In Never Forget the Heroes Act

Below is the testimony submitted to the New York City Council Committee on Civil Service and Labor in Support of Resolution 897 calling on Congress to Pass, and the President to Sign, the Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund Act (H.R.1327/S.546). On May 29, 2019, Pitta & Baione helped organize a public rally in front  of the 9/11  Memorial in support of the same resolution. Today, the resolution passed the committee with a unanimous 7-0 vote.


Testimony Of:

Matthew J. Baione, Esq.

Founding Partner

Pitta & Baione LLP

Presented Before

the New York City Council

Committee on Civil Service and Labor

Regarding

Resolution 897:

Calling on Congress to Pass, and the President to Sign, the Never Forget the Heroes:

James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund Act (H.R.1327/S.546)

Monday, July 22, 2019


Good afternoon, Chair Miller and Council Members King, Moya, Dromm, Adams, Ulrich, and Louis. Thank you for holding this important hearing.

My name is Matthew J. Baione, and I am a founding partner of Pitta & Baione LLP, a law firm practicing in the area of 9/11 victim compensation law. I submit this testimony on behalf of the firm, our clients, and the 9/11 community at large. I can speak to both the devastating magnitude of the 9/11 cancer epidemic, and the vital need for permanent authorization of the September 11th Victim Compensation Fund (VCF).

This hearing is well-timed – tomorrow, the United States Senate will vote on the Never Forget the Heroes Act (NFHA), which has already been passed by the House of Representatives by an overwhelming bipartisan margin of 402 votes in favor. Last week, Senator Kirsten Gillibrand (D-NY) attempted to pass the bill with unanimous consent. Unfortunately, the vote was blocked by Senator Mike Lee (R-UT) and Senator Rand Paul (R-KY), each of whom has proposed amendments to the bill. Tomorrow, there will be three votes-Senator Lee’s amendment to cap funding; Senator Paul’s amendment to cut spending in other areas to make up for funding the VCF; and for full passage of the NFHA.

If the bill does not pass tomorrow without amendment then more 9/11 responders and victims will receive reduced compensation, be forced to continue fighting for what is already owed to them, and in too many cases be deprived of their moment of justice before death.

Recently, I had to explain to a retired New York City law enforcement officer that her husband, who is a retired New York City employee and who is suffering from terminal brain cancer in his early forties, is receiving a compensation award equal to 5% (five percent) of what he is owed. Congress is the only hope for this family, and for too many others, who are receiving compensation cuts for one reason and one reason only –  because Congress failed to sufficiently fund the VCF in the past. Senator Lee’s proposed amendment would once again fail to provide adequate funding for the VCF, which would initiate another cycle of grief, shame, and drudgery for 9/11 responders and victims.

So, thank you all again for using your positions of power to call on Congress, and the President, to end this fight once and for all by permanently funding the VCF. Although the 9/11 health crisis is not limited to New York City –  it is a nationwide epidemic claiming victims in all 50 states and in 434 out of 435 Congressional districts – this resolution sends a clear message to Congress that the New York City Council takes care of its own and recognizes fallout from attacks carried out in its own backyard.

 What is the September 11th Victim Compensation Fund?

Individuals may be eligible for compensation from the VCF if between September 11, 2001 and May 30, 2002 they were present:

  • At Ground Zero
  • In Lower Manhattan, south of Canal Street (area workers, residents, students, etc.)
  • At the Staten Island Fresh Kills Landfill
  • In any area related to, or along, debris removal routes (piers, barges, etc.)
  • In areas where WTC-contaminated vehicles or equipment were cleaned or rehabilitated.
  • At the Office of the Chief Medical Examiner of New York City or at temporary morgues.

Conditions eligible for compensation include cancer, lung disease, respiratory illnesses, sleep apnea, and GERD (persistent heartburn). Families of those who have passed away, and suffered from a 9/11-related condition during their lifetime, may also be eligible for compensation. The list of covered conditions is subject to grow over time. For example, cancer was not added until 2012.

Impacts of the VCF Cuts

In October 2018, the VCF Special Master Rupa Bhattacharyya announced that there may eventually be a funding shortage, that the VCF would formulate new policies to prevent that outcome, and that only claims submitted after February 1, 2019 would be impacted. Unsurprisingly, the claim submission rate skyrocketed between October 2018 and February 1, 2019.

On February 15, 2019, the VCF Special Master announced that she had been forced to break her promise: Unpaid claims submitted before February 1, 2019 are cut by 50%, and all claims submitted after are cut by 70%. In many cases the “true cuts” are much higher.

For example, there is a statutory requirement that the VCF apply collateral offsets (e.g. life insurance, disability pension, survivor pension, etc.) against the value of awards. So, if a claimant is entitled to $100,000 in lost earnings and disability benefits are $50,000, then the Claimant is entitled to nothing – a 100% cut against a victim in the 50% cut category.

As another example, the VCF is reevaluating the value of previous personal injury awards in wrongful death claims. So, if a claimant was paid $100,000 during their lifetime, and their family now files a wrongful death claim, the calculation would be as follows: $50,000 for personal injury plus $100,000 for wrongful death, subtract the $100,000 previously paid, for a total award of $50,000. In other words, even though the VCF is applying the new cuts against the previously issued award, they are still reducing the wrongful death award by the total value of that previously issued award. Complicated, but the bottom line is that before February the award in this example would be $200,000. Today it would be $50,000. An 80% cut against a victim in the 50% cut category.

As of January 31, 2019, over 47,000 claims had been submitted to the VCF and 21,317 initial award decision had been issued. The recently announced 50 to 70% cuts (which, due to VCF calculation methods, are much more in some cases; one of our clients diagnosed with terminal brain cancer suffered a 95% cut), impact clients who are unpaid as of February 1, 2019. This means over 25,000 claimants, who were previously told would not be impacted by the cuts at all, are receiving awards cut by at least 50%. Since then, 3,000 claims have been submitted. Their awards will cut by 70% as well as all others who submit before the fund closes on December 18, 2020 (unless the VCF runs out of money before then).

The VCF Special Master cited rising claim rates, which has coincided with skyrocketing 9/11-related cancer and death rates as the reasons for issuing the cuts. The 9/11 cancer rate has risen 3800% in only five years, and the death rate is doubling annually. The confirmed deaths are over 2,000. However, the recorded deaths have only been verified through the WTC Health Program, which did not open until 2011. Experts estimate that the true death rate is already more than the number of people killed in the attacks themselves.

Why is the VCF Necessary?

On September 18, 2001, just one week after the attacks, the Director of the Environmental Protection Agency, Christine Todd Whitman, infamously declared “the air is safe to breathe” in New York City. In August 2003, the EPA Office of Inspector General stated that “When EPA made a September 18 announcement that the air was ‘safe’ to breathe, the Agency did not have sufficient date and analyses to make the statement.”

We now know that the 16-acre site, which burned for 99 days, contained toxic chemicals including the following:

  • 2 million tons of building material and contents which burned at temperatures close to 2,000 degrees Fahrenheit
  • 300+ tons of asbestos
  • 12,000 miles of electric cables containing polychlorinated biphenyls (PCBs)
  • 23,000 mercury containing light bulbs
  • 90,000 liters of jet fuel
  • 130,000 gallons of transformer oil
  • Hundreds of miles of wires containing polyvinyl chloride
  • 50,000 personal computers
  • 300 mainframe computers

Atmospheric scientist Thomas Cahill, Professor University of California – Davis, who had studied 9/11 toxins extensively before his death, commented

The debris pile acted like a chemical factory. It cooked together components of the buildings and their contents, including enormous numbers of computers, and gave off gases of toxic metals, acids and organics for at least six weeks.

Dr. Michael Crane, Director of the World Trade Center Health Program Clinical Center of Excellence at The Mount Sinai Hospital has commented

We will never know the composition of that cloud, because the wind carried it away, but people were breathing and eating it. What we do know is that it had all kinds of god-awful things in it. Burning jet fuel. Plastics, metal, fiberglass, asbestos. It was thick, terrible stuff. A witch’s brew.

Almost eighteen years later, we still have not determined just how unsafe the post-9/11 air quality was, yet the EPA decided to declare it safe just seven days after the attacks. Since the EPA has been ruled to have immunity from liability for its role in causing hundreds of thousands of people to breathe in cancer-causing toxic dust, the victims would have no recourse if Congress never reopened the VCF to compensate those who are diagnosed with latent conditions caused by their exposure to 9/11 toxins.

Congress did the right thing when it opened the VCF to people like James Zadroga, Luis Alvarez, and Raymond Pfeiffer. It was a subtle acknowledgment that the federal government acknowledged its role in spreading misinformation and endangering its citizens. It is time for Congress to do the right thing again by permanently authorizing and fully funding the VCF.

Thank you again to Committee Chair Miller and Council Members King, Moya, Dromm, Adams, Ulrich, and Louis. for allowing me to submit testimony, and for holding this hearing and for introducing the resolution calling on Congress to pass, and the President to sign, the Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund Act.

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