By Ray Stern
By New Times
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Poole said he and his staff had neither the skills nor knowledge to deal with the material.
In an apparent response to Poole's memo, on October 30, 1995, Adams wrote to ADOC's facilities bureau asking for "all the information that you have available on the locations of asbestos in the Aspen facility." Adams also wrote that he knew "there is asbestos in the tile in some of the bathrooms."
Whether Adams got an answer or not, the renovation continued--in apparent violation of federal law.
By federal law and ADOC's own policy, a survey should be done whenever there is reason to suspect asbestos is in a building on which renovation will have an impact. This means ADOC should have inspected Aspen before the renovation started or, failing that, when Captain Poole wrote his October memo to Adams.
In court documents, the state now admits that, "over the years, asbestos had been found in various parts of the Aspen facility." As far back as 1985, the state says, bulk samples taken from Aspen did test positive for asbestos and some asbestos pipe wrapping was removed. It also admits that inmates did plumbing work and "there were pipes wrapped in asbestos at the Aspen facility."
Even if ADOC had somehow just overlooked the presence of asbestos at the facility until Armando Gutierrez handed over physical evidence in May 1996, the agency still didn't seem to change how it dealt with the problem.
Adams also told ADOSH no employees at Aspen were involved in the cleanup. "All abatement operations at the Facility were performed by certified contractors under the supervision of certified consultants," Adams wrote, using bold type to emphasize his point.
But ADOC employees and inmates say that's not true. Both the inmates and staff were kept at work during the testing and the cleanup. Marczak says he and other inmates were still present while Law/Crandall did its testing.
"That next day, the people that did the [testing] came back in. . . . And of course we had all this dust flying from all the walls and ceiling we're taking out and they put their machines upstairs, downstairs, everything," Marczak says. "And they had their little hand-held [machines] and they're walking around near the openings and all I can hear is, 'Oh, shit,' and 'Damn.'" Marczak says the testers wouldn't even put their heads into the crawlspaces where inmates had been working for months.
The inmates worked during the cleanup, Marczak contends. Even after the cleanup, he and the other inmates kept encountering asbestos, he says.
"They said it's all clean now. The asbestos is all taken out and you can go back to work," Marczak remembers. "So we go back in there and we start working again, and right there, near the main entrance, there's the main shower room and toilet room . . . and I poked my head up in there, and here all that damn asbestos was all over that place."
ADOC didn't just have inmates working; employees say they were kept on the job as well.
"Jim Adams lied in his letter and neglected to tell the whole story," an Aspen maintenance employee named Eoin Bailey wrote in a letter to ADOSH. Four other employees--including Adams' former secretary--wrote ADOSH contradicting Adams' statements, saying that staff was in the building during the cleanup operation.
The abatement was also too late to stave off exposure for all the people who had for months worked on the construction and demolition.
"I have no doubt that I have personally been exposed to dangerous levels of asbestos" because of the renovations, Captain Poole later said in his affidavit.
At that point, inmates and staff went outside the prison walls for help.
On May 20, 1996, Pat Gerkin, then the girlfriend of one of the inmates, wrote the American Civil Liberties Union asking for an attorney. About the same time, Armando Gutierrez's father began calling around for an attorney.
The employees at Aspen began their own search for counsel as well. Talking to one another on smoke breaks, before work and during lunches, officers and staff passed around the name of Howard Shanker, an attorney they'd found in the Yellow Pages.
In July 1996, after interviewing staff and inmates, Shanker filed claims with ADOC. In September, attorney Bruce Feder and Shanker, working as co-counsel, filed two separate lawsuits, one in state court and one in federal district court. The federal court suit alleges that the inmates' civil rights and the federal laws governing asbestos exposure have been violated. The state court suit alleges negligence on the part of state and infliction of emotional distress. Over time, more inmates and staff joined the state suit, bringing the current total to 171. (Feder and Shanker declined to be interviewed for this article.)
In preparation for the lawsuit, the plaintiffs' attorneys hired an expert, Robert Hutzel, an industrial hygienist with 25 years' experience, to inspect the facility. The state at first refused to allow Hutzel to go to Aspen. But, after a federal court order, Hutzel inspected the facility and found that Aspen still posed a risk, even after it was supposedly cleared.
Hutzel found asbestos levels 26 times the OSHA permissible limit. And that was in tests taken when the facility was quiet; no demolition work or other activity was going on that might have disturbed the asbestos and released it into the air.