9/11 Families Press Judges On Sifting At Landfill

9/11 Families Press Judges on Sifting at Landfill

http://www.nytimes.com/2009/12/17/nyregion/17sift.html

By C. J. HUGHES
Published: December 16, 2009

In an effort that has stretched nearly a decade, some families of 9/11 victims have fought to have the remains of their relatives identified and put to rest.

In 2002, they organized as the WTC Families for Proper Burial Inc. They sued the city in 2005, then appealed after they lost in 2008.

On Wednesday, in a spirited hearing interrupted occasionally by gasps, a three-judge panel of the United States Court of Appeals for the Second Circuit listened to arguments on behalf of the 17 plaintiffs in what is quite likely their final legal chance. The families seek to have nearly one million tons of material from Fresh Kills on Staten Island, where debris from the World Trade Center collapse was taken, moved to a nearby site so it can be sifted and put in a cemetery.

“It comes down to this: Are we prepared to leave hundreds of body parts and human remains on top of a garbage dump?” said Norman Siegel, the lawyer for the plaintiffs, arguing that to do less would deprive relatives of their constitutional rights.

The group of plaintiffs, which says it has support from 1,000 other relatives, was challenging a July 2008 decision by Judge Alvin K. Hellerstein of Federal District Court, who found that city workers had done everything in their power to find remains.

But as it did last year, the city argues that the plaintiffs have no claims to the remains because they cannot prove they belong to their relatives, which also makes them ineligible to bring a complaint on behalf of non-family members. The removal would also be too costly, the city says.

In the hearing’s sharpest exchange, when Judge Anthony O. Calabrese Jr. asked what it would take to prove someone’s identity, James E. Tyrrell, a lawyer representing the city, said, “You have to be able to particularize and say it’s your body part.”

“All that’s left here is a bunch of undifferentiated dust,” Mr. Tyrrell added, eliciting gasps and muttered “no’s” from a crowd whose members wore laminated photos of deceased relatives around their necks.

But Diane Horning of Scotch Plains, N.J., whose son Matthew worked on the 95th floor of the north tower, said she found many trade center-related items at the landfill on dozens of trips there. She produced some of them outside the courtroom.

A corroded key, marked with the words “World Trade Center,” came from a gulley formed after a rainstorm, she said. In a plastic bag, there were two sizeable bone fragments that Ms. Horning said came from Fresh Kills, though she had never had them tested for DNA to see if they belonged to victims of 9/11.

With methane gas bubbling up from the soil there, “it’s a disrespectful, dishonorable place,” said Ms. Horning, the president of the group.

During the hearing, which was also presided over by Judge José A. Cabranes and Judge Barrington D. Parker, Mr. Siegel accused the city of reneging on its promise to set aside victims’ remains, a change in policy that he said happened in July 2002.

“They commingled it, and then they dumped it,” Mr. Siegel said of the remains’ being mixed with household trash, adding that a Fresh Kills worker had witnessed city employees use that mixture to fill potholes.

The reference brought a shake of the head from Valerie Speller, who was there to honor her brother John Candela, who worked in the north tower.

“I think the whole thing’s pretty deplorable,” Ms. Speller said after the hearing. “I don’t think there was any human compassion from the city.”