February 2004

EXCERPTS FROM ORAL DEPOSITION OF MICHAEL MOONEY

Superior Court of New Jersey Law Division - Hudson County Docket No. HUD-L-288-03

Stevens Institute of Technology, Plaintiff, vs. Ronald Hine, Aaron Lewit, Fund for a Better Waterfront, Inc., and John and Jane Does 1-10, Defendants.

Monday, January 12, 2004

Page 46

A. The reason I got involved in this in the first place is because my two children attend the Hudson School, in Hoboken. I went down to pick up my son from a soccer field down near Stevens one day. He was down there watching a soccer game going on for his school and 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.

I picked up my son, I went to Hudson School. I told the physical education department there that I didn’t think they should take the children down there anymore for physical education activities because it was a hazardous site.

I then, knowing that Aaron was involved with some of the environmental groups in the community, I spoke to him and I said, do you know if they have the proper permits in place down there, because I was down there watching them drill and they are not watering the site. He asked me why I should be concerned about that and I said because the rock they are drilling is loaded with asbestos.

That’s how I became involved with this. It was out of personal interest for my own children’s safety.

Page 50

A. As a geologist, and a lot of the course work I do and that I teach is about the geology of the New York metropolitan area, and I know that area. That part of Stevens is on a major metamorphic facies series that there is a large portion of it is a metamorphic rock called serpentinite, which is a rock that is rich in asbestos.

I know this because I take students on field trips throughout the New York metropolitan area and one of the sites that I’ve taken them to is that site, because the rock is exposed there. The same rock is also exposed all over large portions of Staten Island, and one of the things we talk about is the hazard of some of this type of rock and the measures to be taken if you’re dealing with this type of rock.

Page 51

Q. What about the hazardous nature or nonhazardous nature?

A. That left undisturbed, the rocks pose no hazard; that drilling and blasting of these rocks can be very hazardous if the area is not kept wetted down so that the dust particles cannot enter the atmosphere. And in the case where this type of work is being done, there is supposed to be air quality monitoring and sampling done continually, and any time the level rises above a certain level, it should be shut down.

Page 60

A. . . . I spoke to our director and our recess staff coordinator and told them they were not to take the children from our school over to any of the parks over by Stevens until further notice.

Page 61

Q. And tell me the sum and substance of what was said.

A. Just that I was concerned about what was going on over at Stevens and the possible health hazard that was in that area. And until we found out if the proper measures were being taken over there, that they should not be in that area because of the dust from the blast site was being carried all the way over as far as that area.

Q. Was the dust carrying over to the fields that your students used?

A. Yes.

Q. How do you know that?

A. Because I went around with scotch tape and scotch taped some of the cars in the area and brought it back and looked at them under a polarized light microscope to see if, in fact, there was asbestos dust samples and there was.

Page 62

Q. Did the students of the charter school actually stop using the facilities?

A. Yes, they did.

Q. These are outdoor parks?

A. Yes. The only park they stopped using was the one near Stevens. They continued to use Church Square Park because I found no evidence of asbestos contamination in that park.

Q. How long did they stop using that park?

A. Probably, six months.

Q. And was that – well, whose decision was it to stop using that park for six months?

A. The director’s.

Page 64

Q. Other than limiting their use of this park near Stevens, what other precautions were taken?

A. That they did not go anywhere near the Stevens campus facilities and, as a matter of fact, what we told the teachers and the students is that they were to stay off anything east of Washington Street. They were to stay out of that area.

Page 65

Q. And were you the one who selected Washington Street as the place, as the dividing line?

A. Yes.

Q. And what was that based on?

A. Based on the prevailing winds in that particular neighborhood and the type of building structures and the extent of where I found asbestos.

Page 71-73

Q. When you spoke to Mr. Lewit about the asbestos issue, did he already know about it?

A. No, he did not.

Q. What was his reaction?

A. He was a little shocked at first and asked me if I was sure of this and I said yes, I am. He said, can you give me any definitive evidence.

I said – I told him I was not going back to the site, I said, but if you were to scotch tape – I gave him a few glass slides. I told him take a piece of scotch tape and simply stick them on any surface he saw dust on and then put it onto a slide, I could identify whether it was airborne asbestos. And if he could possibly grab a piece of the rock if any of the rock was laying around, I could further break that down and look for asbestos in the mineral samples within the rock.

He brought me back, I don’t remember, two or three slides with scotch tape taped to them and one piece of greenish colored metamorphic rock, which was very friable. Friable means it will break apart very easily.

I looked at the samples on the slides, on the polarized light microscope. Typically if I do this type of analysis I used a petrographic microscope. I do not have one of them in my lab.

I do have a single polarized light microscope, but even under that I can identify asbestos.

I sent the rock sample itself to City College to a friend of mine to run an x-ray fluorescence and, in fact, the rock was lizardite. Lizardite is also a metamorphic rock that is rich in asbestos, just a different variety of asbestos. There are a number of different types of asbestos.

Page 73

Q. What precautions can be taken with regard to or could have been taken with regard to the blasting?

A. If there is constant air quality monitoring, air quality. When the levels of asbestos in the air rise above a certain level, the activity ceases. The site should have been watered down continuously.

There should have been sprinklers on the entire site during drilling, blasting. Any material removed from the site should have been put into a specialized containment area to prohibit the escape of any asbestos that might have been released during the excavation process.

Page 75-76

Q. And yet you felt comfortable telling Mr. Lewit that there was an environmental hazard at the site?

A. That’s correct, because 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.

Page 77-78

Q. Why did you advise the director and the faculty not to use the park near Stevens if you hadn’t taken any slides yet?

A. Because I know what the prevailing wind patterns are and I know how far asbestos will travel on the winds. And the fact that it goes to the area, many cars around that area were covered with dust and it looked like they came from that site and it looked to me that asbestos was probably present in the air.

A. . . . I simply looked at the cars and could see that there was a fine coating of dust on many of the cars that were parked there.

Page 92

Q. Do you mean that in terms of a health hazard it doesn’t matter what type of asbestos it is?

A. There is one type of asbestos that is less medically troublesome than others, but all asbestos has been proven to be a health hazard.

Q. And from your knowledge of serpentine rock, which type of asbestos is typically found in serpentine?

A. A type of asbestos called chrysotile, C-H-R-Y-S-O-T-I-L-E, which is the asbestos that was commonly used for insulation material.

Q. Is that the more or less hazardous?

A. That’s the less hazardous.

Q. Is the more hazardous type of asbestos found in serpentine rock?

A. Yes, it is.

Page 93

Q. What did you determine from looking at the samples?

A. 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.

Page 93-95

Q. How did you know that the slides contained asbestos?

A. Because asbestos under a polarized light has a very characteristic look to it.

Q. Can you describe it?

A. Long, needle-like crystals with what we call truncated ends on them, very sharp, cutoff ends on them.

Q. That’s what you saw?

A. Yes.

Q. Do you have any doubt that that was asbestos that you saw?

A. None whatsoever.

Q. How is it that you are quantifying the amount of asbestos in the samples?

A. Because that is something that I teach when I teach optical mineralogy courses. That is something I teach the students, a technique to do to be able to look at a slide and quantify the amount of any particular mineral that’s on a slide.

Q. How is it that you actually go about identifying asbestos?

A. In microscopes, the field of view is divided into quadrants. Usually what we do is target one quadrant, usually as a 40X magnification, which is what I looked at these slides at and you simply try to count the estimated number of crystals and the particular type in a quadrant.

Q. Did you actually count the asbestos fibers?

A. I didn’t count them. I’ve done this so many times and have taught this course so many times that I can look at a slide and fairly accurately tell you what the mineral content is of any given mineral in that slide. That this is my field of expertise. . . . it doesn’t take me more than a few seconds to tell you and give you a percentage of any given mineral on that slide.

Page 100

Q. Well, did the results of your analysis confirm your belief that this was a health hazard going on?

A. Yes, it did.

Page 102-103

Q. Tell me about the samples you took.

A. I took, I think, two or three samples right near the park and I took some on Washington Street. I took some on Church Square Park. . . . I wrote on with a pen where had taken them from, went back and looked at them and threw them away. I found there was no asbestos on Washington Street, found small traces of it in the area, probably around less than ten percent, around the park that I had told them to keep the students away from, and I found none in Church Square Park.

Page 104

A. Okay. Asbestos is dangerous because it is needle-like fibers that embed themselves in lung tissue. And exposure to asbestos for some people causes no health hazard whatsoever, because they are not prone to producing the type of keloids and other forms cancerous tissue that can cause serious damage.

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. . . .

Does it pose additional risk to people? Other people, yes, it does.

Page 105-106

Q. And yet you told Mr. Lewit that you were not comfortable going down to the blast site and collecting your own samples; is that correct?

A. That’s correct.

Q. Why is that?

A. Because the levels of asbestos down there were much greater. I could have brought them back with me after getting them on my hair or my clothing.

Page 111-112

Q. What types of asbestos was it in your samples?

A. There were three or four different types. In the microscope, when I did the microscope analysis I cannot distinguish which type there were. It wasn’t until I sent the samples to the college that I got a more definitive analysis and in the sample was chrysotile, actinolite, A-C-T-I-N-O-L-I-T-E, and tremolite, T-R-E-M-O-L-I-T-E.

Page 121

Q. When he says lizardite [sic], that means –

A. Lizardite is a rock that contains certain types of asbestos in varying amounts. When geologists name rocks, the names are based on the specific mineral content within certain ranges.

Q. Okay. In terms of the hazard, the nature of asbestos, where does lizardite fall?

A. Lizardite is full of the types of asbestos; tremolite and actinolite that are high health hazards.

Q. High?

A. High health hazards.

Page 122-123

Q. Did you research that to find out what the percentage of asbestos is in lizardite?

A. Yes, I did. . . . The total asbestos in that rock sample was about 85 percent.

Q. And how do you know that?

A. Because by definition, that’s what lizardite is. It has – the composition of the rock is about 85 percent asbestos. I think it’s 65 to 85 percent or something like that.

Page 128

Q. Did he [Aaron Lewit] ever ask you whether the asbestos that was present as a result of the excavation presented a health hazard?

A. Yes, he did.

Q. And what did you say?

A. Yes, it does.

A. It was after he – actually, after we did the analysis on the first piece of rock and it came back lizardite [sic]. I told him that was definitely a rock that contained hazardous asbestos.

Page 132-133

Q. Mr. Mooney, did you ever tell Mr. Hine or Mr. Lewit that the asbestos caused by the blasting at Stevens was a public health peril?

A. Yes, I’m sure I did.

Q. Do you remember using those words?

A. I don’t remember the exact words I used, but I indicated to them that I felt what was happening down there definitely caused a health risk to the community, yes. . . A lot of it was over the phone, that I expressed over the phone also to Mr. Hine that it was a health hazard based on what the findings, based on the reports, what they had said.

Page 135-136

Q. So, as you sit here today, you don’t know how much of a hazard this generated?

A. No, I do not know how much of a hazard. Do I feel there is a health hazard? Most definitely.

Q. How do you know?

A. Because the amount of asbestos that was within the area, within the rocks, it’s almost impossible to be – 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.

Some rocks that contain asbestos, the crystals are so large it’s almost impossible to get them airborne, so they don’t tend to be a hazard. The fact that these crystals were so small they were almost impossible to be differentiated under a standard petrographic microscope and instead the only definitive indicated by florescence analysis shows that these rocks do pose a significant health hazard because of the size and the type of particles that were contained in them.

Page 136-137

A. I felt based on the analysis that I had seen and what I had observed that yes, in fact, there was a health hazard. The fact that I had found particles of asbestos several blocks away and the size of the particles that yes, there was a health hazard.

Page 139

Q. Did you urge Mr. Lewit not to let his son play little league because of the asbestos?

A. I told him to keep your kids from that area, yes.