Document 6wYnqLOQ9aoGzOeDY3KvjQBa9

IN THE CIRCUIT COURT 1 TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST; CLAIR COUNTY 3 FRANCES E. KEMNER, et al., Plaintiffs, 4 5 vs. MONSANTO COMPANY, 6 7 Defendant. > > > > ) NO ) ) ) ) Before the HON. RICHARD P. GLDENHERSH, Judge 8 9 10 n 12 j , < 13 JURY TRIAL 14 April 16. 1985 15 16 17 18 APPEARANCES: 19 MR. REX CARR and MR. JERRY SEIGFREID, Attorneys at Law Appeared on Behalf of the Plaintiffs 20 MR. JOHN R. MUSGRAVE and MR. JOSEPH NASSIF, Attorneys at 21 Law, Appeared on Behalf of the Defendant 22 23 MARSHA SCHNIPPER 24 Official Court Reporter 1 INDEX 2 PHOCION PARK 3 Cross Examination.............. .................... 2 4 Clarification.................... .................. 23 5 6 7 8 EXHIBITS INTRODUCED 9 Plaintiff's No. 1302 .................. 10 10 Plaintiff's No. 1301 and 1301a ........ 11 ADMITTED 12 22 12 13 14 IS 16 17 18 19 20 21 22 23 1 BE IT REMEMBERED AND CERTIFIED that heretofore, on 2 to-wit: Tuesday, April 16, 1985, being one of the regular 3 judicial days of this Court, the matter as hereinbefore set 4 forth came on for hearing before the HON. RICHARD P. GOLDENHERS: 5 Circuit Judge In and for the Twentieth Judicial Circuit, State 6 of Illinois, St. Clair County Building, Belleville, St. Clair 7 County, Illinois, and the following was had of record, to-witi 8 9 PH0CI0N PARK. 10 resuming the witness stand having been previously sworn, 11 testified further as follows: 12 CROSS EXAMINATION (Continued) 13 BY MR. CARR: 14 Q Mr. Park, referring again to the Chart 1301 and 1301a 15 -- and I see yours has been taken -- handing you again 1301 16 and also handing you Plaintiff's Exhibit 1168, and it's turned 17 to Table 2, and that Indicates, does It not, that 2,A dichloro18 phanol that has the words DCP spill next to it had 5875 parts 19 per billion of trichlorodibenzo-p-dioxin. Do you see that, 20 sir, the first -- 21 A It has the M-O-N-S on top of It? 22 Q Yes. It's this one hare. We're down to here. 23 A Yes. 24 Q All right. And that has the trlchlorodibenco-p-dloxlt 1 at the leval of 5,875 parts per billion, does It not, 2 A I see that* 3 Q -- according to that Monsanto study? 4 A Yes, sir. 5 Q And it has the tetradloxins at 487 parts per billion? 6 A Yes. 7 Q And it has total dioxins of, if you would add those 8 up briefly,in that line of 48 -- soma '48;OOO parts :per `billior 9 of dioxins, does it not, sir? 10 A Well, let' 8 see now. Which line? 11 " Q ' Lina 1 on Table 2. ^ 12 A Well, I -- let's see, total -- adding up all of 13 the 'numbers in that first line X get 50,997. I may have -- . 14 maybe I punched the wrong number. 15 Q Wall, you probably are more correct in that instance 16 than mine, because Just the -- B-24 and 20 would be 44, 49, ii: 17 would be closer to 50,000 parts per billion than 48,000, would 18 it not, sir? 19 A Right. 20 Q Mow, that 50,000 parts per billion ofi.tdtaludloxins 21 is what, two hundred times higher than the 250 parts per billion 22 total dioxins Dr. Nalr said should be reported to the EPA? 23 Is that the -- 250, sure, it would go two hundred times hlghe:: 24 than that* wouldn't it, sir? 1 A I don't know that Dr. Hair phrased it quite that way, 2 but I guess 250 would go into 50,000 two hundred times. 3 Q Now, this Is a 2,4 dichlorophenol that was in the 4 process of being shipped when a portion of it, I forget the 5 amount, some several drums of spill were cleaned tip in February 6 of '7 9 , several drums of dirt contaminated with that spill were 7 cleaned up, but this shipment containing 50,000 parts per 8 billion of dioxin was shipped out to customers, Mr. Park, 9 according to the testimony in evidence. To your knowledge 10 was there ever a Section 8 (e) meeting held to determine whether 11 or not you should report this to the EPA notwithstanding that 12 It had two hundred times the level of dioxin that Dr. Hair 13 said to be sure in 1985 should be reported? Do you know whethe} 14 or not such a meeting was ever held, sir? 15 A Mr. Carr, that was a different product, different 16 context entirely. I don't know that it's proper to equate 17 Dr. Nalr's -18 Q Mr. Park, I don't want to get back into the use.and e: 1? posure, because the -- w e 've gone through that. Your view of 20 what is exposure is contrary to my view. Your Monsanto view 21 is contrary, and you're entitled to have that view, but now my 22 question is was that to your knowledge the subject of a Section 23 8 (e) meeting and was it ever reported to the EPA? 24 A X don't recall that.there was an 8 (e) meeting over 5 4 1 this shipment. 2 Q And my next question is was it ever reported to the 3 EPA? 4 A Not to my knowledge. 5 Q To your knowledge was the customer that received this 6 shipment, whether it was going to be Incorporated into oil well 7 additives that workers would be exposed to by just working with 8 the additive or whether or not it goes into 2,4 D or Weed-b-gont 9 to be sprayed on people's lawns. Do you know whether or not 10 the customer was ever notified that it was receiving a shipment 11 that contained 50.000 parts per billion of dioxin? !: 12 A X don't know, but I would not know whether they were % 13 or not. 14 Q The next entry there on the chart is for KB606. It 15 again is 2.4 DCP. and it was manufactured or at least tested 16 in 1982. Do you see that, sir? 17 A Yes. 66016. 18 Q And that' 8 the product described in Plaintiff's 19 Exhibit 1184 and 1184a. Do you see that in the numbers therej 20 the KB6016? 21 A Yes. I do. 22 Q And the -- do we have 1184, Jerry? Unless you 23 you can see that from there. We can use that. l 24 A Yes. 1 Q Just if you would confirm that the dioxin* including 2 the one with the caret, the CL3 totalled up to 1461 parts per 3 billion dioxin In this sample of 1982? 4 MR. MUSGRAVE: This was 1184, Mr. Carr? 5 MR. CARR: 1184, the exhibit Is 1184a right here. 6 If you want, use our copy of it. 7 A Mow there I had those figures to total 1128. Oh, 8 one minute * 9 Q Now you must not add the 17 again, because that's 10 included in the 72. n A I; did. ,.Let me take that out then. I get 1,111. 12 MR MUSGRAVE: X 1m s o r r y X didn't hear you. 13 MR. CARR: He said 1,1111 I've got it added up to 14 1461. Let's see, that would be 630, 870, 1080 and 72 would be 15 about eleven hundred -- 1150. I think we accept your figures, 16 and I'll modify this. 17 THE COURT: What was the number again? I'm sorry. 18 MR. CARR: I'm not sure, your Honor. I'll have to 19 add that again. 20 THE COURT: Okay. 21 MR. CARR: There's two 606's. Add this next one up. 22 I may have gotten two columns. Here's one Is 44 tri -- yes, 23 add this second column up, the replicate. 24 A Okay. Here in this, going across that second line I l get 1461. 2 Q Well, that's apparently the one that I added rather 3 than the first one. 4 MR. MUSGRAVE: May I Inquire, Mr. Park, did you add 5 the 44 under the CO3 column? 6 MR. CARR: Yes, he-did. 7 THE WITNESS: Yes, I did. 8 MR. MUSGRAVE: I would object then, your Honor, to 9 this calculation as Including an interference which is not 10 reflective of their being 44 parts per billion based upontesti- II mony with regard to the interpretation of this exhibit and 12 other exhibits. 13 THE COURT: Overruled. 14 Q This figure of 39 shouldlbe changed to 44 if we're 15 using that column, is that not correct, and the 72 should be 16 changed to 877 Now,, the next one is Sample 6018 would be on 17 the same exhibit that you have. Would you add that please,, sir 18 and -- 19 A I 'm sorry, what was that, which;one? 20 Q 6018, KB6018. 21 A All right. Yes, I get 537. 22 Q And the tridioxin -- 23 MR. MUSGRAVE2 Just a moment. Mr. Park, again are 24 you adding 27? 1 THE WITNESS: Yes. 2 MR* MUSGRAVEi Again I would object for the same 3 reason that It reflects an Interference that does not reflect 4 27 parts per billion. 5 THE COURT: Overruled. ^6 Q And that shows not more than 27 parts per billion of :7 the tridioxin and 44 parts per billion of the tetradloxin, is 8 that correct* sir? 9 A That's correct. 10 Q Along with the other figures? 11 A ~ Yes. 12 . Q And the Tank 164, the replicate sample has 57 -- 13 more than 57 parts per billion vtrichlorodlbenzo-p-dloxin* 140 14 parts per billion of the tetradloxin* and a total of 903 parts 15 per billion of dioxin* Is that correct* sir? 16 A Let me -- let's see. Okay. Including this 57 with 17 the less than sign in front of it I get a total of 1957. 18 Q All right. And the Sample KB6017 -- 19 MR. MUSGRAVE: May my objection also run with regard 20 to Tank 164 as shown on Plaintiff's 1301 as Including the 57 21 for the same reason as previously stated. 22 THE COURT: Fine. So noted. 23 Q Referring now to KB6017 it shows not more than 38 24 parts per billion of tridioxin* 65 parts per billion of the ^J I tetra for a total of 903 parts per billion of dioxin#, la that 2 correct, sir? 3 A I add up those numbers to be 903. 4 Q And handing you now Plaintiff's Exhibit 1192 -- 5 MR. MUSGRAVE: Your Honor, may I interpose the same 6 objection with regard to counsel *s representation of KB6017 agaii 7 as Including the number 38 in the tri column as an interference 8 not reflective of 38 parts per billion of the substance in the 9 -- same objection I made before 10 THE COURT: So noted. 11 MK.^MOSGRAVEr-^And it'a overruled? 12 THE COURT: It is overruled, yes. 13 Q And directing your attention to Plaintiff's Exhibit 14 1192 and the second page thereof and to the one, two, third lint 15 Kt8 , KL180Q1 and for that -- and we've mentioned this earlier 16 Hr. Park, for that c-orthochlorophenol crude that was menu 17 factured or at least tested in 1983 contained not more than 18 3.6 parts per billion of ehe trichlorodibenzo-p-dioxia and 2 19 parts per billion of the ..tetrochlorodlbanzo-p-dioxin and total 20 dioxin of 18 parts per billion, is that correct, sir? 21 HR, MUSGRAVE: If I may Just have a moment, your Hono^ 22 I've Just gotten to Exhibit 1192, and I'd like to Just check 23 this, if I might. What page are you referring to, Mr. Carr, 24 with regard to -- ''S v}_j SvVas 10 1 MR. CARR I Page 2. 2 MR. MUSGRAVB: fPage 2? 3 MR. CARR: Sample KC0.8001. 4 MR. MDSGRAVE: And, Mr. Park, did your calculations 5 again include the 8.5 and 3.6 respectively under Column CL2 6 and CL3? 7 THE WITNESS* Yea. 8 MR. MUSGRAVE: Again I would object for the same 9 reasons that those numbers are not reflective of the amounts 10 as added, and it's a misrepresentation. n . THE COURT* Overruled. ftr'~ 12 13 MR. CARR: Mark this exhibit please. (Plaintiff's Exhibit No. 1302 was marked for identi 14 fication.) 15 A I know it says -- TONNE. N.J. 0)001 FOMM IL. 1* B 16 THE COURT* I'm sorry, but there isn't a question 17 pending, Mr. Park. He will have the opportunity to ask you and 18 you can say then what you want to say. 19 MR. CARR: Would you mark this please. 20 Q I'm handing you now what's been marked as Plaintiff'a 21 Exhibit No. 1302 and ask you to look at the letter in the 22 attachments, if you would. Now, Mr. Park, you recognize the 23 letter that'.s part of this exhibit to be one that's from the t 24 Department of Health, Education, and Welfare. You recognize y ; -v; l that as a branch of the United States Government, don't you, 2 sir? 3 A Yes* 4 Q And It's that part of that department that's called 5 the National Cancer Institute, sometimes known as NCI? 6 A It does say that in the upper right-hand corner. 7 Q And do you recognize that as the same NCI that has 8 been referred to in the May of 1979 TSCA meeting that we have 9 discussed the past several days? 10 A I would assume it's the same* M Q Yes. nd Dr. Anne Norberg, ^ a t was her position in 12 1980 with Monsanto, the person to whom this letter Is addressed 13 A I -- I did know her. I cannot recall just exactly 14 what her position was. 15 Q There is attached to the letter sent to Dr. Norberg 16 of Monsanto a data sheet concerning T-4 !dichlorophenol, is 17 there not, sir? 18 A Yes. 19 MR. CARRt Offer this exhibit in evidence and ask 20 the jury -- I'd like to ask the witness some questions about 21 It while the Jury has it, your Honor. 22 MR. MUSGRAVE: Your Honor, we would object on the 23 basis that the document, which Is a letter not from anyone at 24 Monsanto, but from -- purports to be the Department of Health :,/r' 12 f'C"1 Education and Welfare, first of all, does not involve OCP or 2 OCP crude. Secondly, there1s no foundation for the Information 3 contained on the attachment, constitutes hearsay, we don't know 4 who prepared it, the basis for the preparation, th gathering 5 of the information and do not have the opportunity If we would 6 want to cross examine the author of the document* It's not 7 offered by Monsanto. We object on that basis. 8 MR. CARR: One of the purposes of this, your Honor, 9 Is to show the knowledge that Monsanto had of the contents of 10 2,4 'dichioropheno1 In 1980 and to show that this witness or 11 at least Monsanto knew that the 2,4 *dichlorophenol had the 12 constituents manufactured by others, at least In the way 13 described In this exhibit. 14 THE COURT: It will be admitted over objection. 15 MR. CARR: May we then pass it to the Jury, If it 16 please the Court? 17 THE COURT: Yes, you may. 18 (At this time the exhibit was passed to the jury.) 1? Q Mr. Park, you mentioned yesterday or -- and earlier 20 that the government does test chemicals on its own, that they 21 have employees or chemists that do that, and that they would 22 know, because they do have chemists, they would know that 2 , 4 23 dlchlorophenol i does contain dioxin. Do you recall that testi 24 mony? Co* 13 <3 &1 A As I recall the testimony, as I recall X was saying 2 that I have seen EPA publications that listed processes that 3 the EPA felt would produce products containing dioxin and 4 chlorophenols ' was one of the processes, 5 Q Now of course it depends upon whose product they 6 are testing as to whether or not they will find or know that 7 dioxin is in that product isn't that -- if one company 8 manufactures ^chlorinated phenol in a particular process and 9 dioxins come as a result of that manufacturing process whereas 10 another company doesn't use that process or uses the same 11 process but c l e w s if up and doash use things that causes i'3r 12 dioxin if you test the .chlorinated phenol for the company 13 that manufactures it in a clean method you would learn -- 14 you would not learn whether or not other companies manufactured 15 it any way thatwould produce dioxins isn't that correct sir? 16 ' A Veil now the publication that I'm recalling -17 Q Could you answer the question asked you Hr. Park, 18 A X thought you were asking ma how the EPA would know 19 that there was dioxin in a given product* 20 Q No I didn't ask you that Mr. Park. Xf you would, 21 please answer the question that X asked you. 22 MR* MUSGRAVE: Object to the question as being a 23 multiple question with multiple parts. 24 THE COURT: Overruled. I A I hope I can recall Che thrust of your question. 2 Q Well, let me help you, Mr. Park. If the government 3 tests the chemical, the 2,4 dlchlorophenol made by one company, 4 they would know the contents of that sample tested as sent by 5 that company, wouldn't they, sir? 6 A Yes, they would, 7 Q If the government doesn't test the 2,4.dlchlorophenol 8 manufactured by another company and If that other company 9 doesn't tell the government what dioxin Is In its 2,4 dichloro- 10 phenol, then the government wouldn't know the content of the 11 second company's 2,4 dlchlorophenol, would they, sir? 12 A The government would know that there could be dioxin 13 present. 14 Q Mow would you answer that question, sir. Would you 15 direct the witness to answer that question. I've broken it 16 down for him. I've made It simple so that he could understand 17 It, and he will not answer that question. 18 THE COURT: You're directed to answer the question, 19 as asked to you, Mr. Park. 20 MR. MUSGRAVE: Object. It calls for speculation and 21 conj ecture * 22 THE COURT: Overruled. I don't believe It does. 23 A The answer is yes, the government would know that there would be some dioxin In that untested shipment of chloro- 1 phenol. 2 Q And where would they get that knowledge, from the 3 con$>any that manufactured the dioxin? 4 A . Because of -- 5 Q Excuse me* Where would they get that knowledge? 6 Would they get it from the company that manufactured the 2,4 7 dichlorophenol that was not tested and that did not report It? 8 A No, they would get -- 9 Q Would they get that knowledge from the samples that 10 they did test as far as 2,4 dichlorophenol is concerned? 11 A From their own chemists' knowledge of chemical react1 12 HR* HUS6 RAVE: Your Honor, may my objection continue 13 to run to this questioning about what the EPA would do or where 14 they would get information and what they would know as being 15 pure speculation and conj ecture 16 THE COURTS Overruled, and it will be a continuing 17 objection* So noted. 18 HR. MUSGRAVE: Thank you* 19 Q You understand, don't you, Hr. Park, that chemists 20 have testified or gave reports to the government that it would 21 be impossible for tetra to be in their chlorinated phenol or 22 in their OC -- strike that. In the orthochlorophenol crude 23 through the existing processes they knew of at that time? 24 You d o r e c a l l that don't you, sir? y:- 1 A I do not know about that testimony. 2 Q You don't know about that? Directing your attention 3 to this particular exhibit the government here according to 4 this exhibit had a sample of 2,4 dichlorophenol tested, didn't 5 they, sir? 6 A Yes. 7 Q They did it under contract with a company known as 8 the Midwest Research Institute, didn't they, sir- -- 9 A Yes. 10 Q -- on January 10th, 1979, didn't they, sir? 11 >t f*' t A Yes, apparently so. . 12 Q And of course, that January 10th, 1979 is just coin 13 cidentally the day that this occurrence took place involved in 14 this case, but according to that analysis they tested a sample 15 from Dow Chemical Company, didn't they, sir? 16 A Yes. 17 Q And the analytical data that they used in that test 18 showed that of the dioxins it did not have -- they could not 19 detect the ttrachlorodibenzo-p-dioxin down to one part per 20 billion, isn't that correct, sir? 21 MR. MUSGRAVE: I think it's million, Mr. Carr. 22 $ MR. CARR: No, that's .001 parts per million, which Is 23 one part per billion. 24 Q Do you see that, Mr. Parkv the dioxins, tetrachloro- 1 dibenzo -p-dioxin 2 A Yeah. 3 Q -- ,001 pm, nd, not detected at that level? Do you 4 see that sir? 5 A Yes, X do. X do see that. 6 Q Now in January of 1979 the government, the Health ant 7 Welfare Department, had Information relating to 2,4 dichloro- 8 phenol which stated that the tetradioxln could not be detected 9 at a level of one part per billion in Dow's dhemical, is that 10 correct, sir; according to this? 11 ;;7 A Apparently so. : * 12 Q And at that same time, one month after that, the 13 ttras in the Monsanto product, there were 487 parts per billioi 14 according to its own test, 2700 parts per billion according to IS the University of Nebraska according to Exhibit 1301a, is that 16 correct, sir? 17 A X see those numbers. 18 Q Mr. Park, isn't what I stated correct, sir? 19 A Yes. 20 Q Mr, Park, now at that time according to the informa 21 tion the government had In Its file the 2,4 dlchlorophenol had 22 no detectable level of ttras down to one part per billion; 23 the product being manufactured by Monsanto had 2700 parts per 24 billion, 2.7 parts per million of dioxin In it. Now would 1 you noc say that that is a vide variation between no .detectable 2 dioxin with a detection limit of one part per billion Dow's 3 product compared to Monsanto's product with 2700 parts per 4 billion? Would you not say that that is a wide variation in 5 the dioxin, the tetradioxln content of 2,4 dichlorophenol? 6 A Tf that number is correct, that is a sizeable variatic 7 Q In the pentachlorodibenzo-p-dioxin, the Dow sample 8 not detected at one part per billion, hexa not detected at one 9 part per billion, hepta not detected at one part per billion, 10 octa not detected at one part per billion, isn't that correct, 11 sir? 12 A Yes. 13 Q And at the same time the Monsanto product had dioxins 14 at the level of 50,000 parts per billion of total dioxins, IS isn't that correct, sir? 16 MR. MUSGRAVE: Your Honor, I object to this being 17 represented as the same time. There is no evidence again,which 18 is part of the reason I objected earlier, there is no evidence 19 as to when this sample was manufactured. You can't compare 20 when this sample may have been manufactured as to when a Monsant 21 sample may have been manufactured. There's no evidence of that 22 even in the document, which we have continued to object to. 23 THE COURT: Objection is overruled. 24 A We did add up the numbers for this sample apparently 1 taken at this -- of the dichloropheno1 spill to be around 2 50,000. 3 Q Is It barely possible, Mr. Park, that the government, 4 the National Institute, the Department of Health, Education, 5 and Welfare and other branches of the government believed that 6 since Dow's 2,4 dlchlorophenol did not contain 2,3,7,8 TCDD or 7 tatrachlorodibenzo-p-dioxin or tridibanzo-p-dioxin that they 8 believed that 2,4 dlchlorophenol manufactured by othar chemical 9 companies until notified to the contrary had the same level of 10 dioxin that Dow had? 11 ; - A I don't think so. ;,...,. ......, 12 MR, MUSGRAVE: Object, speculation and conjecture. 13 THE COURT: Overruled. 14 MR. CARR: Your Honor, I would offer into -- 15 A I don't think so, Mr. Carr. 16 MR. CARR: I would offer into evidence Exhibits 1300 17 and 1301a at this time -- 1301 and 1301a. 18 MR. MUSGRAVE: We would object for all the reasons 19 previously stated as to the misrepresentations, what we believe 20 to be misrepresentations and also there's been no ldentificatiot. 21 as to the source of the information for GATX 12392, the OCP 22 sample No. 2, Mr. Carr started on that yesterday, but has not identified where that information came from. MR. CARR: I'm sorry, I wasn't listening. What was 1 it I hadn't Identified? 2 MR MUSGRAVE: GATX 12.932 3 MR. CARR: 0h# all right. 4 Q Exhibit 1142, you see that says GATX 12932? 5 A Yes1,'I think so. 6 Q Do you see that? 7 A Yes. 8 MR. CARR: That's the OCP that spilled, Mr. Musgrave, 9 in Sturgeon. 10 MR. MUSGRAVE: I understand that, Mr. Carr. You're 11 getting that information from what exhibit'now? 12 MR. CARR: I'm getting that information from the 13 Rappe exhibit and the admission of counsel in front of this 14 jury and from Exhibit 1142. 15 MR. MUSGRAVE: Which one of these are you using, Mr. 16 Carr? 17 MR. CARR: I'm using the admission of counsel in front 18 of the jury -19 MR. MUSGRAVE: Which one of these -- 20 MR. CARR: And the Rappe exhibit for the 43 parts per 21 billion* I'm using Exhibit 1142 for the total dioxin content adding the 45 in there. MR. MUSGRAVE: And which one of these are you using for the total dioxin content, which of the three? : Wv: I HR. CARR: The -- see Chat 210 right there? 2 HR. MSGRAVE: Umhm. 3 MR. CARR: You see that 210 right there? 4 MR. MSGRAVE: Umhm. 5 MR. CARR: I 'm using that line. 6 MR. MUSGRAVE: And you're adding -- 7 A That's says 34 tetra there, doesn't it; not 45? !8 Q But as I -- maybe you weren't listening, Mr. Park, 9 The admission', of counsel is that it was 45, the Ur. Rappe 10 exhibit is that it was 45. n MR. MSGRAVE: I object to the'representation that 12 the admission of counsel was that It was 45. I don't believe 13 that counsel admitted that it was 45. That's a mlsxepresantatli 14 MR. CARR: Well, your Honor -15 THE COURT: 1 previously ruled that he has. 16 MR. CARR: Maybe Mr. Musgrave wasn't here. The jury 17 heard It. 18 MR. MSGRAVE: I've read the opening statement, Mr. 19 Carr. 20 THE COURT: I heard the opening statement, gentlemen. 21 1 know that It was said. I previously ruled that there was such 22 an admission of counsel. 23 MR. MUSGRAVE: I'm just continuing to make my record, 24 your Honor. 1 THE COURT: Right. No I understand that. 1 just 2 wanted to make the record clear on that. I will admit 1301 and 3 1301a over objection. 4 MR. CARR: Your Honor I'd like to know from counsel 5 whether or not it is Monsanto's position that this tank car did 6 not contain -- If they are still denying that this tank car 7 contained 45 parts per billion 2,3,7,8 TCDD7 8 MR. MUSGRAVE: Your Honor, I have made an objection 9 to Mr. Carr's statement as to his representation as to an 10 admission, and that is my objection. 11 MR. CARR: I'd like to know, whether or not Monsanto 12 is now backsaying that there was not 45 parts per billion 13 2,3,7,8 TCDD in that tank car? 14 MR. MUSGRAVE: Object to counsel's questioning^in IS this fashion, your Honor. This is not -- I am not a witness 16 on the stand. I have made my objection in accordance with the 17 law, and counsel is now* -- are you challenging my objection, 18 Mr. Carr? 19 THE COURT: All right. 20 MR. MUSGRAVE: It's been overruled, Mr. Carr. 21 THE COURT: Gentlemen, we'll deal with this later. 22 We'll deal with this later. Mr. Carr, you may proceed. 23 MR. CARR: I have no further questions of this witness 24 your Honor. 1 THE COURT: Mr, Musgrave, 2 MR. MUSGRAVE: Thank you, air. 3 CLARIFICATION 4 BY MR. MUSGRAVE: 5 Q Mr, Park, I'd first lik to ask you a question about 6 this exhibit that Mr. Carr just questioned you about, this 7 Plaintiff's Exhibit 1302. 8 A Yes 9 Q Now, Is there any Indication on there, sir, as to whei 10 that sample that was apparently tested by someone and analyzed 11 by someone as to when it was manufactured? ' 12 A No, I don't see a manufacturing date. 13 Q And did you understand Mr. Carr to represent that thii 14 data had been obtained from, an analysis done by the Midwest 15 Research Institute? 16 A Yes. 17 MR. CARR: The exhibit clearly shows, if counsel 18 Isn't aware of it, the data regarding the dioxin content came 19 from Dow Chemical Company. 20 MR. MUSGRAVE: That's precisely my point. Mr. Carr, 21 but I believe it was represented by you, Mr. Carr, that this 22 came from the Midwest Research Institute. 23 MR. CARR: Can't you read. Counsel? It says on the exhibit : ^n i MR. MUSGRAVE: I was under the assumption that you r..2 couldn't read, Mr. Carr, since you have misrepresented It. 3 Q Does it indicate that this data, Mr, Park, came from 4 the Midwest Research Institute? 5 MR. CARR: it sure does. It came from the Dow 6 MR. MUSGRAVE: Mr. Carr -- your Honor, may I procei 7 with my examination without Mr. Carr testifying or attempting 8 to testify? You want to get up on the stand and be sworn? 9 THE COURT: I don't believe that's what's happening. 10 You may proceed with your questioning. ri MR. CARR: I'lirbe glad to, Mr; Iftisgrave. 12 MR. MUSGRAVE; Your Honor, may I proceed without Mr. 13 Carr interrupting me? 14 THE COURT: I just told you you could proceed. IS Q Does the document indicate, Mr. Park, that this 16 analysis was performed by the Midwest Research Institute? 17 A As I would read it, there's a footnote after the 18 words analytical data, there's a footnote, and down at the 19 bottom it says data supplied by E. R. Froiter of Dow Chemical 20 Company, Midland, Michigan in a personal letter to Dr. William 21 Jameson of Tracor Jitco. 22 Q So it would appear on the face of this that the 23 analysis was done by somebody at Dow of their own product? 24 / A Yes. 1 Q And then sent to Dr. William Jameson of Tracor Jltco, 2 right? 3 A Yes. 4 Q And is there any information as to what method was 5 used to analyze this? 6 A Not that I see. 7 Q So this is a report of data by Dow, it's not by an 8 independent lab of any kind? 9 A Yes. 10 Q And this was reported to -- or purports to be a 11 letter from the Department of Health, Education and Welfare, 12 isn't that correct? 13 A That's right. 14 Q Now, is the Department of Health, Education, and 15 Welfare different than the Environmental Protection Agency? 16 A Yes, two entirely separate independent agencies. 17 Q And the knowledge that HEW may have had from this may 18 be different from what EPA had? 19 A Yes. 20 Q And do you know that the Department of Health, Educa 21 tion,and Welfare doesn't have other knowledge as to the potently 22 actual content of dioxin, various isomers of dioxin in any 23 chlorinated phenols, Including 2,4 dlchlorophenol? 24 A They may well have had additional knowledge. 1 Q You don't know one way or the other do you sir? 2 A No that's right. 3 Q And has Hr. Carr told you that there is any evidence 4 that he's brought forth in this courtroom to indicate that they 5 didn't have any such knowledge other than what's in this documei 6 A No. 7 MR. CARRi Your Honor X object. The burden is upon 8 the witness. He said and the law requires that EPA have actual 9 knowledge and the burden is upon the witness to prove that the] 10 had actual knowledge. It's not upon me to prove the contrary. II The law obligates Monsanto to give information to the EPA unlast 12 Monsanto knows that the EPA has actual knowledge. The burden 13 is not upon me to prove that they had no knowledge. 14 MR* MUSGRAVE: Well your Honor Mr. Carr was permlttt 15 to ask this witness to speculate as to what knowledge the EPA 16 may or may not have had as well as any other governmental agenc} 17 over my objection and X believe X am entitled to ask him now 18 whether Mr. Carr or anyone has told him that they did. 19 THE COURT: First of all -- first of all, those 20 questions that you're referring to X previously ruled were not 21 speculation. Number two, X think Mr. Carr's statement of the h 22 that 8 (e) and the policy under it are correct. Objection is 23 sustained. 24 Q Now Mr. Park does it indicate on this Plaintiff's 'VjV; 27 1 Exhibit 1302 that Dow performed any tests for the content of 2 monos, dis, or tris in the -- of the dioxin isomers? 3 A No, it doesn't. 4 Q And the same would be true as to the furans that are 5 shown below, would it not? 6 A That's correct. 7 Q Now with regard to Plaintiff's Exhibit 1301, Mr, Park, 8 this is this chart, 9 A Counsel, can I ask you a question? 10 Q X don't think that's probably appropriate, Mr. Park, 11 at this point. With regard to 1301, do you have that there, 12 Vi Mr. Park? 13 A Yes, I do. 14 Q Now the reference to GAXX 12932, which Mr, Carr 15 indicated to you is the tank car that was in question in the 16 Sturgeon spill, he's got 43 up here under the tetra column, 17 does he not? 18 A Yes. 19 Q And atotal dioxin of 824? 20 A Yes 21 Q Is thatcorrect? 22 A Yes 23 Q And X believe he Just indicated to you, did he not, 24 that he got. the total dioxin except for the 45 tetra from Exhibit plNGJhO CO.. BAtONNti H.J. 07001 70S** It. 14 1 V;., ] 14 1142? 2 A Yes* 3 Q All right. Now, Exhibit 1142 shows 34 parts per 4 billion,-doesn11 it? 5 A Yes. 6 Q Under the tetra column, and then a replicate 40 and ...7, 411 and down here X think it's 36 and 44, Isn't that correct? 8 A Yes. 9 Q And do you know whether analytical chemists when 10 they do replicates, repeats o the same type sample, and they 11 get different numbers that are close together, whether they 12 average those in the regular course of doing analytical work? 13 A I'm sorry, I just don't know* 14 Q All right* But in any event, there's no 45 in this 15 Column 4, is there? 16 A That's correct, there is not* 17 Q Now, Mr* Carr also questioned you about -- if I can 18 get this to stay up here -- these samples down here involving 19 what he has denominated as the DCF, . : dichlorophenol spill 20 A Yes* 21 Q Do you recall that? 22 A Yes 23 Q And asked questions about the EFA's knowledge as to 24 the dioxin content, that may have been reflected b y :the-various . I testing on those samples from that spill? You recall that, 2 don't you? 3 A Yes, yes. 4 Q And suggested that the EPA had no knowledge as to 5 dioxin content involved in that material that may have been 6 spilled? Do you recall that, sir? 7 A X think so, yes. 8 MR. MUSGRAVE: Do you have Plaintiff's Trial Exhibit 9 1118, Mr. Carr? Is it up here'or do you have it? JO MR. CARR: Are you asking me if I have 1118? 11 MR. MUSGRAVE: Yes. 12 MR. CARR: To my knowledge I don't. 13 MR. MUSGRAVE: I don't think you've got it there. 14 MR. CARR: If you give me a date or otherwise identify IS it, I might be able to help you, 16 MR. MUSGRAVE: It's the Monsanto press release dated 17 June 8 th, 1979 that you put into evidence, Mr. Carr. 18 MR. CARR: Oh, all right. I have our copy of it if 19 you'd like to use it. It talks about the OSHA -- are you 20 talking about the OSHA one? 21 MR. MUSGRAVE: Uh*huh. It might speed things up. 22 MR. CARR: Sure, 23 Q Mow, handing you what's been marked as Plaintiff's 24 Exhibit 1118, that's already been identified and introduced inte L?'"Hi l evidence as a press release made by Monsanto with regard to the 2 spill, and does it not indicate in there that OSHA apparently 3 took a -- or claims to have taken a portion of a spilled 4 material and had a finding of 300 parts per billion of dioxin? 5 MR CARR: Counsel, soothe record can be correct, 6 that's not a press release* That's a release to the employees 7 of Monsanto Krummrich plant. 8 MR. MUSGRAVE: Well, I have it in a press release fori 9 too, Mr. Carr, if you want to see it. 10 MR. CARR: I know that. 11 MR. MUSGRAVE: You've already put that in evidence 12 too. 13 MR. CARR: X know that, but this is not a press 14 release.. This is what the employees were told. 15 Q This was put out publlcally to the employees though? 16 A Yes, apparently right. 17 Q And there was a press release to the same effect, Mr, 18 Park. Did you know that? 19 A I don't recall that. 20 Q And in any event OSHA had this information, didn't 21 they? 22 A Yes. 23 Q And the information that OSHA reported to Monsanto 24 was made public to its employees? 1 A Yes. 2 Q And was part of a press release wasn't it? 3 A Yes. 4 Q Now do you suspect that OSHA, if they had some knowl 5 edge about their being 300 parts per billion of dioxin in that, 6 that this might have been something that they would have passed 7 on to the EPA or the EPA would have had available to them 8 through these public announcements? 9 A It's -- 10 MR. CARR: 300 parts per billion of tetra not total 11 dioxin, Counsel. 12 MR. MUSGRAVE: Mr. Carr, I understand that. X didn't 13 say -14 MR. CARR: Well, you said dioxin though. You didn't 15 say tetradioxin, you said dioxin. 16 MR. MUSGRAVE: Your Honor, may I proceed with my 17 examination? Do you have ait objection to make; Mr.'Carr? 18 MR. CARR: I do. 19 THE COURT: X think his objection is well taken. 20 Could you rephrase the question? 21 MR. MUSGRAVE: My statement, your Honor, was 300 parts 22 per billion of dioxin. 23 MR. CARR: That's correct, and the reference is to 24 tetra I MR. MUSGRAVE: And you're directing me that I must sa; 2 tetra? Is that correct your Honor? 3 THE COURTi That is correct. I think that's accurate 4 Q 300 parts per billion of tetra. Now do you under 5 stand that was made public as we just previously discussed? 6 A If I'm misreading this third paragraph or does it 7 say 50 percent of the dioxin detected was -- 8 Q Yes. it says 50 percent was 2.378 . 9 MR. CARR: That's correct. 10 A Yeah okay. 11 MR. MUSGRAVE: Now I don't believe that this press 12 release, your Honor says that 300 parts per billion is all 13 tetra. It says that 50 percent of the dioxin detected was 14 2,378. Now, do you have some other information, Mr. Carr, IS where it says that the 300 parts per billion they're talking 16 about Is all tetra? 17 MR. CARR: Yes, we have exhibits in evidence to that 18 effect 19 MR. MUSGRAVE: Well, it really doesn't make any dif 20 ference, as you say, Mr. Carr, because it doesn't. My point 21 is this, Mr. -- 22 MR. CARR: Just so the record is straight. 23 Q My point Is this, Mr. Park. The information about 24 300 parts per billion of dioxin, and let's for the moment say 33 1 It is tetra was made public wasn't It? 2 A Yes. 3 Q And OSHA at least felt they knew about it didn't 4 they? 5 A Yes, 6 Q Now do you suspect that OSHA would have passed this 7 information on to the EPA if thy felt it was of some signi 8 ficance? 9 A They certainly could have. 10 Q And do you feel that it is in fact possibly that the U EPA would have seen this information some place or been made 12 aware of this information that was made public? 13 It certainly is. 14 -Q Now do you know whether the EPA -- well let me IS rephrase that. Hr. Carr asked you about the EPA coming in and 16 stopping shipments and that type of thing. You remember him 17 examining you about that saying that the EPA had the power or 18 did they have the power to come in and stop shipments and 19 wouldn't they stop shipments if they felt that there was a 20 hazardous level of a chemical in let's say that met the 21 requirements the reporting requirements of Section 8 (e) that 22 we've been talking about that they would come in and stop that 23 shipment? Do you recall him asking you about that? 24 A Yes. 1 Q Nov do you know whether the EPA ever come in and stop 2 a shipment from the Krummrich Plant of its chlorinated phenols? 3 A It's never happened as far as I'm aware. 4 Q To your knowledge? Now, I don't want to spend a lot 5 of time going through these various samples that Mr. Carr put 6 up on Plaintiff*8 Exhibit 1301, Mr. Park, but you did recognise 7 when you went through these that in many instances there was 8 more than one analysis of a sample, there was sometimes three 9 or four analyses, is that correct? 10 A That's right. 11 Q And were you able to tell whether Mr. Carr was taking 12 the highest analysis when he would select one of these to put 13 up on the board? 14 A Yes, I noticed that when there were more than one 15 analysis of a given sample, that he selected that that resulted 16 in the highest total number of dioxins. 17 Q And do you know anything, Mr. Park, about interferenc 18 and how that word is used by analytical chemists in connection 19 with reporting their data when they analyze something with the 20 GCMS and those types of analytical methods that they use? 21 A My knowledge is fuzzy. I think that it means that 22 the analysis is difficult, because other -- I just don't know 23 that much about it. 24 Q All right. You just don't know what that means. All 1 right* Now Hr. Park, In regard to that tank car spill sample, 2 the one that w e fre talking about, GATX 12932 -- 3 A Yes. 4 Q Now you, of course, know that the total tetra content 5 that Monsanto discovered in its analysis of that reserve sample 6 was reported to the EPA? 7 A I think that1s right. Q And are you aware of the fact that the EPA was also 8 9 given samples at' their request of the reserve sample from the 10 tank car? 11 ;A I think I can -- I recall that, yes. 12 Q And they did their own testing or had someone at 13 their request do their own testing, if you will, on those 14 portions of the reserve sample? A I can remember that there was quite a bit of contact IS 16 with the EPA, and as I recall, sharing of information. 17 Q And the EPA would have been well able, had they wantec 18 to, or had there been any concern in their mind, to test for 19 total dioxin content, not only for tetras, isn't that correct, 20 sir? 21 A Yes. 22 Q And do you know whether they did or they didn't? 23 A I Just don't remember. 24 . Q Okay. In connection with that^ sample testing did EPA to your knowledge after they had done their own testing for whatever -- by whomever they selected and got whatever results they felt were significant, to your knowledge did they stop Monsanto from selling in commerce OCF crude? A Not to my knowledge. Q Now, Mr. Park, coming back to the topic of these Sect:.on 8 (e) meetings. Now your role in those meetings was what, sir? A I would advise the group on what the law said, what the law required, and X kept minutes of the meeting, and that's about It. Q All right. You would advise the other members of the committee as to your interpretation of the law as a lawyer? A That's right. Q And apply it to the factual information that you were given and the opinions that you were given by the others with regard to certain facts? A Yes. Q And you also kept the minutes, I think you said? A Yes. Q All right. Now, you I think we've already establishoi, are not formerly educated in chemistry or toxicology or medicina, isn't that correct, sir? A That's correct. Q Now in keeping these minute? would you rely upon your V'J 1 ability to understand and take down what was said at the 2 to type up the minute8 ? 3 A X relied on what others said at the meeting* 4 Q 1 understand that. 5 A Yeah. 6 $ But when you sat down to type up the minutes or have 7 typed up the minutes of the meeting would you rely upon your 8 ability to accurately recall and record in note form exactly 9 what was said, the way it was said by these people that have 10 the expertise in these areas that you didn't? 11 A NO. 12 Q All right. Well when you typed up these minutes 13 what would you do then? 14 A I would, of course, I took notes during the meetings 15 and then my practice was and is to -- I would type up what I 16 felt 1 remembered and what my notes Indicated about the meeting 17 and circulate^that to others, to everyone else who had attended 18 the meeting. Those individuals then would make appropriate 19 corrections where I had misstated something or where I had perhaj 20 not fully understood something that one of the experts, if you 21 will, had stated* They would correct the minutes, send them 22 back to me, and then I would Incorporate all those corrections 23 and then publish the minutes In final form. 24 Q All right, sir* .And. as a matter of fact * do you have 1 Plaintiff's Exhibit 1298 up there sir? 2 A No X don't 3 Q Well let me see if I can't find it* (Pause) 4 Handing you what's been previously marked as Plaintiff's Exhibii .5 1298 that is a copy on the top of your notes from the November 6 24 1981 meeting is that right? 7 A That's correct. 8 Q And the next two pages of that exhibit are your hand 9 written notes from which you would have prepared your first 10 draft if you will? 11 A Yes. r 12 Q And the last page of the exhibit sir is a memorandui 13 from Clayton Callis to you dated December 18th 1981? 14 A Yes. 15 Q And does it not contain a suggestion for a change in 16 the way you reported the information Paragraph 3? 17 A Yes. 18 Q And that information Paragraph 3 is technical in 19 nature and deals with toxicity and things that you don't have 20 any expertise in is that correct? 21 A That's right. 22 Q And in fact did you amend your first draft to refleci 23 the changes that -- is it Dr. Callis or is that Mr. Callis? 24 A I think it's Dr. Callis. i 1 Q That Dr. Callis had suggested? 2 A Yes 3 Q And Dr. Callis, was he a member of this committee at 4 that time? 5 A Yes, he was the Director of Environmental Operations. 6 MR. CARR: This is already an exhibit. Counsel. It's 7 already in evidence. 8 MR. MUSGRAVE: Which one is it, Mr. Carr? 9 MR. CARR: December 14th, 1931. 10 MR. MUSGRAVE: You want to give me the exhibit 11 number? 12 MR. CARR: Oh, you want -- that's the one you're 13 just referring to, 1298. 14 MR. MUSGRAVE: I'm sorry, Mr. Carr, it's different. IS MR. CARR: They're exactly the same,. Counsel, exactly 16 the same. 17 MR. MUSGRAVE: Let me be sure, Mr. Carr. The exhibit 18 I have that you have marked that you gave me is this one right 19 here, Document C03528. That's`what you marked as Plaintiff 's 20 21 MR. CARR: The other one is there as well. Counsel. 1 had it marked first and then I handed in the one with the not A This would have been my first draft. MR, MUSGRAVE: Yes, yes. *'*,S 1 Q Plaintiff's Exhibit 1298 is your first draft is it 2 not? 3 A Yes, 4 Q All right* And attached to it are the notes of Dr. 5 Callis suggesting a change to the third paragraph dealing with 6 toxicity, isn't that correct? 7 A Yes. 8 Q And Defendant's Exhibit 882 which I now hand you 9 can you Identify that sir? 10 A Yes. This would be the final draft of minutes of the 11 November 24, 1981 meeting incorporating comments received from 12 Dr. Callis and others. 13 Q All right. Now that's an example of the type -- 14 or example of the process that you went through to ensure that 15 your note taking accurately reflected what you took down since 16 you didn't have the expertise and background, is that correct, 17 sir? 18 A Yes. 19 Q Now. this committee that was constituted when someone 20 would report their belief that there might be a chemical or 21 mixture of chemical that would present a substantial risk of injury to health or the environment under 8 (e) was comprised of what persons? A The committee or group or whatever itself had three 1 persons that were part of It* One was the Director of our 2 Medical Department, Dr, Roush to provide the medical Input, the 3 other would be the appropriate Director of Environmental Opera* 4 tlons. This would be a Dr. Callls with one part of the company 5 It would be other Individuals with other parts, 6 Q Now when you say appropriate director, why do you say 7 appropriate? Would that person change sometimes? 8 A Yes, yes, 9 Q Why would there be a change? 10 A It would depend upon the product or the material In II question. The company Is divided.up .Into now four basic, 12 operating units, each one of which has a Director of Environ 13 mental Operations function, and so depending upon the substance 14 or the material in question the DEO or Director of Departmental 15 Operations for the part of the company that either manufactured 16 or used that product would be part of the cosanlttee So that 17 function would always be part of the group, but the Individual 18 would change depending upon the product being considered. 19 Q All right, 20 A And the third person would be myself to provide the 21 legal Interpretations. 22 Q If I understand what you*re saying, that the different 23 products of the company came under the jurisdiction and respons: 24 bility of different directors of Environmental Operations? 42 1 A That's correct* 2 Q Not one person had all that responsibility for all 3 the products? 4 A No, that's right. 5 Q So depending upon the product that was the subject 6 of the 8 (e) meeting, you would either have one or the other? 7 A Yeah. There would be two individuals who would be 8 the same for all meetings with very rare exceptions. That 9 would be the Director of our Medical Department and myself. 10 Q All right. And that Director of the Environmental n Health -- specifically Director of Medicine or Environmental 12 Health, that's Dr. Roush? 13 A That's correct. 14 Q ' Now the composite of that committee was established 15 by Monsanto's written policy, I believe, that's'Defendant's: 16 Exhibit 881, and may have been established before that, but in 17 any way it was reannounced in Defendant's Exhibit 881. Do you 18 have that there, sir? 19 A Yes, here it la. 20 Q Handing you what's now been marked or previously been 21 marked as Defendant Monsanto's Exhibit 881 you would recognize 22 that, sir, as the -- 23 - A Yes. j 24 policy statement establishing or at least reaffirming 43 1 the committee organization you have just testified to as con 2 stituting an 8 (e) committee? 3 A That's correct. 4 Q And that organization to set that committee up to 5 review matters brought by anyone to them when a person felt 6 there might be a chemical or mixture of chemicals that would 7. -- of the type that should be reported under 8 (e) was that 8 set up in accordance with the policy statement of the EPA? 9 A Yes. 10 Q As set out in Defendant's Exhibit 880? n *A Yes. ~ ** , 12 Q And I believe you've got 880 there in front of you, 13 have you not, sir? 14 A Yes, that's correct. 15 Q All right. 16 A Actually, as X recall, this organization or this 17 little group was more or less established just prior to the 18 publication of the policy. In other words, to assure compliance 19 with the statute. 20 Q All right. 21 A But then It was -- this type of information here is 22 -- something similar to this is published annually in an 23 effort to make sure that employees are kept knowledgeable about t 24 our obligations under Section 8 (e). BATQNNE, N.J, 1 Q All right, sir. Nov you mentioned that the policy 2 provides for three persons, yourself, the head of the Department 3 of Health and Environmental Medicine, and the respective Directo 4 of Environmental Operations depending upon the product? 5 A Yes. 6 Q Now ve have seen, Mr. Park, at these meetings other 7 people though in attendance. Now could you tell us why, if the 8 committee is three, on several occasions ve have seen other 9 people in attendance at these meetings? 10 A Yes. On occasion Dr. Roush or -- and/or the DEO 11 would provide other people who they felt might have some know!* 12 edge or expertise or whatever that would be of use during the 13 meetings. 14 Q All right. So just to add additional information or 15 knowledge if thought to be necessary in a particular situation 16 to the meeting? 17 A That's correct. 18 Q Now, with regard to Dr. Roush, do you have specific 19 knowledge, sir, of his educational background and the type of 20 courses he took, the type of degrees that he got, do you have 21 any specific knowledge in that regard? 22 A I really don't have the specific knowledge as to the 23 details of his background. 24 , Q He is a doctor, you know that?. 1 A He is an MD, yes. 2 Q Do you know where he has spent the better part of his 3 professional career, in what area# specifically? 4 A 1 do know that he has -- he has been a Professor 5 in a university, also had experience in, I think, in functions 6 somewhat similar to what he holds with Monsanto prior to his 7 coming with the company. 8 Q All right. But beyond that you're'not -- you don't 9 have a lot of specific knowledge about what he did and when he 10 did it and exactly what his background and specific training 11 and experience had been or was? 12 A No, I have never read-his.resume' in other words. 13 Q Okay. Now at these meetings that you did though 14 attend with Dr. Roush did he display to your mind as a layman 15 knowledge about the toxicity of various chemicals? 16 A He's always appeared very knowledgeable about toxicity 17 Q Do you know what a clinical toxicologist is, Mr. Park? 18 A I'm not sure that I do. 19 Q Do you know what an experimental toxicologist is? 20 A No, X don't. 21 - Q Do you know or have you ever heard anyone talk about 22 Dr. Roush being a clinical toxicologist and having practiced in 23 that for many years? Anybody ever say that to you that you can 24 recall? 46 1 A Not that I can recall, 2 Q All right. Now at these meetings and specifically a 3 couple of these that Hr. Carr showed you, there was reference 4 to In your minutes that you prepared trace levels. Do you 5 recall Mr. Carr asked you about that? Now, I know that you're 6 the one that copied down the notes end you're the one "that had 7 the notes typed up, but when the word trace levels was used in 8 these notes, were those words that you spoke at the meeting to 9 the best of your knowledge? 10 A No. 11 Q Or are those that the people, th toxicologists and/or 12 the people from the Medical Department spoke? 13 A These would be words coining from the more technically 14 educated and oriented individuals. v 15 Q And the context in which they used them would be best 16 known by them, I take It, than it would be by you, Mr. Park? 17 A That's correct. 18 Q And again with regard to levels were any of these 19 meetings to the best of your recollection or the review of your 20 notes T- 1 know that you said that you have vary little, if 21 any, recollection of most, if not all of these meetings except 22 what's contained in these notes, Is that correct? 23 A Yes. 24 Q But do any of these meetings reflect, sir, that the 1 purpose of the meeting was to try for any particular chemical 2 or compounds that Monsanto was manufacturing, to try and, set v& 3 level with regard to that compound or a constituent, a component 4 an impurity in that compound thath would be considered safe? 5 A Oh, no. The purpose of the meeting was solely to 6 determine whether an obligation existed under Section 8 (e), a 7 reporting obligation. 8 Q With regard to a particular chemical that was brought 9 to you by someone? 10 A That' 8 right. 11 Q And beyond that chemical'and the discussions that werct 12 had about it and its levels there wasn't any attempt to say, 13 well, gee, how high can you go or how *lo%w `s2hould you go or any14 thing like that? 15 A No. 16 Q Now -- 17 THE COURT: Before you get into another subject, Is 18 this a good point for a short break? 19 MR. MUS6RAVE: Yes, X think It is, your Honor. 20 THE COURT: Ladles and gentlemen, we'll take a short 21 recess at this time. X would remind you,and this would go for 22 any other recesses that we might take during the day, that you 23 are not to discuss this matter among, yourselves or with anyone 24 outside the jury panel or as of yet form any opinions or con- kW-V i ''~wy. 1 elusions about the matters on trial. Court's in recess. 2 (At this time a short recess was taken.) . 3 PH0CI0N PARK. 4 resuming the witness stand, having been previously sworn, 5 testified further as follows: 6 CLARIFICATION (Continued) 7 BY MR. MUSGRAVE: 8 Q Mr. Park, when.we broke, I think we were talking 9 about the Organization of the 3(e) committee, and I want to 10 continue to pursue that, but before I do so, I'd like to come 11 back'a minute to Plaintiff's Exhibit 1302 that I started out \2 questioning you about originally. That's the letter with the 13 attached report of the Dow analysis of Its own 2,4 dlchlorophetu 14 I asked you some questions about that earlier. Do you recall? v IS A Yes. 16 Q I had one other question to ask you. If you would 17 turn to the third page of that Exhibit 1302, where they're 18 describing at the top of the third page'there the manufactured 19 data, company, they give the name of the company, the size of i 20 the sample and the lot number and the batch number. You see 21 that? 22 A Yes, umhm. 23 Q And then the next item says purity. 24 A Yes. 1 Q And then it says "Special lab distilled lot by 2 manufacturer " 3 A Yes* 4 Q Now do you know sir then whether or not this 5 sample of 2,4 dichlorophenol that Dow analyzed was right out 6 of its production run or was it something special that was done 7 in the lab? 8 A It would appear from that wording that this was a 9 special batch of material produced in the laboratory in order 10 to achieve a higher degree of purity* 11 Q And it uses the word distilled? 12 A Yes. 13 Q Now do you know whether Dow routinely distilled its 14 2,4 dichlorophenol? IS A I do not know. 16 Q Do you know if it did whether Che distillation that 17 it used in the actual production of the 2,4 dichlorophenol was 18 any different than. the. distillation that apparently was done 19 in the lab as soma type of a special lab distillation? 20 A I don't know. 21 Q Now, coming back again then to the 8 (e) committee 22 and its organization. 1 think we talked a bit about the members 23 of it and how other people come to be present at the meetings. 24 Let ma ask you, sir, you've told us that your role is one of -- 1 ocher than the minute taker and whatever -- applying the law 2 as you understand it to the information that is gathered there 3 at the meeting from the toxicologist and medical people, la that; .4 correct? 5 A That's right, 6 Q Now do you or to your knowledge do you recall ever 7 having expressed an opinion of a toxicological or a medical 8 nature? 9 A No. 10 Q You don't have the background or the expertise for 11 that? . 12 A TSiat's correct. 13 Q Now at these meetings sir, do you recall at any 14 meeting that you can recall a portion of or do you recall if t 15 your notes reflect that there was ever any disagreement on any 16 point, a major point, let's say, of any of the people that 17 attended these meetings? 18 A I cannot recall any disagreement as to the final 19 conclusion of an 8 (e) meeting. 20 Q All right. 21 , A There has been discussion of some of these technical 22 Issues during meetings. 23 Q All right. And if there were a disagreement, still 24 some conclusion would have to be reached? *'V'V 51 A Yes. Q And depending upon the nature of the disagreement and the person that might be disagreeing, let's say, with the rest of the group, one might look at the education, the experience, the training of those agreeing as opposed to those disagreeing to come to a conclusion? A Yes. Q And in such a situation then if there was a conclusion that was not the same as those that -- of some opinions, thera would be then -- there would be a situation where you would not be following the advice of at least one person on that committee or that may have come as an invitee to talk? A Yes, that's true. Q Now, Mr. Carry asked you, you recall, in your exami nation about whether you would believe a Monsanto toxicologist that told you that a certain level ought to be reported to the EPA. Do you recall that? Oh, I'm sorry, ha didn't really ask you that. As I recall, he said whether a particular level of dioxin was hazardous. A Yes, I recall that. Q And you said if a Monsanto toxicologist told me that, I 'd believe it. Now that was in the context of one on one, wasn't it? A Oh, yes. '*' . ^(,%r 1 .1. f ;";.:->''.' ?;,l,,tly * V.'.s' ^r':.x-v^r ' '' - * - *' >- 'v Q Now# in the context of an 8 (e) meeting if you had a variety of opinions and there was a consensus that clearly carried the day Chen that's not the same situation that Hr. Carr posed to you -- A Ho. Q -- when you answered that question is it? A No not at all. Q Now I'd like to get into sir the statute and the policy that Hr. Carr questioned you quite extensively about certain sections of it and I want to ask you some questions about other sections of it. Do you have Defendant's 880 in front of you there sir? A Yes I do. M R . MUSGRAVE: All right. Your Honor Mr. Carr has shown sections of this to the jury in connection with his exam! nation and I would request permission to pass Defendant's 880 I which is the entire policy statementto the jury. THE COURT: Go right ahead. MR. MUSGRAVE: So they can follow along with other sections. I want to show them. Do you have a copy Hr. Carr? MR. CARR: Yes. MR. MUSGRAVE: Your Honor do you have a copy? THE COURT: I have 880 yes thank you. :;X%X-i; (At this time the exhibit was passed to the jury.) V ' .... . ' . s 1 Q Nov, first of all, Mr. Park, Defendant's 880 is a 2 statement policy as opposed to a regulation, is that what X 3 understand to be the case? 4 A That's correct. 5 Q And directing your attention to the first page of 6 this, the first column on the left under the heading there, 7 Supplementary Information -- 8 A Yes. 9 Q Does it indicate being a policy statement what pro 10 cedures apply and don't apply as to the review of this policy II statement and how it's promulgated or how its put out? 12 ~ A Yes, it was published so as to be exempt from notice 13 and public comment provisions of the Administrative procedures 14 Act. 15 Q So it is -- being a policy is exempt from the notic 16 and public comment provision of the Administrative Procedure 17 Act? 18 A Yes. 19 Q What does that mean, Mr. Park? 20 A . It means that it was published merely as -- well, 21 as just a policy statement by the EPA. It's unenforceable. It 22 does not have the force of regulations or rules. In order to 23 achieve, to be a regulation or a rule, the provisions of the 24 Administrative Procedures Act would have to be followed, which I gives ail interested parties a right to participate in the 2 developx&ent of the rule to present witnesses and to cross 3 examine other witnesses make presentations and so forth. 4 Q All right. .To take issue if you will with the EPA'u 5 interpretation of the law through a rule making process? 6 A That's right. And also if it had been published as 7 a rule then there would have been the opportunity for challenge S again following regular appeal procedures. 9 Q So in the regular rule making process if the EPA were 10 to disagree with someone that appeared in connection with this 11 notification procedure to want to have a say as to what they 12 believe the rule ought to be and Interpretation of the statute, 13 that if the EPA nonetheless went ahead and passed the rule, 14 then this person would have the right to actually through a 15 judicial process or administrative process of some kind appeal 16 that and have somebody else look at It and see if the EPA was 17 right? 18 A That's right. 19 MR. MUSGRAVE: Before we go on, I'm sorry, I didn't 20 give you all enough there. I've got another one there. 21 (Mr. Musgrave handing exhibit to juror.) 22 Q And in fact. In this exhibit despite the fact that at 23 the very top there of the first column on the left it talks 24 about statement or it states after the word action statement -V*-*. A : .. * 7i 'V V A- ' A'- .,i-'.- ^ , * !, *, ' . V '-"A >'.' -, , , v-'frt.''- , ' .' ' ' * _* s ' \ -- ' ' `. '** - ' ^ - 1 o interpretation and enforcement policy there in the explanatio 2 in the second column there, the middle column there on the first 3 page, does it more accurately describe what the EPA is saying 4 is, sir? 5. A Yes. ' ^ 6 Q And what does it say, sir? 7 A The EPA-wording is it says 8 described more accurately as a 'policy statement iit 9 Q And then continues on by saying it is exempt from the 10 notice and public comment provisions of the Administrative Fro- 11 cedure Act as well as provisions concerning delayed effective 12 dates? 13 A Yes. 14 Q All right. So it states in its body that it is more 15 accurately described and is now described accurately as a 16 policy statement? 17 A That's correct. : t 18 : Q Now, the statute itself though from which this policy 19 statement is made by the EPA is recited in Defendant's Exhibit 20 880, is it not, sir? 21 . A Yes. 22 Q First column there on the left of Page 1? 23 A Yes, it is. 24 ;"Q .r All right. And this has been read, I know, several 1 times, but X would like you to read it again, if you would, to 2 the Jury, sir. 3 A Section 8 (e) consists of Just one sentence, which 4 reads MAny person who manufactures, processes, or distributes 5 in commerce a chemical substance or mixture and who obtains 6 information which reasonably supports the conclusion that such - 7 a substance or mixture presents a substantial risk of injury 8 to health or the environment shall immediately inform the 9 administrator of such information unless such person has actual 10 knowledge that the administrator has been adequately Informed 11 of such information," 12 Q All right, sir. Now, that is the extent of the 13 statute, is it not? 14 A That's it. 15 Q And the rest of this document, Defendant's Exhibit 16 880, is the policy statement? 17 A That's right, issued by the EPA. 18 Q Now the statute is the law as things stand right now? 19 A That's correct, 20 Q And if someone disagrees with the policy statement, 21 and the EPA believes that they're not interpreting the policy 22 of the EPA -- pardon me -- if someone disagrees with the 23 EPA's policy statement, believes the statute is really inter 24 preted in some other fashion, the EPA can challenge that person 1 interpretation, can they not? 2 A Right, the EPA could file a complaint. 3 Q Or if a person disagrees with some action the EPA 4 might take because the EPA believes they violated the policy 5 statement, then that person could take action against the EPA 6 in some fashion? ' 7 A I guess -- I guess it would be possible, but it 8 would be up to the EPA to take action if it felt someone had 9 violated Section 3(e). 10 Q Yes. What I'm saying is if the EPA took action 11 against someone saying you violated our policy statement, that 12 person would be permitted to take some action saying well, 13 you're wrong about what we think the law says. Just because 14 you say that's what it says, it's only policy and we're 15 entitled to find* out what the courts say and administrative 16 law judges say about it. 17 A Oh, yes. X think probably the obligation, the burden 18 would be on the EPA as in any other allegation of violation to 19 show that someone had -- was in violation of Section 8 (e). 20 MR. CARR; Your Honor, so the jury won't be mislead, 21 I don't think counsel did it on purpose, but he suggested that 22 If the EPA believed that somebody disagreed with Its interpre 23 tation of the law, that It's up to the EPA to challenge that 24 person's Interpretation. Of course, that is not the law. The : 1 EPA is under no such obligation to challenge anyone's interpre 2 tation. The EPA's obligation is to prosecute violations of the 3 lav that they learn ofv and they have no right to file suit or 4 to challenge my interpretation of the lav or Monsanto's inter 5 pretation of the law, and I'd like the Jury to understand that, 6 because counsel suggested and the witness agreed that if the 7 EPA didn't like the way Monsanto was Interpreting the law, that 8 the EPA could file suit against Monsanto and challenge them, 9 and of course, that is not the law. JO MR. MUSGRAVE: If I suggested that, I only meant to 11 suggest, your Honor, through actions that Monsanto might take 12 that the EPA would say you are in violation of their policy, 13 and then they would pursue it. 14 THE COURT t I agree with it with that addition, be 15 cause the interpretation would have to be evident via an action 16 that someone took. 17 MR. MUSGRAVE: Well, I meant -- 18 THE COURT: It couldn't be just -- 19 MR. MUSGRAVE : Certainly. I agree totally. I 20 certainly meant to infer that, if I didn't, then it has been 21 clarified. 22 THE COURT: I believe it has been clarified noy. 23 Thank you. 24 MR, MUSGRAVE : All right. 1 Q Tha point being, Mr. Park, that -- well, strike 2 that. Now, in the course of Mr. Carr's examination of you I 3 thought I heard you mention at one time something about their 4 being no judicial or administrative law Interpretation of this 5 statute. 6 A That's correct, there have been none. 7 Q There have been no -- 8 A Not -- 9 Q Action that the EPA has challenged that have gone 10 to court to see whether an action did or didn't violate the 11 law and the policy or interpretation^ of the EPA? 12 A Insofar as 8 (e) is concerned. 13 Q Yes 14 A Other EPA action under other provisions of the Toxic 15 Substance Control Act have been taken, a few other provisions. 16 MR. CARR: Your Honor, the jury may be mislead. The 17 fact is that no one has been prosecuted by the EPA under the 18 criminal provision of this act that required an interpretation 19 of the act. It's not that the **- and counsel is again, I 20 think, misleading the jury. There has to be -- the EPA has 21 to know that someone has violated the act and has to decide 22 that It's a violation worthy of prosecution. They have to have 23 the knowledge, and they have to decide to bring a criminal 24 action against that person that is violating the lav. X think 1 that should be made clear. 2 MR. MUSGRAVE; All X am Indicating, your Honor, Is 3 that there are no judicial interpretations of this statute that 4 this witness is familiar with. 5 A Could I -- 6 THE COURT: Fine. Then I think it should be clarifie* 7 like that, and I think the clarification makes it clearer for 8 the jury and on the record. You may continue, Mr. Musgrave. 9 A Can I finish the answer that Z was -- 10 Q Yes, you may finish. 11 THE COURT: Oh, I didn't realize, you hadn' t finished 12 your answer. 13 THE WITNESS: No. 14 THE COURT: Go ahead. 15 A As I was going to say, let's see, the statute was 16 adopted, as I recall, in October, 1976 effective January 1 of 17 '77, and during the period since then there have been only two 18 complaints Issued by the EPA alleging violation of Section S(e). 19 One of these was several years ago against American Cyanamld, 20 and the second was very recently, just a month or two ago V-''1 21 against Union Carbide. The first one was not contested. The 22 second one is in such an early stage here that it's not known 23 yet what's going to happen. 24 Q . All right. 1 A But there has been no judicial interpretation of 2 Section 8 (e). 3 Q Getting back to the statute though itself, you as a 4 lawyer and in simply reading this statute and maybe even as a 5 layman from the plain language of it where it talks about any 6 person who manufactures, processes or distributes in commerce 7 a chemical substance or mixture, and then it states, and who 8 obtains information which reasonably supports the conclusion 9 that such substance or mixture presents a substantial risk of 10 injury to health or the environment, and then it says, shall 11 Immediately inform the administration of such information, 12 what information do you read that in this plain language of the 13 statute to be being talked about, sir? 14 A It would be information indicating a substantial risk 15 of injury. 16 Q Information which reasonably supports the conclusion? 17 A Yes. 18 Q That the mixture, the chemical or the mixture -- 19 A Presents a substantial risk. 20 Q -- presents a substantial risk of injury to the healt 21 or the environment? 22 A Right. Q Now -- And then it's that information that supports that conclusion that has to be reported, sir? 1 A That's correct. 2 Q Unless the EPA already has that Information? 3 A That' 8 right. 4 Q Now so the question Is what Is that Information as 5 set out In the statute that supports this conclusion, Is that 6 right? 7 A That's right. 8 Q Now If you had a tank car, sir, that was filled with, 9 let's say, 2,3,7, 8 TCDD and you notified the EPA that you had 10 a tank car that was filled with 2,3,7,8 TCDD and you told them 11 nothing more, sir, would that in and of Itself be information 12 that supports the conclusion that the substance or mixture 13 presents a substantial risk of injury to 4 > ^ health or the 14 environment? 15 A I don't think that would be sufficient. 16 Q That the EPA didn't know about, let'ftqmt it.that way. 17 A Umhm. 18 Q Your answer, sir? 19 A X think that something more would be required. 20 Q Maybe that's an over dramatization, but the informatlo 21 then is what do you know about the effects of this product that 22 make it cause a substantial risk of injury to health .or the 23 environment? 24 A . Yes, what are the,health effects. 'i 1 Q All right. Now then turning to the policy and the 2 EFA's Interpretation of this statute I'd like to direct your 3 attention first of all to the third column on the first page 4 down there at the bottom.under Item No. IV. It states "Numerous 5 commentors requested clarification of different aspects of 6 Part IV of the September 9 proposal " Was there an earlier 7 proposal of a policy that had been commented on? 8 A Yes. Is that Part V? 9 Q . Yes Part V I'm sorry Roman numeral V. 10 A I think there was an earlier publication where the 11 EPA:dld ask for some comments and some were made. 12 Q And that Part V they then Identified by putting It 13 in parenthesis and It says that being Information which 14 reasonably supports a conclusion of substantial risk? 15 A Yes. 16 Q And they go on and say particularly concerning envlroi 17 mental effects and suggested different interpretations of what 18 constitutes a substantial risk and then it states, does It not, 19 sir, "The agency continues to focus in this policy statement 20 on the effects set forth in the September 9 proposal, but 21 clarifies that the substantiality of a risk is a function of 22 both the seriousnessLbf the effect and the probabllty of its 23 occurrence", and then it refers the reader to Part Roman numeral 24 V of this policy statement, isn't that correct? 1 A That's correct. 2 Q So, at the outset here they're talking with regard to 3 what constitutes a substantial risk to two functions. One is 4 the seriousness of the effect of this chemical or mixture of 5 chemicals, isn't that correct? 6 A That's right. ^ 7 Q And second is -- and the second is the fact or 8 probability of its occurrence? 9 A Yes, 10 Q And those two functions are connected by the word 11 "and", are they not, sir? 12 A Yes. 13 Q And does that normally mean that both of them must 14 be present for there to be a determination that there is a sub 15 stantial risk? 16 A Yes. 17 Q It's not either/or, one or the other, it's ,both? 18 A The word both is used in that sentence. 19 Q All right. Now the seriousness of the effect, which 20 Is one of these two functions of what constitutes a substantial 21 risk, that's referred to in Part V of this policy statement, 22 is it not? 23 A Part V describes what constitutes substantial risks. 24 Q Right. And it talks about the effects, does it not? 65 A Yes. Q Turning to the second page of the exhibit there in Column 3 on the far right there*s the section that commences with the: heading Roman Humeral V, What Constitutes Substantial Risk, and it says at the beginning there, A substantial risk of injury to health or the environment is a risk of considerable concern because of (a), the seriousness of the effect and then it refers you to see Subparts a, b, c, below for illustrative effects of concern. A That's correct. Q > So hare it's saying okay, these two functions, the first one being seriousness of effect what we're talking about are things like a, b, and c, is that right? A That*8 correct. Q So let's just go now to a, b, and c, which are then followed on the next page, and (a) talks about human health effects? A That's right. Q Is that right? A That's correct. Q And it speaks of human health effects, and it describes some, cancer, birth defects, etc. or serious or prolonged in capacitation, including the loss of or ability to use normal bodily functions, and it goes on whatever, but that's -- 66 vi 1 2 3 A That's right. Q But that's one type of serious effect? A Right. 4 Q -- that they're saying constitutes substantial risk? 5 A Human health effects, right. 6 Q And then they go on down, let's just go to (b) here. 7 They talk about environmental effects, vide spread and previous! 8 unsuspected distribution in environmental media as indicated in 9 studies, excluding material contained within appropriate dis 10 posal facilities, and it's got another example under 2 and 3 an<jl 11 4; there, does it not? 12 A Yes. 13 Q So you've got human health effects, environmental 14 effects, and the last serious effect that they talk about is 15 (c) down there at the bottom of this first column on the third 16 page, emergency incidents of environmental contamination? 17 ' A Yes. 18 Q And does that talk about -- well, let's just read 19 it. It says "Any environmental contamination by a chemical 20 substance or mixture to which any of the above adverse effects 21 -r those are the ones we've just been through -- 22 A Yes, sir. 23 Q -- "has been described and which because of the L - -/>24-s pattern, extent and amount of the contaminant, and then it goes -* ..''* '-IS!'?, A \ / s s t . ; `- . v - , - y - r v / ;- .-`V h--V'v-l ` 'Y I i ahead and talks again about seriously threatens humans with 2 cancer and those types of effects previously described? 3 . A Right 4 Q So in looking at the first function of this test of 5 substantial risk to see If there is one there one considers 6 the seriousness of the effect and does it meet the types of 7 examples that EPA has given Isn't that correct? 8 A That's right 9 Q Now In looking at the seriousness of the effect do 10 you look at the product that Is in front of you the mixture U of chemicals that are in it as it is there and determine whether, l i _ 12 that chemical as constituted with those mixtures and levels of 13 different chemicals in It whether It has a serious effect? 14 A It/s the entire product. 15 a * Q It's the.entire product? t 16 > A Yes* 17 Q I want Co continue on that In a minute but before I o i C 18 do if you were hypothetically speaking to determine that a J e $> 19 particular product did cause one of these serious effects after j 20 looking at the entire product and you had information and wa'l L 'li 21 talk about what kind of Information that Is In a minute but 22 you had information that told you that there was a serious 23 effect then the second function also has to be considered as 24 stated In the policy does it not? 1 A Yes * 2 Q And that second function then is the probability of 3 its occurrence? 4 A That1s right. 5 Q Isn't that right? Now going back to Page 2 of this 6 where we -- in that far right hand column under Homan Numeral 7 V which constitutes substantial risk, we pointed out that the 8 seriousness of the effect as described or as examples are 9 described in a* b, and c, which we've been through And Nr. 10 Carr than picked out of the entire context of this policy 11 statement of several pages one sentence here on Plaintiff* s 12 r- i Exhibit 1293, and that sentence is contained just below that 13 portion of Paragraph Roman Numeral V that we were: reading from 14 when we got over to what the serious effects were, isn't that 15 correct? / 16 A Yes. 17 Q And in fact, in the beginning of Roman Numeral V 18 after it lists and refers you to a, b, and c for the seriousnes 19 of effects that they're talking about, it t h e n g o e s o n a n d s a y s 20 and (b), It reiterates again the second function of what con 21 stitutes A substantial risk, it says, and (b), the fact or prob 22 ability of its occurrence. And then it goes on, does It not, 23 and starts to talk about exposure and what you look at with 24 regard" to exposure when you have satisfied the first function, 1 does It not? 2 A Yes. 3 Q When you have determined that there is a serious effec 4 And in fact* it states, these two criterion, that Is, the 5 seriousness of the effect and the fact or probability of its 6 occurrence, are differently weighted for different types of 7 effects. It says the human health effects described in Sub- 8 paragraph (a) below, the one we just read, it says If you've 9 got that kind of serious effect and you've already established 10 that you've got that kind of serious effect, the EPA then says 11 n its policy statement, does it not, sir, that theyare so 12 serious that relatively little weight is given to exposure? 13 A Yes. 14 Q . So if you have established the first function of the IS test, that is, that you have a serious health or serious, as 16 they say, a serious effect from this chemical or its mixture, 17 then you give little weight -- little weight to exposure 18 in determining whether it has to be reported even though it is 19 a serious health effect? 20 A Yea. 21 Q Now, let's get back to the first function, the seriow 22 effect. You told us, I believe, that you look at the. entire 23 chemical that you've got there and its makeup and the portions <ji 24 *ker chemical8 that might be in it to determine if the whole f* *i' '. , V.., .. ;"iL ; ^ 1 or ^any portions in it at those levels would have one of these 2 serious effects, isn't that correct? 3 A Yes, the entire product is considered 4 Q And to determine if there is a serious effect what 5 you're supposed to report, getting back to the meaning of the 6 statute, is information, isn't that: right? 7 A That's right* 8 Q Information which reasonably supports the conclusion 9 that the substance or mixture presents a substantial risk of 10 injury. So you have to have information which reasonably 11 supports the conciliaion of both functions of what constitutes 12 substantial risk, serious effect and exposure, all right? 13 A Yes. 14 Q Now, there's a definition of substantial risk infor* IS mation. What kind of information are we talking about, and d o n ' 16 they define that in this policy statement? 17 A They do, but they define it in terms of itself. 18 Q All right. And that's again though on Page 2? 19 A . Umhm. 20 Q Under definitions, isn't it? 21 A Yes. 22 Q In the first column. Page 2? 23 A Right. Last paragraph under definitions. 24 Uh-huh. And it says the term substantial frisk infor* 1 mation means information which reasonably supports the con 2 clusion that a chemical substance or mixture presents a sub 3 stantial risk of injury to health or the environment/ right? 4 A Yes. S'- Q So that is almost using the very language of what is 6 being defined to define itself? 7 A Yes * 8 Q But do they not have in the policy statement another 9 section that deals on this topic of substantial risk information' 10 A Section VI describes the nature. 11 Q All right. "That's on the third page, isn't it? 12 A Yes, utnhm. The nature and sources of information. 13 Q So there's a whole section in here that deals with 14 -- it's entitled Section Homan Numeral VI Nature and Sources 15 of Information which .Reasonably/ Supports the Conclusion of 16 Substantial Risk? 17 A Yes. 18 Q So in this section they're going to finally tell us 19 what kind of Information is this we've got to have or that we 20 look at to determine if there is a substantial risk if there 21 are serious effects? 22 A That's right. 23 MR. MUSGRAVEj Your Honor, would this be a good 24 point? - THE COURT: You going into a now section? MR. MUSGRAVE : Yes, fine. THE COURT: Ladies and gentlemen we'll break for lunch at this time. We'll resume again at 1:30. The admonish ments which I've given you earlier will apply during this lunch break also. Court's in recess. 1 STATE OF ILLINOIS ) ) SS 2 COUNTY OF ST. CLAIR ) 3 4 I, MARSHA SCHNIPPER, one of the Official Court Re 5 porters in and for the Twentieth Judicial Circuit of the State 6 of Illinois, and the Official Court Reporter who reported the 7 proceedings had at the hearing of Frances E* Kenner et al. vs. 8 Monsanto Company, No. 80-L-970, on the 16th day of April, 1985, 9 do hereby certify that the above and foregoing is a true and 10 correct transcript of the proceedings had at said hearing, H which proceedings were reported by me in shorthand and by me 12 correctly transcribed. 13 14 15 16 17 18 Official Court Reporter 19 20 21 22 23 24 ] STATE OF ILLINOIS ) ) 2 TWENTIETH JUDICIAL CIRCUIT ) SS 3 COUNTY OF ST. CLAIR ) ) 4 5 I, RICHARD P. GOLDENHERSH, Circuit Judge In and for 6 the Twentieth Judicial Circuit of the State of Illinois, and 7 the sole presiding Judge In the aforesaid cause on the 16th day 8 of April, 1935, do hereby certify that I have examined the 9 aforesaid transcript of the proceedings and further certify 10 that the same Is a true and correct transcript of said pro 11 ceedings had in said cause. ' / 12 Dated this_______ day of April, 1935. 13 14 IS 16 17 18 19 20 21 22 23 24