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At the same time that the Justice Department puts the finishing touches on a controversial program to compensate families of Sept. 11 victims, lawyers are starting to ask about another group of potential victims: What happens to the unknown number of people who may become ill from breathing toxic chemicals thrown into the air by the collapse and cleanup of New York’s World Trade Center? The question is the focus of urgent scientific study, with little consensus so far. And lawyers say the legal picture is just as cloudy. While a handful of people will be able to make claims on the federal fund, many more do not qualify, at least as the current rules stand. “It’s very unfortunate to say that these people may have no recourse,” says Hugh W. Campbell, a New York lawyer who is president of the New York State Trial Lawyers Association. The current draft of the regulations governing the compensation fund limits eligible World Trade Center claimants to people who were present at the site within 12 hours after the airliners crashed into the two 110-story towers. Rescuers must have been present within the first 96 hours to be eligible. All claimants must also have been treated by medical personnel within 24 hours, a requirement that may disqualify many firefighters. According to the Uniformed Firefighters Association, a labor union, many stayed at Ground Zero, ignoring injuries, to help with the rescue and recovery work. Others developed breathing and other problems only after leaving the site. And there is no provision in the federal regulations for people who may develop cancer or some other disease after the deadline for filing claims passes in two years. GROUND ZERO’S SHADOW As a result, lawyers have filed some 1,300 notices of claim against the city of New York, by firefighters and other rescue workers who claim breathing the air at Ground Zero has already made them sick. Barasch, McGarry, Salzman, Penson & Lim’s Michael Barasch, whose office is just a few blocks from Ground Zero, filed nearly 1,000 of the notices of claim on behalf of firefighters and a smaller group of police officers, sanitation workers and others. Under New York law, plaintiffs must file the notices within 90 days after an accident in order to sue the city. Barasch says he and his clients have been the targets of criticism as a result of filing. “How can you be so insensitive to sue the city of New York at this time?” says Barasch, summarizing the critics. “We filed notices of claim to protect these guys if they don’t get better.” Many of Barasch’s clients have developed asthma, scarring of the lungs and other breathing difficulties, he says. Some have neurological problems, including a few with Bell’s Palsy, a type of facial paralysis. Overall, the firefighters’ union says that between 600 and 700 of the 11,000 New York firefighters are on medical leave as a result of Sept. 11. Of those who remain on the job, many report a persistent “World Trade Center Cough.” Barasch faults the city for failing to ensure that firefighters and other rescue and recovery workers at Ground Zero used respirators on the job. “Within four hours, why weren’t there thousands of respirators there?” he says. He says he has met several times with Kenneth Feinberg, who was appointed special master in charge of the federal government’s Sept. 11 compensation program. Barasch is hopeful that the final regulations for the program, expected this week, will make it possible for more of his clients to make claims. Not everyone who gave notice will end up suing, their lawyers predict, particularly if they have the option of claiming against the federal fund. And while a few lawyers envision huge numbers of future claims by those sickened by Sept. 11 pollution, most say they have no way of predicting how many there will be. Whatever the number, Congress has capped the liability of the city which, lawyers say, is the most likely target of toxic exposure claims, at $350 million. On Feb. 10, the St. Louis Post-Dispatch reported on a study by federal scientists that found potentially dangerous dust in the neighborhood — some of it as caustic as drain cleaner. The next day, scientists from the University of California, Davis released a study showing unprecedented amounts of very fine particles, including metals and other substances, in the air. Researchers have identified asbestos, lead, fiberglass, PCBs, mercury and many other potentially harmful substances in the air and the dust in the neighborhood of the World Trade Center. And environmental groups claim that officials misled workers and downtown residents in the weeks following Sept. 11 by saying the air was safe to breathe. On Feb. 11, Sens. Joseph Lieberman, D-Conn., and Hillary Clinton, D-N.Y., held a hearing on air quality after Sept. 11, at which federal and city environmental officials were criticized for failing to respond to the potentially dangerous situation. Last week, the New York Environmental Law and Justice Project was preparing to file papers aimed at compelling the federal government to take charge of the World Trade Center cleanup, according to Joel Kupferman, the group’s executive director. The group held off, says Kupferman, only after learning that EPA administrator Christine Whitman agreed to set up a task force to study indoor air quality in downtown Manhattan.

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