said Patricia Culligan, professor of Civil Engineering at Columbia University and co-author of “Eco-Gowanus: Urban Remediation by Design.” The book, a project of professors and graduate students at Columbia University was put together with the help of community members such as Friends and Residents of Greater Gowanus (FROGG) and Brooklyn Community Board Six.

Public Place, an 11 acre, state-owned parcel was formerly the site of a manufactured gas plant or MGP. It was seized by the state after being condemned for toxicity and is now part of the Brownfield Cleanup Program, a state initiative enacted in 2003 to make contaminated areas more viable for redevelopment.

The program offers tax breaks to development companies that are willing to take on the cost of remediation and build new housing on lands once thought to be uninhabitable. State taxpayers essentially foot the bill for development discounts in exchange for the promise of safe remediation.

The state has turned Public Place over to the Hudson Companies in partnership with Scotto’s GCCDC who recently won the bid to develop 774 units of mixed-income housing, commercial space, and community-group space on the site.

Unlike other brownfields, the cost of cleanup is being incurred largely by National Grid, a private international energy company that recently purchased Keyspan. Keyspan is the inheritor of the Brooklyn Union Gas Company, who owned the original MGP and is responsible for much of the site’s toxicity. According to a Volunteer Agreement signed by the New York State Department of Environmental Conservation and Keyspan, once Keyspan has met certain cleanup obligations on the site, it is free from any liability for future incidents that may arise due to contamination.

According to Marlene Donnelly, a representative of FROGG, Hudson Companies will still receive nearly 25 percent of its development costs back in tax rebates, despite not spending any money on remediation. Hudson Companies representative Alan Bell was recently quoted in the Brooklyn Paper saying, “We tend to shy away from sites that have been contaminated in some severe way” but adding that “Public Place has a long history and the city is really committed to getting this cleaned up.”

Community members and scientists close to the project are questioning the level of that commitment. Ludger Balan heads the Urban Divers Estuary Conservancy, a group that provides conservation support, environmental stewardship and public environmental education programs on the Gowanus Canal.

According to Balan, the extent of cleanup currently proposed, falls far short of what is necessary for public health. “Any development plan that does not consider a clean-up of the Gowanus Canal first is a ploy and marketing scheme driven by a city highly dependent on real estate sales,” says Balan. He and other scientists maintain that the Gowanus needs to be completely dredged and the surrounding wetlands restored before anyone can conceive of living along the canal.

The city and state have said the site will be livable in four to six years, but remediation experts don’t see how that is possible. According to data provided by the Urban Divers, there are more than 12 points where raw, untreated sewage is discharged into the Canal after every rainfall, translating into millions of gallons of combined sewage overflow or CSO. This contributes to high levels of pathogens--disease-causing bacteria--in the Gowanus Canal. Says Balan, “The entire uplands of the Gowanus Canal is severely contaminated. Dilapidated bulkheads throughout the Gowanus Canal continuously contribute to the migration of dioxins to and from land and water and vice versa.”

These assertions are consistent with the findings of Culligan and her team, who have studied the toxicity of MGP sites. They estimate that chemical deposits extend roughly 120 feet beneath the surface and could seep out into the canal as well as escape in plumes of noxious vapors. The nature of these deposits varies as toxins from other sites have seeped into the groundwater as well.

According to a recent study by the U.S. Army Corps of Engineers, some of the more dangerous elements at Public Place site are Benzene, Xylene (BTEX), and Polycyclic Aromatic Hydrocarbons (PAH’s) some of which are known to cause lung, stomach, and skin cancer as well as leukemia. Another older survey found these elements present in the groundwater at Public Place at levels thousands of times higher than the Environmental Protection Agency has deemed safe for drinking water.

While none of the groundwater at Gowanus will be used for drinking, there are other ways in which these toxins can cause harm. “There has to be a pathway that allows you to come into contact with the contamination, and you can inhale airborne vapors so that’s one pathway.” Another pathway is skin contact should the elements appear in the park spaces, basement floods, or the canal itself. According to the Columbia study, “Any dose of Benzene can lead to illness.”

As Balan points out, exposure to these elements is not what most people likely bargain for in buying or renting a new home. “Would you want barges and trucks carting stinky and heavily contaminated sediment passing beneath your million dollar condo's window and front door?” asks Balan, saying also, “As a consequence, average citizens rich and poor [are] heavily and consistently lured to pay highest value to live on contaminated land, contaminated water and bad air quality, on a high risk flood zone waterfront. A small minority of developers get rich and thousands of families are left to hold a dirty bag, with a high mortgage and immense debts.”

Cleanup or ‘remediation’ of the site would involve decades of constant soil and water cleansing according to “Eco Gowanus”, the type that is not often politically or financially feasible, especially in a faltering economy. “Historically the remediation of these brownfield sites has not been as thorough as the remediation that we’re proposing here,” Culligan says.

The State’s Response

Yet plans to cleanup Public Place and build residential and commercial housing proceed unabated. Gardiner Cross, an engineer with the New York State Department of Environmental Conservation told Community Board 6 in January that, “It would be impossible to dig out the contaminants in their entirety,” but that “The cleanup will be sufficient to support virtually any development.”

Amen Omorugbe is a project manager for the New York State Department of Environmental Conservation (DEC), and is currently overseeing cleanup at the Public Place site. While National Grid is saddled with all of the cleanup responsibilities, the work is carried out by private contractors such as GEI Consultants, who are paid by National Grid and overseen by DEC.

According to studies conducted by the DEC, the contamination at Public Place is consistent with that of other MGP sites in that there are high levels of BTEX and PAH’s as mentioned in “Eco-Gowanus”.

Omorugbe concedes that these contaminants are well below grade (or surface level), some as deep as 125 ft. “We recognize that you can’t treat that,” says Omorugbe. Instead, current plans call for removing roughly ten feet of topsoil, shipping it out on trucks to sites out of state where it will be treated. New soil will be carted in and laid over a barrier that is designed to prevent contaminants from seeping up into the new dirt. A 70 ft barrier will also be vertically introduced around the site barriers in an attempt to stop surrounding contaminants from seeping through.

Omorugbe was uncertain where the soil will be shipped, but believes it will be sent to processing plants in New Jersey or Pennsylvania. He was also unable to provide details of the exact decontamination process for the soil or the trucks that will be transporting it, raising questions of the public health risks to the communities where the toxic fill will be dumped.

This is similar to a “cap and pave” strategy used just a few feet down the canal where a new Lowe’s mega-store was built. Culligan and others feel this method of remediation limits the use of the land.

“The cap and pave strategy is basically turning brownfields into car parking lots. It was locking the contamination in,” says Culligan. The method also calls for constant monitoring of the site or evidence of leaking toxins. Culligan worried that this was not occurring, “We were somewhat concerned when we spoke to the stake holders that they weren’t aware of what monitoring was going on at that site.”

The concern of scientists and engineers not on the state payroll is that the underground toxins are far too volatile to be simply covered up with a layer of concrete. Cleansing 10 feet of soil does little to address the deep pools of BTEX, Coal Tar and sludge, that have seeped into the pools of ground water over a hundred feet below.

Culligan and the team at Columbia propose a permanent revolution of sorts in the way the Gowanus Canal is being treated. "Eco-Gowanus" proposes several bold ideas for addressing the contamination, all of them centered around long term remediation. While residential housing and cultural areas remain part of the drive, the Columbia team would also like to see instituted a new industry of decontamination, renewal, and education.

"The message that we’re trying to give is that the land has greater potential if we spend more time remediating it," said Culligan, "The remediation itself uncovers an urban archeology."

What The Future Holds

As illustrated in “Eco-Gowanus,” these toxins form plumes or pools that are well below the surface of the site as well as the bottom of the canal. If un-addressed they will continually threaten to escape into the water itself, the surrounding soil or into the air in the form of noxious clouds.

Moreover, even if Public Place was fully cleansed, it would still not address the surrounding sites that are equally volatile. “I think what the community deserves is a full understanding of the contamination that exists not just at this site but at neighboring sites,” said Culligan, “Just cleaning up site by site makes no sense--from an engineering perspective or an economic perspective--because the contamination doesn’t care about site boundaries.”

Community Board meetings are marked with discord. Many stakeholders as well as area politicians find themselves conflicted over the benefits of Gowanus development. Scotto and others in the GCCDC have been fighting for a renewed interest in the Gowanus for decades and see this as a golden opportunity. Others such as Community Board 6 members, FROGG, and The Urban Divers are deeply reticent. While the current cleanup of Public Place is the responsibility of National Grid, once the minimal requirements of the DEC are met, National Grid has no further liability. Future lawsuits will be paid out by New York State taxpayers.

Balan, in particular, foresees ominous consequences and said, “Until solutions for remediation of these issues take a serious lead in the dialogue of developing the Gowanus Canal, I fear the drive of the real estate interest will lead us to see another Love Canal. It appears that this is currently in the making.”

David Giambusso is a master's candidate in NYU's Reporting the Nation program and has worked as a freelance journalist for several years, covering local news in New York City and Westchester. He currently splits his time between journalism and music, performing and recording with the rock and roll sensation, Ann Courtney & The Late Bloomers. He would like to thank Andrew Garib for his extraordinary intellect, without which none of this would be possible.

Over and Out

By Molly Stark Dean

New York, May 2 - On September 11, 2001, 343 firefighters and paramedics were killed in the World Trade Center disaster. Innovation since the terrorist attack has helped firefighters advance their techniques. Yet somehow this new technology is not always making it to the Fire Department of New York City (FDNY).

The FDNY’s radios have not changed since September 11. “Firefighter radios still are not able to transmit messages in high-rise buildings, subways, and tunnels,” retired FDNY Deputy Chief Vincent Dunn wrote in his report titled, Three Years Later: What has Changed Since 9/11. “Battalion chiefs may carry portable booster radios (each weighing 22 pounds) that enhance communications between the fire ground commanders and firefighters’ portable radios,” Dunn wrote, “This so-called ‘quick fix’ is nowhere near complying with the recommendation of the McKinsey and Co. consulting report.”

The McKinsey report, "Increasing FDNY’s Preparedness," detailed New York City building owners’ responsibility by recommending that they “install and maintain permanent equipment (an in-building repeater) that picks up and amplifies walkie-talkie signals.”

Retired FDNY Deputy Chief Jim Riches recalls his experience with Motorola radios on September 11, 2001. “Motorola radios were ineffective on 9/11,” Riches said, “and many firefighters in the north tower never heard the call to evacuate after the south tower had collapsed. They had two evacuation calls one full hour and one half hour before the north tower collapsed.” Newly retired Riches was a firefighter for 30 years.

Motorola company officials stood by their radios and blamed the problem on the overloaded communications network on September 11, 2001. “If you have 400 or 500 people trying to talk at once, it’s a wonder anyone heard the transmissions,” said John McFadden, a company spokesman.

In March 2001, Motorola sold FDNY radios with a no bid contract. “Motorola is a very sore subject,” NYPD firefighter William G. Dennis said, “I remember the day the FDNY gave us the new Motorola radios. We were never trained on them.” Dennis went on to say that with the FDNY’s old radios, “as soon as you pushed the button your transmission would start immediately. These new radios had some sort of repeater in them so you had to wait two seconds before you could transmit. Messages were being cut short.” Dennis’ friend, firefighter Luke Healy, became lost in the basement of a house fire in Richmond Hill Queens. This was the reason why the radios were taken out of service after just one day. “He gave a mayday and not one of the units in the fire building heard it,” Dennis said, “Yet units responding from a mile away heard it on their radios. They issued the new radios to us without field testing them.”

Moreover, “Motorola got this as a no bid contract,” Dennis said. This means that there was no competition for Motorola’s agreement with the FDNY. “The then fire commissioner Thomas Von Essen was given a loan by Motorola in excess of $60,000,” Dennis said.

“Motorola and Commissioner Tom Von Essen of the FDNY made a critical mistake and cost many firefighters their lives at the World Trade Center,” FDNY firefighter Steven Mormino said, “The new radios was released to the field units without being tested and failed. Many Firefighters who were killed at the World Trade Center never heard the order to withdraw due to a lack of repeaters. This was known before the radios were issued but were pushed into service.” Mormino has been a career FDNY firefighter for 20 years.

FDNY firefighter Vincent Anzelone is baffled by what he feels is Motorola’s incompetence. “They do try to innovate for us,” Anzelone said, “but it is hard to believe we can have cell phones and GPS systems with pinpoint accuracy and clarity and all we get is static.” Anzelone will retire this year due to respiratory illness from 9/11. By January 2002, 300 firefighters went on leave for repertory problems. From January 2001 to July 2001, there were 274 FDNY retirements; compared to 661 FDNY retirements from January 2002 to July 2002.

Motorola’s digital radios failed within one week of operation. The 20-year-old radios were then redistributed to the firefighters which were used on September 11 and failed the fire fighters. “The city of New York and Motorola have had a very friendly and questionable relationship,” Riches said, “No contract, no field test and lies that other cities, Boston and Chicago, had ordered them and used them.”

Motorola’s relationship with the New York City government angers some firefighters. Firefighter Anzelone said that when it comes to the New York City government, “it is all about cost. The government cares nothing about human life.”

Retired FDNY firefighter John T. Vigiano blames the government over the company. “Remember, the city always set the standard and always went with the low bid,” Vigiano said, “I am sure if the city paid more, they would have gotten a better radio.”

Retired firefighter Nicholas C. Gaudiosi said the “government can provide the funds to research new technology and purchase equipment. Firefighters should decide what is necessary to do the job.” Gaudiosi is Vice President Director of Life Safety at Lehman Brothers global investment bank and former FDNY firefighter who retired in 2003 as Captain of Ladder 7.

The government “sometimes red tape at city level will lead to bad purchases,” Riches said.

While the issue of radios has continued to simmer among firefighters, other innovations have been accomplished. After September 11, 2001, there have been advances in firefighter safety technology include. Personal safety harnesses and communications units have advanced since 9/11, according to Anzelone. For second alarm fires or more, according to Anzelone, require better radios to hear fellow firefighters and a television to see inside the building. Safety Director Gaudiosi said that since 9/11 there has been “more accountability” and “a better plan of action to reduce the number of men directly involved, moving the command outside the immediate impact area.”

High-rise fires have their own challenges that must be met with new tools to conquer them. “High-rise fires are very hot and difficult fires,” Riches said, “Water is a necessity, blankets, thermal, over windows to prevent wind driven fire.” Riches also stressed the need for “radios to communicate any pertinent information” and “fans to pressurize stairs.”

“High rise fires have been around for years, and the FDNY has been battling them the entire time, usually with success,” Vigiano, “The entire world is nearly plastic and in an office building is nearly everything has a plastic base. Polymers break down and melt, giving off noxious fumes when at a certain temperature ignite into a fire ball.” Vigiano was a firefighter for 36 years.

Lehman Brothers Director of Life Safety Gaudiosi said other tools needed in a high-rise fire are thermal imaging, cameras, search ropes, Global Positioning Systems (GPS), personal removal device, and radios with a repeater system, SCBA, and rabbit tool. Anzelone also outlined the need for quality radios as well as “knowledge of the building, and working standpipes.”

Firefighter Mormino emphasizes the importance of “larger SCBA breathing bottles, improved radio communications, thermal imaging cameras, Haz Mat suits, decontamination trailersRadio repeaters handi talkie recorders” for FDNY firefighters.

“Firefighters adjust to anything,” Gaudiosi said.

Riches agrees with Gaudiosi. “Firefighters are more than willing to adapt to any new technology.”Not all firefighters believe that the transition is that effortless. FDNY firefighter Anzelone said the transition to new technology is going “slowly. We like to test things out before we go in to battle with them.”

“From my own experience and listening to firefighters,” retired firefighter Vigiano said, “I do not think this generation is adequately adjusting to some of the innovations that were introduced prior to 9/11.”

FDNY firefighter Mormino said that firefighters adapt to new technology “very well as long as there is sufficient training.”

Some firefighters do not see any progress being made. “Fires in high rise buildings are dangerous,” retired Chief Riches said, “Studies are being conducted to help in fire safety in these buildings, but we are still equally in danger before 9/11 and thereafter.”

Anzelone said there are no positive changes and the “radios still suck.”

Radios are one of the most important devices a firefighter carries with him. Retired Captain Gaudiosi said radios are “Everything, communication of changing situation so that firefighters can adjust strategy and tactics, request for help, etcetera.”

“Radio communication is critical,” Riches concurs with Gaudiosi, “Evacuation orders must be heard, changing situations, location of civilians, wind changes, and ventilation, both planned and unplanned. An order which is not heard can be fatal.”

“Radios are one of the best tools a firefighter has,” Dennis said. Dennis was a firefighter who retired five days before September 11, 2001. “Communication is a major factor in fighting fires,” Dennis said, “I can not tell you how many times over my 20-year career that I have been told to evacuate a building. When you are given an order, you follow it. That’s the way we are trained. You are inside and do not see what the chief sees. There could be something like a gas tank or propane leak or any number of dangers that have to be relayed to one another.”

Radios are so useful that each firefighter should carry one. “I worked in a Rescue Company and each man carried a radio before it was allowed,” Vigiano said, “and when I was promoted to Captain, I made sure each man carried a radio in my ladder company before it was allowed. To me, radios were the most significant tool we had in my career.”

As for lessons people should learn from September 11, 2001, “the best recipe,” former Chief Riches said to prevent tragedy, “is fire drills and planning so that everyone knows what the whistles and orders mean and how to get out.”

Top Ten Innovations that Have Helped Fire Fighters in High-Rise Buildings since September 11, 2001

from recently retired FDNY Deputy Chief Jim Riches

1. Thermal imaging cameras

2. Blankets to cover windows and prevent wind driving into fire apartment

3. Tower ladders to deliver water on fire up to 10 stories

4. Haligan tool to force open doors

5. Bunker gear to protect firefighter from burns

6. Hurst tool for extrication at car accidents

7. Portable repeater to boost radio signals at high rise

8. Sprinklers in buildings to extinguish fires before they escalate

9. Portable radios for firefighters to communicate with each other

10. SCBA mask, which is the air tank on masks that helps firefighters breathe

Molly Stark Dean is a Reporting the Nation major at New York University. She attended Suffolk University where she received a Bachelor of Science in Communications and minored in Creative Writing and Psychology. She interned at WGBH-TV, WNYT-TV, WHDH-TV, and ABC News Nightline.

Liability or the Deepest Pocket- Will Post 9/11 Suits Help Push Reform?

By Guelda Voien

New York, May 2--Lawsuits are the American way. Even as we vilify them, we can thank lawsuits for seatbelts, fire escapes, even mandatory heating in our apartments.

In the wake of 9/11, government contractors, airlines, the city of New York, the Environmental Protection Agency, the Port Authority, the Federal Aviation Administration and the government of Saudi Arabia have all been litigants in claims brought by victims, their families, and workers. Of the original 95 lawsuits on behalf of 96 victims, 53 cases were settled quickly. Others, including the large class-action suits by first responders and the residents of lower Manhattan against the city and Port Authority, remain unresolved.

These lawsuits claim to be motivated by a desire to help the public gain better access to pertinent information. But, do plaintiffs in 9/11 cases just want their share of large government payouts? Or, will the logic of the law help us carve out where the oversights, assumptions and disorganization that allowed mishandling to occur were located, and thus, help us institute reforms?

For Joel Kupferman, of the Environmental Law and Justice Project, the goal of the suits is noble, not predatory. “I don’t want the head of the EPA lying to us. I don’t want people promoted for leaving a disaster like this. I want medical monitoring and proper clean up for people [who are at risk for dust inhalation,]” he says.

On March 27th, the United States Court of Appeals for the Second Circuit upheld an earlier decision by the Federal District Court in Manhattan, which will allow one major case against the city, one that has more than 4,000 plaintiffs, to go forward. The opinion stated that the purpose of the suit was to determine if the city was immune from prosecution because 9/11 was an extraordinary circumstance, and that it would have to determine that on a case by case basis, meaning the case could easily go on for years. On April 22nd, the former head of the EPA was found not personally liable for the “conscience-shocking” assurances she gave to New York City residents, entreating them to return to homes and schools covered in toxic dust.

But Kupferman says toxic tort cases, while vitally important to improving safety, are ineffective in spurring reform because they often carry a gag order. This prevents others whom the toxins might affect from learning about the situation and about the legal and environmental remedies available to them. Both the amount of the payout and the exact details of the case are often kept secret as a condition of settlement.

The city has admitted that the World Trade Center’s destruction sent aloft dust that has made people sick. Last May, Mayor Bloomberg asked that the compensation fund for 9/11 victims be re-opened to allow first responders to be compensated for their suffering caused by the toxic dust that the towers’ demolition spewed into the air. He has not said that residents of lower Manhattan should be compensated. But for the plaintiffs in Kupferman’s case, change, not recompense, is the primary goal. The court that matters most to them is that of public opinion, as the issue of toxic dust has not been widely discussed since the 2006 death of detective James Zadroga, whose status as a first responder was so scrutinized that people now seem reticent to state publicly that their health concerns are directly related to 9/11.

The Environmental Justice Project has launched a civil suit against the EPA, stating that the Fifth Amendment rights of their clients to be free from bodily harm were violated when the government failed to alert residents to the risks of returning to work, school and residence in lower Manhattan. The suit seeks unspecified damages. It differs from a toxic tort case in that it could also result in an injunction that requires some action on the part of the city, rather than a settlement. Kupferman says money is incidental. The real hope is that Christine Todd Whitman, head of the EPA during the disaster, will testify about the mistakes that were made. The litigants in this suit are interested in the city and various federal agencies’ responsibility for the children who were allowed to go back to school two months after the attacks, when the dust had barely settled, and for the city inspectors who visited sites all over downtown without face masks because the city was afraid of causing alarm.

Not everyone feels that residents have strong claims against the city, let alone the federal government, for failing to ensure their safety. The question of whom, if anyone, to sue when a falling building poisons you with asbestos, is difficult to parse. Some think the city, Port Authority, and EPA are not responsible, that common sense about the risks involved ought to have prevailed.

“It’s not as though [they] got black lung,” says Adam McClelland, who lived in Soho during the attacks, and went to the World Trade Center site as the towers fell to hand out coffee to firefighters for days. “It’s just that it was an extraordinary circumstance, and it’s gotten a lot of attention,” he says. McClelland does not recall having any respiratory problems after the attack, but admits that “everyone is different, and we still don’t know what will happen in 15 years.”

Kupferman felt federal jurisdiction was the easiest to go after, and so his suit focuses on the EPA, but, as he says, “there are 3 or 4 different layers of government here” that one could construe as responsible for your safety in an event such as 9/11. “You would think that would help you be safer,” says Kupferman, “but it was the opposite.”

However, are government entities just the deepest pocket in a web of liability surrounding an unprecedented tragedy? Kupferman believes that laziness, incompetence and greed were the real issues, and litigation is the only way to force government to behave differently. He says that internal correspondence at city government shows that economic interests pushed the re-opening of lower Manhattan, and that warnings from the EPA were ignored by the city. He also alleges that hired experts, such as doctors and engineers, were told to not to find the area dangerous by city officials, who hoped to mitigate the disaster’s impact on the city’s economy.

Carrie Crow worked in lower Manhattan shortly after 9/11 and could have been party to a suit, though she is not. “I felt like I was pressured, there was this patriotic campaign that said you should show up to work, you should go out and buy things, you should take your kids to school and resume life as normal,” she says, but now she thinks this was not the best course of action. “I think the EPA and the city, they gave out totally incorrect information, it was a huge mistake. They let their constituencies down,” Crow says. She felt she was assured that it was safe to go to work, and now knows it may affect her respiratory health later in life. “The city lied,” Crow says.

Some questions remain as to the good faith of some post-9/11 litigants, however. Paul DiNapoli, co-counsel in the first-responders’ case, has recently come under scrutiny because of alleged abuse of settlement funds dispersed after he won his first big class-action suit- the “fen-fen” diet pill case. Although the actual numbers are protected by gag order, many believe that suit resulted in a payout of over $1 billion. DiNapoli has said publicly that he wants settlements for his clients in the 9/11 case. Napoli, Bern, and Ripka LLP, his firm, says they need to settle well in order to break even because they have already spent millions on expensive medical research for their 9/11 case.

Michael Eatroff worked on a first responders’ case against the city and the Port Authority. He says his firm “represented different workers from different agencies,” in a class action against the city “for all emergency workers who worked at the site after it fell and within the first two years.” During three and four hour depositions Eatroff saw workers thoroughly questioned about physical symptoms, mental and emotional problems, and respiratory problems. “City attorneys wanted to show that there were other causes of our clients’ respiratory problems,” said Eatroff. His clients claim not only that they suffer from chronic respiratory problems, but that the problems were caused by asbestos, not the mere dust that the city said was, in Rudy Giuliani’s exact words, “just the World Trade Center cough.”

Research physicians, such as Robin Herbert, of Mount Sinai Medical Center, have said that asbestos, dust and fiberglass could still have been an issue for as long as two years in lower Manhattan. Some first responders “continue to have persistent upper and lower respiratory symptomatology — coughs and sinus problems,” Herbert said in an NBC interview in 2003.

And even if all the safety regulations during clean up had been strictly followed, the levels of asbestos and other toxins might still have been too high to be safe or legal, especially for children. However, the private contractors hired to dispose of 9/11 debris did not always follow the regulations, as the contractors themselves have admitted. Representatives of the company would eventually state at a public meeting that they would have needed to have “workers' mothers on site to admonish them to [effectively] comply,” with the regulations the city stipulated.

Students at Stuyvesant High School, located across the street from the World Trade Center, were allowed to return to school in October, although studies have shown that area was still replete with toxins. Independent testing has shown that the material that trucks removing 9/11 debris carried contained levels of asbestos and fiberglass that were unlawful to transport through public streets, according to Kupferman. Responsibility for the procedure is shared by Port Authority, the Lower Manhattan Development Corporation, the City and the EPA.

“The real problem with port authority is that they are being lax right now during reconstruction,” says Kupferman. The Port Authority and LMDC are unique entities: hybrids of the public and private, staffed and funded by both government and private enterprise. This causes unique jurisdictional conflicts and as well as a murky landscape of motives. It is not unreasonable to assume that business interests would be part of the decision-making for the LMDC. Activist Sally Regenhard, of the Skyscraper Safety Coalition, says the clean-up was “a massive failure at the federal, city, state and definitely the Port-Authority level.” “It all comes down to money,” says Regenhard.

All that was decided in the most recent legal episode was that in fact the city’s immunity would have to be decided on a case-by-case basis. How other entities will fare is left to be seen. On Wednesday April 30th, the Port Authority of New York and New Jersey was found liable for damages incurred in the 1993 World Trade Center attacks, according to The New York Times.

Detective James Zadroga died in 2006 from respiratory failure linked to his work at the World Trade Center site. Mention of him still incites immediate controversy. Many people say it cannot be proven that he died from 9/11 dust, and even if he did, questions remain as to whether certain equipment would necessarily have prevented his death. But are people skeptical because they think his family is in search of the deepest pocket? Or because they are afraid to acknowledge how massive a public safety failure post-9/11 clean up may have been?
Kupferman says the firemen he represents only wanted one thing. “They wanted someone to tell them ‘Don’t wash your clothes with your kids’ clothes,” he says. “What cuts across the left and the right is that people want the government to give the correct information.”

Guelda Voien is a graduate student in journalism at New York University, specializing in reporting on national issues. She has worked as a research associate for a commercial real estate brokerage, as a creative assistant for an Emmy-award winning screenwriter and has interned for the American Civil Liberties Union.

Falling Through The Enforcement Gap

While New York construction workers fall to their deaths at an alarming rate, Ontario has the best safety record — and the inspectors to show for it.

By Andrew Garib

New York, May 2 — On November 2, 2006, 25-year-old Ramiro Jara unclipped his harness from his safety line and attempted to cross between two scaffolds, 25 feet apart and 15 stories above busy morning traffic, suspended from the roof of the building he was working on.

He never made it. Jara slipped off the building’s ledge at the Union Square construction site and fell to his death. He landed on a platform one story above the ground, steps away from Fifth Avenue.

The New York City Department of Buildings called Jara’s death an accident, but in the same breath announced an array of safety regulations that Jara’s employer had violated at the site. The builder did not have a license for the rigging the scaffolding hung from, a licensed rigger or a designated foreman on site, nor paperwork showing that workers had been trained for the rigs.

Jara’s death was not unique in New York. Just this January, Brooklyn’s Yurly Vanchytsky, 53, was decapitated after falling 42 stories from the top of the nearly complete Trump Soho tower on Spring St., where he was pouring concrete. Two weeks later, Queens resident Jose Palacios fell 12 stories to his death after his scaffolding collapsed in Clinton Hill, Brooklyn. And on April 15th, Kevin Kelly, 25, of Queens, died after falling nine floors when his safety strap failed while installing windows on a high rise condominium on the East Side. All three job sites were riddled with safety violations. “Safety is not a priority for the Buildings Department,” said Representative Carolyn B. Maloney of New York’s 14th district, which includes the site of Kelly’s death.

The public cried out for changes, and the city reacted haphazardly. In March, a city inspector was jailed for his negligent role in a crane collapse that killed seven people amidst reports of corruption from the city’s press. But critics like Manhattan Borough President Scott M. Stringer still slammed the department, saying it “doesn’t get it.” The City sustained enough pressure to force out Buildings Commissioner Patricia J. Lancaster, a former engineer who herself called for more regulation. In the mean time, construction deaths steadily rose, from 19 in 2003, to 38 — 24 involving falls — in 2006.

In New York City’s still growing building market, falls account for more than half of all construction fatalities. But a non-scientific investigation of construction falling deaths in booming major cities across the country shows that New York is not alone. And while city officials have received enormous pressure to improve safety laws, a detailed comparison between New York City and a jurisdiction which boasts the best construction safety record on the continent shows that the difference may be in how the law is enforced. The Canadian Province of Ontario, whose capital, Toronto, is one of the largest and fastest growing cities in North America, has half as many occupational safety and health inspectors as the entire United States, or nine times as many inspectors per construction worker. Ontario also has tougher penalties, while Toronto has nearly 50 per cent fewer falling deaths than the Big Apple.

A National Problem

Michael Donovan is more concerned than most about construction safety in New York City. “Walking down the street, I cringe when I see scaffoldings at the tops of 40-story buildings,” the Manhattan-based Certified Industrial Hygienist said. “If I see grappling hooks over parapet walls, I wonder, how much did they check? Did they have a professional engineer sign off on it? Bricks break loose, or cinder blocks, and there you go.” Donovan has 20 years of experience in worker safety issues, including those involving the cleanup at the World Trade Center after the attacks of September 11, 2001.

Construction is the most dangerous industry for workers in America, and falls account for more than a third of all construction deaths. At the national level, the Occupational Safety and Health Administration has overseen stringent and respected safety standards for fall protection since 1979.

“There are very good fall regulations, especially on scaffolding,” Donovan said. The problem, he said, was their enforcement. “OSHA is so thin in terms of manpower, they react instead of act. They react well, but I don’t know if they can really enforce” the regulations.

“OSHA’s New York regional office has a strong inspection schedule to reduce injuries and fatalities in the local construction industry, as well as an ongoing aggressive campaign to educate employers and employees about the vital importance of promoting prevention through training,” George Chartier, OSHA spokesperson, said in an e-mail.

Administration fall protection regulations apply to any workspaces where there is a risk of falling 6’ or more. The administration requires one or a combination of three systems to protect workers: Guardrails to prevent falls, safety nets to prevent serious injury or death due to falls, and personal fall arrest or fall restriction devices, which are straps, cables and anchoring attached to the worker’s harness. (See full chart.) The regulations are incredibly thorough, with over 60 pages detailing the required height of guardrails (39-45”) and their proper installation, the maximum width of safety net webbing (6”) and even the materials they can be made from (steel cable or nylon). The administration also has strict and detailed regulations regarding the design, erection, use and dismantling of scaffolding, and the fall protection systems required on scaffolding and other aerial moving platforms, such as cherry pickers.

The administration can levy fines of up to $7000 for hazards that pose or cause a threat to worker safety, and up to $70,000 for the worst offenses, called “willful” violations, where the builder knows about but recklessly disregards dangers. “If you have a willful citation issue in connection with a fatality or a hazard directly related, Labor Department attorneys would discuss the matter with a US attorney’s office,” said Ted Fitzgerald, the department’s press officer for Region 2, which includes New York. “OSHA can’t bring up litigation ourselves.” Fitzgerald said criminal prosecutions and jail time are very rare, and was unable to provide national or regional enforcement statistics by the time of publication.

Occupational safety and health specialist Tony Straka agreed that while federal and some city regulations were good, enforcement was lacking. Straka works for the New York Committee on Occupational Safety and Health, a labor-based non-profit coalition advocating for workplace safety, and has testified on their behalf before state and city hearings regarding construction safety. Straka said the number of OSHA inspectors nation-wide was alarmingly low, down from 1082 in 2003 to 818 in 2007 — slightly less than one for every 8,000 construction workers in the country.

“The staffing of the Occupational Safety and Health Administration continues to be well below what it should be to ensure safe and healthy conditions in the workplace,” Straka said before an emergency meeting of the New York City Council Committee on Housing and Buildings on February 4. “Despite OSHA’s emphasis on construction hazards, and its best efforts to perform its mission to the best of its ability, it is clear its ability to enforce its regulations is limited by its limited staff.” The same, he said, goes for Buildings, which in 2007 had approximately 75 inspectors responsible for enforcing the entire building code, up from about 50 in 2006.

(Straka and others, such as administration Manhattan-area director Richard Mendelson and Building Trades Employers Association President Louis Colletti, also cite immigration status and language barriers as major factors in construction injuries and deaths.)

With the federal administration’s low inspector count, construction safety becomes a national problem. Taking a look across the country in four major cities with building booms between 2003 and 2006, for when the most recent data was available, it is clear that New York’s problem of falling hardhats is not unique to the five boroughs.

Dallas/Ft. Worth, which was one of the fastest growing metropolitan areas in the nation according to the Census Bureau and was in the midst of a building boom at the same time as New York’s, recorded an average of under 7 falling deaths per year between 2003 and 2006 according to the Bureau of Labor Statistics. (See full chart.) New York City had an average more than twice that, on par with Chicagoland. The average number of fatal construction falls in New York per capita was 63% above Dallas/Ft. Worth’s, and a third higher than the national rate. Worst offender Metro Miami was more than twice the national average.

In Dallas/Ft. Worth, the safest metro area for construction falls in this unscientific study, OSHA was the only law protecting against falls in construction. But in New York, a labyrinth of regulations hasn’t slowed the death rate.

New York’s Regulations Tangle

Lawyer Nicholas Wise knows New York’s construction safety laws as well as anyone. He has worked at the personal injury firm Weitz & Luxenberg for more than a decade, and has won millions of dollars for his clients. A recent case involved a construction worker working at “a fancy new hotel” in the Meatpacking District in Manhattan. The construction company sent the worker to the roof of a building which was being stripped and incorporated into the new hotel, where he was to pick away at the roof made of old asbestos. The worker was provided a safety line that was insufficient for the work and the risk involved.

“Lo and behold, he’s chopping through the roof on which he’s standing, goes through the roof, down to the next floor, and lands with legs on either side, his crotch on an I-beam,” Wise said. The worker fractured part of his spine, sued his employer and won. “If they’d given him a proper line, he would have fallen two or three feet, and he would have been fine. You have to give people the right equipment.”

To win the case, Wise used a little-known provision of New York State Labor Law called Section 240(1), which requires construction companies to provide their workers with proper safety equipment when working at a height. “It is a very helpful law, and as a result of it, owners and general contractors go to much greater lengths to make sure they do have those protections,” Wise said.

Another part of the Labor Law, Section 241(6), refers to yet another set of construction safety laws: the New York Industrial code. “You can base a cause of action on that, but you have to show a violation of the industrial code,” Wise said. “The ironic part of that is, no one really looks to the industrial code. They look to OSHA, because they haven’t amended [the code] or changed it since the mid-70s. But you can’t predicate a liability case just on OSHA.”

Thus a key part of New York’s web of construction safety laws is allowing injured workers or the families of killed workers to sue in civil courts. But Wise said that the Labor Laws like Section 240(1) have been weakened by the judicial system. “What has been happening in the past five to eight years, is the courts have been eviscerating the protection, they’ve been narrowing when it applies,” he said. “It used to give [workers] full protection.” New York is the only jurisdiction in America with such laws on the books.

Buildings also has safety regulations built into the city’s building’s code, which is unique to New York among the cities studied for this story. The most recent additions to these laws were prompted by deaths in the industry, particularly scaffolding accidents. When Ramiro Jara died in November 2006, the city created an emergency task force that consulted with city officials, representatives of labor and building companies, and members of the occupational safety policy community, including Tony Straka. The Scaffolding Workers Safety Task Force provided the city with thirteen recommendations, all of which were implemented in some form into city law. The so-called Scaffolding Laws now require companies to have a license in order to use a suspended scaffold, as well as to notify the city when scaffolds will be erected, used and dismantled. This is on top of earlier scaffolding regulations in the building code from 2005, which provided similar but more stringent regulations than OSHA’s rules.

Despite these changes, the falls continued, and pressure on the city mounted. The latest spate of construction falls, particularly the death of Yurly Vanchytsky in January, prompted calls for new regulations on concrete work. Vanchytsky died when the wooden molds holding the concrete he was pouring collapsed, sending him plunging to his death.

The alarm at City Hall was palpable. “The construction industry in general, and concrete operations in particular, need more regulation,” former Commissioner Lancaster said in her prepared remarks at the February 4 emergency meeting, where she recommended new licensing and safety requirements for general and concrete contractors.. “The impetus here is the absence of an accountability scheme amongst the contractors on a job site,” department spokesperson Carly Sullivan said.

Still, other politicians said the recommendations were not enough. In an e-mail, 2nd District Councilwoman Rosie Mendez called the new regulations a good start, but “the proposals are too narrowly focused, and they need to be expanded to include preventative measures for the wide range of construction accidents we’ve seen across the city,” she said.

The city had its most vocal criticism from Manhattan Borough President Scott M. Stringer, who called for an overhaul of the department. Stringer said that Buildings had “lost the confidence” of his constituents, and needed to cede some of its investigatory powers to other city agencies.

Closing his speech before the February 4 meeting, Straka said that stiffer penalties would make the industry safer. “If an employer knew there was a substantial likelihood of being criminally prosecuted — and going to jail — for taking shortcuts with other people’s lives, it would be certain to get his attention and would be certain to greatly reduce the number of construction accidents and fatalities in New York City,” he said.

But while politicians and lawyers disagree on the causes of New York’s high rise construction safety crisis, construction safety experts insist that the problem, at least in part, is one of enforcement. “I think the point is that they’re the stretched so thin,” Donovan said of Buildings.

Looking to Ontario

Carlos Figueira has worked in the Ontario construction industry since he was 17. After thirty-three years of construction labor and consulting, he now runs special programs for the Construction Safety Association of Ontario, a respected industry-based non-profit promoting worker safety that claims Ontario has “the best construction safety record in North America, possibly the best in the world.”

Ontario’s capital, Toronto, has had as big a boom in the construction industry as any city on the continent, yet has had fewer construction deaths than any of the cities profiled in this story between 2003 and 2006. Toronto’s construction safety regulations are governed by the province (a more powerful equivalent of a state government). “Ontario has been known to have probably the most stringent regulations compared to other jurisdictions within Canada,” Figueira said, which “often look to Ontario.”

Ontario’s Occupational Health and Safety Act of 1978 covers regulations that are broadly equivalent to those in OSHA, with few exceptions. (See full chart.) Ontario’s regulations are as thorough and detailed, if not as long and meticulous. (Ontario’s law fits on eight pages.) Fall protection legislation comes into effect at 3 m (10’) but can require measures for heights as low as 1.2m (4’). Unlike US regulations, guardrails are required first and foremost, but if they cannot be provided for practical or safety reasons, the worker must have a restraint, fall arrest, or safety net system in place. These systems must meet exacting specifications provided by the Canadian Standards Association, an independent industry standards association, as well as those explicitly listed in the legislation itself. In 2001, the Ontario government added a requirement to adequately train workers in fall protection systems.

On top of the regulations, the Ontario Ministry of Labour requires all contractors to register with the Workplace Safety Insurance Board, a public insurer and occupational safety training and education agency under the aegis of the ministry.

Penalties for non-compliance are harsh. Corporations can be responsible for fines of up to C$500,000 (about the same in US dollars), and individuals can incur fines up to C$50,000 and, unlike in American regulations, twelve months of jail time. The ministry publishes all recent fines above C$5000 for individuals and $50,000 for corporations, and has 90 listed on its website for 2007. In April, a steel company received C$400,000 in fines.

One builder, Ion Cenuser, was sentenced to seven days in jail and fined $3000 under OHSA for pushing a ministry inspector. A March Law Times News article said “the ministry is pressing hard for jail time in regulatory matters.” Bruce Skeaff, spokesperson from the ministry, said jailings remain “extremely rare,” Cenuser’s case being the only one he can recall in his years with the ministry. “Supervisors have been given jail time because of clear negligence,” Figueira said. “They definitely neglected their responsibilities.”

Importantly, unlike OSHA, Ontario’s regulations have a built-in mechanism for allowing civil cases for negligence under the occupational safety law, a measure that fills the gap left by a narrowing Section 240(1) in New York’s jurisprudence. Finally, a federal law allows criminal prosecution of builders found extremely negligent in the injury or death of their workers. Bill C-45 came into effect in 2004, and found its first conviction in the Province of Quebec in December 2007, where a worker was crushed to death in 2005 and his employer was charged under the law.

The Enforcement Gap

Figueira said that the key to Ontario’s worker safety success has been a responsive legislature and proper enforcement and inspection. “If we continue to have accidents in a certain area because of a certain task they’re doing, they’ll implement legislation,” he said of the provincial government. “For example, fall protection [regulations were] not as stringent as it was six years ago, back in 2002. They made amendments to the act requiring certain things, including mandatory training.” Figueira said that Ontario added 200 inspectors in 2005, which the ministry confirmed.

While the number of Ontario construction deaths and fall fatalities have declined during the building boom in Toronto and other Ontario cities, American numbers have grown slightly, and New York’s have grown drastically. And while the US Department of Labor has not been able to produce the number of its occupational safety inspectors in New York, the national numbers alone are telling: OSHA had a total of 818 inspectors in 2007 nation-wide for an industry with 6.7 million workers according to the Census Bureau. Ontario — with a tiny fraction of the population and only 405,000 construction workers – had more than half that number, 430. The Department of Buildings had its inspectors, too, but they are responsible for enforcing the entire building code, of which only a small part is concerned with safety.

Michael Donovan said he’s “not surprised” at the disparity of inspectors: the results speak for themselves.

Neither OSHA nor the US Department of Labor provided a comment in time for the publication of this article.

When asked if his province’s regulations were enough to protect workers, Carlos Figueira said yes, for the moment. “Things were changing, practices were changing, and you have different people coming in,” he said, and government needs to respond. “But legislation comes upon actions.”

In New York, Tony Straka still says enforcement needs to improve. “The overall number of available inspectors is very small,” he said. “We live in a time of smaller government, at least in terms of resources available for domestic problems.”

Meanwhile in New York, safety regulations go unenforced, and workers keep falling and dying.

Mississauga, Ont.-born Andrew Garib is a journalism graduate student at New York University. He graduated from Cornell University in 2006, where he studied philosophy and government and edited the campus’s leading political newspaper, the progressive Turn Left. Andrew interned at the Center for American Progress’s youth outreach arm in 2005, and regularly contributed to its on-line publication, CampusProgress.org. Andrew interns for METRO New York, and hopes to one day work as a political reporter.

As Debate over Stairs' Safety Requirements Continues, New Building Far Surpasses Code

By Chad Smith

New York, May 2 -- For the past five years, the New York City Department of Buildings has continually updated and revised its laws on skyscrapers, driven partly by lessons learned on safety after 9/11.

And each year, it has had a chance to make two particular revisions, which many firefighters, architects, professors, 9/11 survivors and engineers have long said could save more lives in a skyscraper catastrophe: wider staircases and more sets of them.

Each year, on the issue, the Buildings Department has done nothing.

“Wider staircases can mean the difference between life or death," according to Vincent Dunn, a retired, 42-year veteran of the New York City Fire Department. "These are people's lives, and you have a Department of Buildings interested in doing frills."

Walk into almost any skyscraper in this city and the staircases will be 44 inches wide, with three sets of major staircases. Experts say this width and this number of sets don’t offer enough room for the quick, efficient evacuation of thousands of tenants — when seconds are crucial — and cite much of what was learned in September 11th’s aftermath.

Over a dozen calls were put in to the Department of Buildings on the staircase issue over the last two weeks; spokespeople there promised to get back with answers, but the department never returned a single call. New laws on the staircase issue haven’t been passed, the Buildings Department has said in recent years, because it can’t gain “consensus” from those representing owners and developers, who stand to lose money on the potentially rentable space that would be lost if staircases were given more prominence.

But one building owner, Bank of America, and its developer, the Durst Organization, are doing things differently. They are taking the lead on staircase safety, surpassing city codes and forgoing the profit that could be made if they simply built to code.

Bank of America’s new 54-story headquarters near Bryant Park will have ideal staircases when it comes to safety, many experts believe.Larry Grayson, a Bank of America spokesman, said his company had employees who had died and survived 9/11 in mind when the bank decided to build the building and staircases this way.

One of those employees might have been Chris O’Driscoll, a former high level Bank of America manager who on the morning of Sept. 11 was on the 82nd floor of the north tower when the first plane hit. O’Driscoll escaped that day and in an e-mail message had this to say about wider staircases and his ordeal:

“If you wanted to evacuate a 100-plus story building in a hurry, then two abreast” — which is barely what 44 inches affords — “is not going to be sufficient. I believe if we had been aware of the possibility that the north tower was going to collapse, [many would have panicked and] it would have been much more difficult to escape within the confined space of the staircase. Any additional space would assist in the evacuation of a tall building.”

The staircases at the new Bank of America headquarters will be 66 inches wide, or 33% wider than what the city code requires, according to Jordan Barowitz, director of external affairs at the Durst Organization, the building’s developer.

According to experts, that’s enough room for three people to descend comfortably side by side and provides enough room for counterflow. An ideal example of counterflow is one in which firefighters can efficiently move up the staircases with heavy equipment as tenants fleeing walk down. Counterflow was a problem on 9/11 in the twin towers’ narrow staircases.

“I remember walking down the staircase two abreast,” O’Driscoll said, “and that once the firemen walked up we had to make way for them, so we progressed one at a time for a while. There were frequent delays….”

Bank of America’s staircases will be encased by two and a half feet of steel-reinforced concrete walls. After 9/11 the Buildings Department did mandate stronger materials be used for the encasing of skyscraper staircase walls — the twin towers’ were made of lightweight gypsum board and didn’t stand a chance on impact — but Dunn, the retired fire chief, said that there’s no higher standard than steel-reinforced concrete. He called Bank of America and Durst’s choice “impressive.”

The reinforced staircase will be located at the building’s center, its “core,” according to Barowitz. The core is one of the strongest parts of the building, meant to better preserve life-saving infrastructure, like staircases, in case of disaster. It’s a reaction to what happened on 9/11, Barowitz said.

“Our staircases in the core will be able to withstand a massive impact,” he said.

Furthermore, the Bank of America staircases will be air pressurized, which means if heavy smoke is circulating on one of its office floors, and someone on that floor opens the staircase door to escape, the choking smoke won’t follow him in. The staircase’s air is maintained at a higher pressure than the office floor’s and will essentially bar most of the smoke from entering.

Air pressurized stairs are not required by the city’s building code.

Barowitz said there will also be “safe havens” in the staircases. That is, at each floor, there will be an extra large landing. Disabled people or those who need to rest can take breaks as they evacuate and not hold anyone else up.

This extra measure is crucial, according to Glenn Corbett, professor of fire science at John Jay College of Criminal Justice.

“You need a place to attend to someone who can’t egress as quick,” Corbett said. “It’s not fair for one person to put others in the worst kind of danger when it can be avoided.”

Asked how many separate sets of staircases there will be at the Bank of America tower, Barowitz didn’t have an exact number. He said there will be “many, many sets of staircases. The number exceeds what’s required, I can tell you that.”

Bank of America and the Durst Organization wouldn’t say how much money they could have made if the space devoted to more staircases was used for rentable space. Grayson did say this:

“One of our core values at Bank of America is ‘Do the right thing.’ The value of square footage potentially devoted to rentable space was far outweighed by the added safety afforded by the staircases designed wider than code requirements.”

With so many voices lined up for wider staircases, it may be hard for some to imagine why they haven’t been mandated in this city. But there are some reasons.

The counter belief behind not giving staircases more prominence is a fire-fighting strategy called “defend in place,” which essentially means, "If there’s an emergency, stay put.” If there’s a fire on the fifth floor of a skyscraper, tenants on 25 need not evacuate and potentially expose themselves to unnecessary risk, such as perhaps being trampled as they evacuate.

Accordingly, many of the buildings in New York City were built to contain fires to a single floor. The staircases were not meant to accommodate a large percentage of the building’s population, as they were forced to do September 11.

"If you have a building filled with 50,000 people, I don't care how wide your stairways are or if you have two or three major staircases,” said Ron Burton, vice president of codes, standards and regulatory affairs at Building Owners and Managers Association International. “It’s going to take a heck of a long time to get everyone out. We still, as we always have, believe in defend in place.”

Burton’s organization, which represents thousands of building owners, has been pointedly criticized in the past by fire safety experts, and has been accused of standing in the way of wider staircases.

“I don’t think it’s fair to say we’re ‘standing in the way of wider staircases,’” he said. “This is an ongoing, complex issue, and we’re all still exploring it. Obviously, we care about people’s safety or we wouldn’t be in this business.”

Still, Burton said, his building managers association believes that 44 inches are wide enough. His organization also believes that three staircases in skyscrapers are adequate because, again, every person shouldn’t be in those staircases in an emergency anyway, he said.

Dunn disagreed.

"High-rise staircases," he said, "are still designed based on the belief that a fire will be confined to one floor; therefore, they need not have the capacity to hold all the building's occupants in an emergency. But remember the Titanic and the limited number of lifeboats? Same idea. Staircase design is still based on the building being fireproof, which many in the fire service, including me, believe is no longer true."

Burton said that the only way his association would change its beliefs is if there were "cross-benefit analysis" — authoritative sources with hard proof, and much of it — showing that wider staircases and more sets of them are worth the extra financial and structural burden and make skyscrapers safer, which he is yet to see.

Dunn said that it’s about more than such analysis and meeting the minimal requirements, “The current New York City codes are just the letter of the law,” he said, “not the spirit.”

Chad Smith is currently pursuing an M.A. in journalism at New York University in the Reporting NY program. Growing up in Forest Hills, Queens, Smith has always been fascinated with New York City. The graffiti, the grit, the gossip, the haves, the haven’ts, the talented, the beautiful, and the ugly. Smith hopes to see it all and weave it all into his work. Before NYU, he wrote for several newspapers, most notably The Villager based in Downtown Manhattan, where he wrote investigative, hard news and arts pieces. Recently, Smith worked as a fact checker for Dow Jones, but he is more excited than ever to be reporting again.