Indecent Exposure

Dave Knutson must have looked out of place at the Aspen Correctional Facility in Phoenix, compared to the inmates and corrections officers working on renovations at the facility. The inmates wore their dirty prison blues, covered with the dust and grime of the work they were doing. The officers wore their uniforms and badges. Knutson, however, was in a moon suit, the protective clothing and respirator required for dealing with hazardous materials.

But to one prisoner, 29-year-old Armando Gutierrez, Knutson looked like the answer man.

He showed Knutson, who was talking to one of the officers, a crumbling chunk of insulation.

"Can you tell me if this is asbestos?" he asked Knutson.
It was May 16, 1996. Gutierrez was at Aspen for a felony drunken-driving charge, working as part of an inmate-labor crew that was renovating parts of the facility. Knutson was there to do an asbestos abatement for the Arizona State Hospital, the campus where Aspen is located.

Knutson told Gutierrez he'd have to get the sample tested. After getting permission from a corrections officer, Gutierrez handed it over.

Gutierrez and other inmates had worked on renovations at Aspen for months. They'd been tearing down and rebuilding parts of the aged facility, even sleeping in one of the dorms they worked on. They'd spent hours in crawlspaces, tearing decrepit wrapping away from pipes and digging through crumbling insulation. All of the men had experience in the construction trades. And they suspected the insulation--which easily powdered into clouds of dust which surrounded them constantly--was not safe.

The corrections officers reassured the inmates, and said the prison facility had been checked out with no problems. But the officers were worried, too, the inmates could tell. Everyone kept working. There didn't seem to be any other options.

Until the technician called back with the test results, the same day that Gutierrez gave him the sample: The insulation--the same material the officers and inmates say they'd been around every day for months--was 22 percent asbestos, a potentially deadly carcinogen. Even a tiny shred of the once-common building material can cause a slow, painful death, either by tumors or by lung disease.

With that result, inmates, officers and employees at Aspen found confirmation of their worst fears; that asbestos-laden dust had been falling on them like snow at the ski hill which shares the same name.

Nearly 200 inmates and staff have since filed a potential multimillion-dollar liability lawsuit against the State of Arizona for exposing them to asbestos. The plaintiffs argue that the Arizona Department of Corrections knew about the hazards in the aged facility, but ignored proper safety procedures.

Some of the plaintiffs contend this has already led to health problems; others are merely waiting to see if the time bombs ticking in their chests will go off.

One plaintiff, a former ADOC employee who asked not to be named, says the incidents at Aspen have been on her mind constantly.

"I worry about it all the time," she says. "I worry about what was done to me, what I was exposed to, and what I might have brought home on my clothes, what I could have exposed my children to."

In March, asbestos levels in some places at the facility--which is still used by ADOC--were as much as 26 times the legal limit, according to an expert hired by the plaintiffs to conduct an inspection. A veteran ADOC captain says the department has broken the law in the past and will keep doing it.

The Aspen Correctional Facility, located at the intersection of 24th Street and Van Buren in Phoenix, is old. Built around 1920, the facility has been used by the Arizona State Hospital for much of its existence. In 1983, however, the Arizona Department of Corrections leased Aspen to house felony DUI offenders.

But by September 1995, the building presented problems--plumbing had to be fixed, wiring needed repair and offices had to be renovated. Fortunately, ADOC had a qualified labor pool on-site, able to work for pennies an hour: the inmates. A number of men at Aspen were tapped for a work crew assigned to do renovations at the prison.

Bill Marczak, a 56-year-old contractor, was one of them. Marczak was imprisoned for driving drunk while his license was suspended from an earlier DUI. He has since been released and is living in Tucson. At Aspen, he figured he'd rather work on the renovations than in the kitchen, his first assigned duty at the prison. He and a group of six other men started on the plumbing and wiring work.

"We had to replumb the whole place, rewire the whole place, because they were way under code," he recalls. "And that's basically where we were in the crawlspaces."

The Arizona Department of Corrections refused to comment for this article. In court documents, its attorney minimizes the scope of the renovations, calling them "minor."

Marczak says he and the other inmates wondered whether the insulation in the crawlspaces was asbestos. They asked staff about it, but didn't get any answers.

"We discussed it, and I'm fairly familiar with it, but you're not sure, because they've got that celutate . . . that took the place of asbestos; it's a white, fibrous, powdery stuff, and it looks a lot like it," he says. "I mentioned it to Sergeant [Brett] Murphy, and, at that time, he kind of blew it off."

But the inmates' concerns caused the officers to start asking questions. Administrators dismissed them, according to an affidavit filed by Captain Stewart Poole--a plaintiff in the suit, as well as former chief of security at Aspen and a 20-year veteran correctional officer.

"When officers and inmates raised their concerns with the administration, we were either told not to worry about it or that there was no asbestos present," Poole said.

The plumbing and wiring work continued for several months, with men in the crawlspaces almost every day.

One inmate, Bob McCaleb, had a bunk directly under one of the crawlspaces and complained about the constant dust on his bed.

"My bunk would have anywhere from a quarter-inch to half-inch of soot on it every day," remembers McCaleb, who has since been released. "That junk was in the vents, it would blow dust. . . . I was coughing constantly, my nose would bleed."

More inmates were added to the work crew, bringing it to 15. The actual demolition and construction work began around January and February. And that's when the dust really began to fly.

The crew tore out rooms to make an access hall, built new offices and converted cells. Both staff and inmates worked in the middle of the renovation, Marczak says.

"Sergeant Murphy's office was in there, the computer room was in there, and kind of a coffee lounge was in there," Marczak says. "When we started tearing out their offices to get into that back room, you should've seen that place, it looked like a dust cloud was coming right through there. It was just loaded. They were sitting there, just breathing the stuff like everybody else."

Poole's affidavit also notes the dust.
"Many times they [the inmates] would be covered with dust when they finished working. Much of the facility at Aspen would be covered with this same type of dust. It would fall from the ceilings and crawlspaces and get into the air and the food of everyone at Aspen," he said.

At one point during the work, the inmates even lived in the dorm they were renovating, Marczak says.

At no time were any of the inmates or staff ever given protective suits or respirators, despite their worries about asbestos exposure.

Bill Marczak says the crew was repeatedly told the facility had been given a clean bill of health. But that apparently didn't ease anyone's mind. As the inmates worked their way through the construction, they became more and more certain that the material they were shredding was asbestos.

An ADOC report, dated May 12, 1996, captures one corrections officer's conversation with an inmate.

"An inmate asked if I would work around asbestos," the officer wrote. "He states asbestos is all around the attics, walls and pipes of Aspen, and he is very concerned about it. I've talked to two inmates . . . the first is scared to be around asbestos and both are afraid they will 'go to the hole' if they say anything."

Four days later, inmate Armando Gutierrez gave the piece of asbestos to the worker from Spray Systems.

"I was talking to Dave [Knutson, the Spray Systems worker] and Gutierrez came up and asked a question about asbestos," Sergeant Brett Murphy wrote on an ADOC report. "Dave asked him if he could get a sample. Gutierrez came back with a sample. [Name deleted on report] stated, 'He would bet his right nut that it is asbestos.'"

At the bottom of the report, Captain Randall Hoover adds, "Information passed on to Mr. Adams. Sgt. Murphy received call from 'Dave' at 1100 hrs. who said it was tested at 22 percent."

Despite what they had been told, inmates and staff now had confirmation of their worst suspicions--they had been working unprotected around asbestos.

In response, ADOC performed a "limited asbestos survey" of Aspen. The department hired an environmental engineering firm, Law/Crandall and Associates, to check out the facility.

On May 22, Jim Adams, the assistant deputy warden at Aspen, wrote a memo again promising that the facility was safe. No asbestos was found in the air during testing, he wrote, although asbestos was found on some of the pipes and in some floor tiles. Those areas needed to be cleaned up, and Adams hired Law/Crandall and Spray Systems to do an abatement.

"This needs to happen as soon as possible," Adams wrote, "as the department had the building already allocated for inmate residents, and would like to complete the renovation as soon as possible."

Law/Crandall did not return calls for comment.
But in a September 18 letter to the Arizona Division of Occupational Safety and Health, the state's worker-protection agency, Adams said the cleanup was a success.

Adams told ADOSH there had been five asbestos-abatement operations at Aspen since "the first time I became aware that asbestos was present at the facility."

However, internal ADOC documents show that Adams had been aware of asbestos at the facility for months before any cleanup operations.

As early as October of 1995--about a month after the start of the renovation--the staff was trying to get answers about asbestos.

In a memo to Adams, Captain Poole asked for guidance on proper handling of asbestos. Poole had found a footnote in an earlier memo from ADOC's facilities activation bureau which referred to the presence of asbestos at Aspen.

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.

In his affidavit, Captain Poole says more people could be exposed to asbestos during future renovations. He says he believes ADOC will continue exposing people to risk regardless of the rules.

The regulator watchdogs aren't exactly leaping to enforce the law in this case. Aside from this lawsuit, no investigation or enforcement action is in the works.

ADOSH at first dismissed complaints from the inmates because inmate labor wasn't part of its jurisdiction. It then dismissed a complaint from the staff because of the letter that Adams wrote which said that there was no problem. After other letters came back challenging Adams' account, ADOSH decided it would be too much trouble to conduct an inspection because so much time had passed, according to the agency's files.

The Maricopa County Division of Environmental Services is supposed to enforce asbestos regulations, a responsibility handed down by the federal government to local agencies. But the person who dealt with ADOC during the renovations has since left the county, and there are gaps in the division's files. Because of this, the county has no idea if laws were followed at Aspen or not.

The Environmental Protection Agency won't say whether it is conducting a criminal investigation of the Department of Corrections.

Although the state concedes the presence of asbestos at Aspen in the past, officials, in a response to the lawsuit, still deny anyone was ever exposed to the stuff during the renovation. As for the inmates who did the plumbing--even though there was asbestos wrapped around some pipes--the state argues it just doesn't know if any of them were exposed to asbestos or not.

Since the enforcement of asbestos law has now moved into the private hands of the plaintiffs, it could add up to a significant public cost. In the federal suit, the plaintiffs are asking for $25,000 per violation per day--for a period that covers about nine months. In the state suit, damages are unspecified.

Even if the plaintiffs lose, the cost of the chest x-rays and checkups the inmates are supposed to be getting is still on the taxpayers' bill--as is the cost of the time spent defending the lawsuit.

In the federal suit, the plaintiffs only have to prove that the state violated the law. To succeed in state court, however, they have to show they were harmed by those violations. That could be trickier.

While former inmates Marczak and McCaleb both say they've experienced health problems since leaving Aspen, the plaintiffs are not yet claiming any physical harm resulting from asbestos exposure in the state suit. The main damage they can claim now is "emotional distress"--the fear the state has caused them if it is proven they were negligently exposed to a health risk. To win damages, the plaintiffs have to prove they have a good reason to be afraid.

Compared to the science-fiction varieties of disease today--AIDS, infectious proteins, flesh-eating bacteria, the Ebola virus--it might seem almost quaint for the Aspen plaintiffs to be worried about asbestos exposure. Asbestos is in almost every building constructed in this century before the 1970s--it is a lightweight, strong, nonflammable mineral once used for insulation. But for the past 25 years, asbestos has been well-known as a health risk. By any measure, it's supposed to be a worry of the past.

But asbestos is still a clear and present danger, according to Steve Hayes, a professional engineer and certified industrial hygienist. Hayes has worked as a consultant on asbestos removal for 16 years, and his professional knowledge has also been deepened by personal experience--he lost a friend to mesothelioma, an asbestos-related cancer.

When crushed or broken, asbestos flies into particles so fine as to be invisible to the naked eye. Once inhaled, the particles cut into the soft tissues of the nasal passages, throat and lungs, Hayes explains.

"The thing that makes asbestos so much of a health risk is that the individual fibers . . . are small enough that they can be inhaled into the very deepest interiors of the lungs. . . . They're very thin, very long and very sharp," Hayes says. "You've basically got this little-bitty needle in your lungs, and people who've been exposed to a lot of it have millions of them."

Those needles scar the lung tissue, causing asbestosis, which gradually reduces one's ability to breathe, Hayes says. To get an idea of what asbestosis is like, Hayes compares it to breathing through a coffee stirrer.

The asbestos needles also cause cancer. Asbestos causes a lung cancer similar to the lung cancer caused by smoking, Hayes says. Asbestos has also been linked to cancers of the throat and stomach. In rarer cases, it causes a form of cancer called mesothelioma, where tumors infiltrate the lining of the chest and abdomen.

"There is no known cure; if you have mesothelioma, you're probably going to die, and you're probably going to die an agonizing and painful death," Hayes says. Unlike lung cancer or asbestosis, mesothelioma can be caused by extremely low exposures to asbestos. The tumors spread quickly throughout the body. Hayes says his friend described it as "being squeezed to death from the inside."

"It's the disease we fear the most when we talk about exposure to asbestos," Hayes says.

The kicker is that it takes 20 to 30 years for asbestos-related diseases to emerge. Most of the plaintiffs in the Aspen case will be senior citizens when--if--they ever know for certain that the "needles" inside them are fatal. That's a lot of mornings to wake up wondering if another number gets added to the cancer statistics.

That possibility has been in Armando Gutierrez's mind often since he handed over the crumbling chunk of asbestos at Aspen last year. Aspen has been a big part of Armando Gutierrez's life since 1995. He was in and out of the facility twice while the renovations occurred. Currently back in custody on a parole violation for assault, Gutierrez has a lot of time to think about what might be inside his body, silently assaulting him. He gets chest x-rays every six months and regular breathing tests. Like the other plaintiffs, those tests will be routine for the rest of his life.

"I couldn't even count, I was in and out of it so many times," Gutierrez says in an interview from the state prison facility at Douglas. "[It was] in the sheets, blankets, the food, you're eating it, sleeping it, breathing it. I think it's something to really be concerned about."

Even if Shanker and Feder cannot get a jury to feel much sympathy for inmates like Gutierrez, there are still the prison employees who say they were exposed as well.

Says one former ADOC employee, "I hope it never happens to anybody else. I hope that the state is smart enough to follow their own policies next time."

While the state will question the actual harm the plaintiffs suffered, other people question inmates and ADOC staff working together to sue the state.

In a June 26, 1996, memo, written after the lawsuit was filed, Aspen's new security chief, Captain Randall Hoover, complained about a "very deep rooted 'click' [sic] that is not supportive of the present administration."

"I have concerns about violations of the Code of Ethics and Staff/Inmate relations policy," Hoover wrote. He questioned whether inmates and staff had passed information between each other in order to file the suit. And even while he wrote that administrative action should not be viewed as retaliation against the plaintiffs, Hoover gave one corrections officer a negative performance evaluation for filing the suit, rather than "follow[ing] the chain of command to resolve issues."

If the administration isn't happy with the lawsuit, the inmates and staff aren't thrilled, either.

Another plaintiff, an ADOC employee who fears retaliation if named, says no one--not the inmates, not the employees--wants to be in this situation. But, he says, it wasn't up to them.

"Unfortunately, we share something. We're all on the same ship and, unfortunately, we sink or swim together.


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