Experts who examined samples from the excavation site at Stevens Institute found high levels of asbestos in the serpentine rock and in the dust resulting from drilling and blasting.
(February 2004)
On January 15, 2003, Stevens Institute filed a defamation lawsuit against the Fund for a Better Waterfront. The university has described this litigation as an opportunity for them to clear their good name and prove that there was no hazard posed by the excavation of 35,000 cubic yards of asbestos-rock at the Stevens campus in 2002. Currently on Stevens Institute’s website, a press advisory reads, “Hine and Lewit [FBW’s Executive Director and President] have thus far been able to exploit the public’s natural and understandable fear of asbestos to obscure the evidence, which plainly demonstrates that Stevens did not endanger the public in any manner.”
Expert testimony solicited by Stevens’ own attorneys as part of this lawsuit, however, is contradicting Stevens claim of no health hazard. On January 12, 2004, Stevens attorney Charles M. Fisher of Windels, Marx, Lane & Mittendorf deposed Michael Mooney, a geologist who provided expert advise to FBW’s Hine and Lewit. Under oath, Mooney stated, “I drove past the site where they were doing the drilling and blasting and that was the first time I was aware such a thing was going on. When I drove past there, I realized what they were doing and what they were doing was very dangerous.”
“[Aaron Lewit] asked me why I should be concerned about that and I said because the rock they are drilling is loaded with asbestos,” according to Mooney. Mooney was familiar with the problem of asbestos in the serpentine rock because he has taught geology at City University of New York and has led field trips to the outcroppings of this rock at Castle Point in Hoboken and throughout Staten Island.
Mooney testified that, “when I drove by there, they were actively drilling. The air was full of dust and there was no watering going on at that point in time. . . many cars around that area were covered with dust . . .and it looked to me that asbestos was probably present in the air.” As a result of his observations, Mooney recommended to two local schools, the Hudson School where his children are enrolled and the Elysian Charter School where he teaches, that they avoid the soccer field and parks adjacent to the work site, “because it was a hazardous site.” For the next six months, Elysian Charter School did not allow its students to go to Stevens Park or anywhere else near the work site.
Stevens has maintained from the beginning that only trace amounts of asbestos (less than 1%) are contained in the serpentine rock. But Mooney found high levels in the samples that he examined. He had Mr. Lewit take dust samples adjacent to the excavation area and collect a rock sample. After viewing Lewit’s samples under a microscope, Mooney described what he found: “From the three samples that I saw, all three of them contained asbestos. One of them, an asbestos sample was probably better than 50 percent of the slide; the other two, it was 25 to 30 percent of the slide. . . I took the rock sample that he had given me and simply with my fingers rubbed some of the powder off onto a slide and looked at that and that was probably 85 percent asbestos.”
In the deposition, Mr. Fisher asked, “Well, did the results of your analysis confirm your belief that this was a health hazard going on?” Mooney answered, “Yes, it did.” Mooney went on to explain, “Asbestos is dangerous because it is needle-like fibers that embed themselves in lung tissue. . . Other people are very prone to this type of development, so even the smallest particles of the asbestos being inhaled into the lungs can immediately cause serious health risks.”
Fisher then asked, “Did [Aaron Lewit] ever ask you whether the asbestos that was present as a result of the excavation presented a health hazard?” Mooney replied, “Yes, he did.” Fisher: “And what did you say?” Mooney: “Yes, it does. . . after we did the analysis on the first piece of rock and it came back lizardite. I told him that was definitely a rock that contained hazardous asbestos.”
Mooney went on to explain, “part of what happens with asbestos is the size of the particles that are generated during this type of operation is what determines whether or not it’s hazardous. The particles in these rocks tend to be less than 125 microns in size, which are small enough to be airborne particles, which makes it a very hazardous type of rock.” Mooney also explained that although all forms of asbestos are considered hazardous, lizardite contains both the less dangerous chrysotile as well as the more hazardous actinolite and tremolite.
Fisher asked, “Did you urge Mr. Lewit not to let his son play little league because of the asbestos?” Mooney replied, “I told him to keep your kids from that area, yes.”
(See excerpts from the deposition of Michael Mooney.)
On November 20, 2003 Stevens attorney Charles M. Fisher conducted a deposition for the Assistant Director of the Hudson Regional Health Commission, Gary Garetano. Mr. Garetano’s testimony provided evidence that health officials were concerned about the problems at the excavation site. In his deposition, Garetano stated, “I’m not certain whether local officials were fully aware of the project and on the same page with what needed to be done out there and how closely it needed to be monitored. I’m not certain that adequate amounts of wetting alone would ever be sufficient for this type of blasting. Activities concerning wetting, you’re wetting the surface, and when you’re blasting you’re blasting deeper materials.”
Garetano described the operation as “a nightmare.” When Fisher asked him if the construction activities were a health hazard, Garetano responded, “I consulted with the [Hoboken] Health Department on it and I certainly expressed my concerns . . . that the potential for inhalation of asbestos existed and that that’s not a good thing.”
Later in his deposition, Garetano stated, “[T]here was clearly asbestos in the rock that was being blasted. . . . And there clearly was the potential for release of asbestos from the rock. . . .the standards are not an absolute that there’s no hazard from exposure to asbestos. . . I don’t think there’s anyone in the field other than people in the asbestos industry who would say . . . it’s okay that you’re exposed to asbestos.”
Garetano took samples from the white veins running through the serpentine rock at the work site. A laboratory analysis found 50 percent asbestos in one sample and 65 percent in the other, similar to what geologist Michael Mooney found in several of his samples.
Stevens lawsuit claims that statements of Hine and Lewit were made with reckless disregard for the truth. But according to Garetano’s testimony, “I determined that the concern regarding asbestos, the presence of asbestos at the site, was valid and a concern regarding potential emissions of asbestos were valid.”