Document 7RzpOyyNnZoOYG9QvZ55oJOVE

HOWARD KUSNETZ Page 1 CAUSE NO. A-030272CC ANN STUBBS, Individually ) IN THE DISTRICT COURT OF and as Representative of ) the Estate of BEN L. ) STUBBS, Deceased, ) ) Plaintiff, ) ) vs. ) ORANGE COUNTY, TEXAS ) RADIATOR SPECIALTY ) COMPANY; et al., ) ) Defendants. ) 128TH JUDICIAL DISTRICT ) ) HERBERT W. WILKINSON and ) IN THE DISTRICT COURT OF PEGGY S. HERBERT, ) ) Plaintiff, ) ) vs. ) ORANGE COUNTY, TEXAS ) RADIATOR SPECIALTY ) COMPANY; et al., ) ) Defendants. ) 128TH JUDICIAL DISTRICT ******************************************************** ORAL VIDEOTAPED DEPOSITION HOWARD KUSNETZ MARCH 3, 2006 ******************************************************** ORAL VIDEOTAPED DEPOSITION OF HOWARD KUSNETZ, produced as a witness at the instance of the Plaintiffs and duly sworn, was taken in the above-styled and numbered cause on MARCH 3, 2006, from 10:04 a.m. to 1:05 p.m., before Anne F. Sitka, Certified Shorthand Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ Page 2 1 Reporter in and for the State of Texas, reported by 2 computerized stenotype machine at the offices of 3 Fulbright & Jaworski, LLP, 1301 McKinney, Suite 5100, 4 Houston, Texas 77010, pursuant to the Texas Rules of 5 Civil Procedure and the provisions stated on the record 6 or attached hereto. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ Page 3 1 APPEARANCES 2 3 FOR PLAINTIFFS: 4 Ms. Denyse F. Clancy BARON & BUDD, P.C. 5 3102 Oak Lawn Avenue, Suite 1100 Dallas, Texas 75219 6 FOR SHELL CHEMICAL, LP AND SHELL OIL COMPANY: 7 Mr. Brett Young 8 FULBRIGHT & JAWORSKI, LLP 1301 McKinney, Suite 5100 9 Houston, Texas 77010 10 FOR UNION CARBIDE CORPORATION: 11 Ms. Catherine R. Riegle KING & SPALDING, LLP 12 1100 Louisiana, Suite 4000 Houston, Texas 77002 13 FOR RADIATOR SPECIALTY: 14 Ms. Stacy Yates 15 Mr. Todd Lonergan COATS ROSE 16 3 Greenway Plaza, Suite 2000 Houston, Texas 77046 17 FOR ATLANTIC RICHFIELD: 18 Ms. Susan L. Price 19 MCLEOD, ALEXANDER, POWEL & APFFEL, P.C. 802 Rosenberg 20 Galveston, Texas 77550 21 FOR EXXON, ETHYL, AMERICAN CHEMISTRY COUNCIL: 22 Ms. Elizabeth Eve Baker BAKER BOTTS, LLP 23 One Shell Plaza 910 Louisiana 24 Houston, Texas 77002 25 Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 1 ALSO PRESENT: Page 4 2 Mr. Wesley M. Harris, Senior Counsel, Shell Oil 3 Mr. Ron Mayfield 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ Page 5 1 INDEX PAGE 2 Appearances ...................................... 3 3 HOWARD KUSNETZ 4 Examination by Ms. Denyse Clancy ............ 6 5 Signature and Changes ............................ 138 6 Reporter's Certificate ........................... 140 7 8 EXHIBITS 9 NO./DESCRIPTION PAGE 10 No. 1 ............................................ 6 11 CV 12 No. 2 ............................................ 6 13 Notice 14 No. 3 ............................................ 6 15 Prior deposition of Mr. Kusnetz 16 No. 4 ............................................ 7 17 MSDS 18 No. 5 ............................................ 27 19 Exposure description worksheet 20 21 22 23 24 25 Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:03:52 10:05:15 10:05:19 10:05:19 10:05:27 10:05:27 10:05:27 10:05:28 10:05:29 10:05:30 10:05:31 10:05:33 10:05:36 10:05:38 10:05:39 10:05:40 10:05:40 10:05:44 10:05:46 10:05:49 10:05:53 10:05:55 10:05:57 10:06:00 10:06:04 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 THE VIDEOGRAPHER: We're beginning this deposition. Today's date is March 3rd, 2006. The time is approximately 10:04 a.m. We're now on the video record. HOWARD KUSNETZ, having been first duly sworn, testified as follows: EXAMINATION BY MS. CLANCY Q. Could you please state your name for the record? A. I'm Howard Kusnetz. Q. I'm Denyse Clancy. And do you understand that I represent the plaintiffs in the Wilkinson and Stubbs' lawsuits against Shell Oil Company? A. Yes, I do. (Exhibit 1, 2 and 3 marked) Q. (By Ms. Clancy) Okay. I'm going to -- just preliminary matters, it's my understanding that you reviewed two documents prior to your deposition today; is that right? And I'm going to enter them as Exhibits 1 and 3 and ask you to confirm that those were the documents you reviewed. A. Right. Well, one I produced, which is my CV; and the other one is my deposition in a previous case, yes. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:06:04 10:06:07 10:06:10 10:06:15 10:06:17 10:06:17 10:06:18 10:06:18 10:06:18 10:06:18 10:06:19 10:06:19 10:06:19 10:06:20 10:06:27 10:06:30 10:06:33 10:06:34 10:06:35 10:06:36 10:06:41 10:06:42 10:06:46 10:06:50 10:06:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 Q. Okay. Did you review any other documents in preparation for your deposition today? A. No. MR. YOUNG: And, Denyse, he also looked at that MSD that I handed you. MS. CLANCY: Oh, thank you. THE WITNESS: Oh, I'm -MR. YOUNG: I thought those were the two that you were handing him. MS. CLANCY: I forgot. THE WITNESS: Okay. (Exhibit 4 marked) Q. (By Ms. Clancy) So, I'm going to mark as Exhibit 4 the material safety data, that sheet marked benzene. A. Right, I saw that. I didn't review it, but I saw that this morning. Q. All right. Who gave that to you? A. Mr. Young. Q. Okay. How much are you being paid to testify today? A. My testimony isn't for sale, Ms. Clancy. I'm being paid for my time, and I charge $600 an hour for that? Q. And who are you charging $600 an hour? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:06:54 10:07:01 10:07:01 10:07:01 10:07:11 10:07:13 10:07:14 10:07:14 10:07:18 10:07:18 10:07:23 10:07:26 10:07:29 10:07:30 10:07:31 10:07:33 10:07:33 10:07:35 10:07:36 10:07:39 10:07:43 10:07:46 10:07:47 10:07:51 10:07:55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 8 A. I'll send my bill to Shell. Q. Okay. MS. CLANCY: And object to the nonresponsive portions of that answer. Q. (By Ms. Clancy) You're not an employee of Shell, correct? A. That's correct. Q. Okay. And when were you last an employee of Shell? A. The end of February, 1991. Q. Okay. What did you and Mr. Young talk about prior to your deposition today? MR. YOUNG: Object to the form of the question. Don't answer that. Q (By Ms. Clancy) You can answer the question. MR. YOUNG: Denyse, I'm going to have to instruct the witness not to answer. MS. CLANCY: He is not an employee of Shell, he's a paid consultant of Shell. What is your basis for him not answering this question? MR. YOUNG: Your question, as phrased, is broad enough to certainly call for priviledged information. It's true that Mr. Kusnetz is not an employee; but in his conversations with us, when he was a Shell employee, are covered by attorney/client Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:07:56 10:07:58 10:07:59 10:08:02 10:08:03 10:08:04 10:08:06 10:08:10 10:08:10 10:08:13 10:08:17 10:08:19 10:08:21 10:08:24 10:08:24 10:08:26 10:08:27 10:08:31 10:08:35 10:08:35 10:08:38 10:08:39 10:08:42 10:08:46 10:08:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 9 privilege. I'm going to instruct him not to answer those questions. Q (By Ms. Clancy) You were last an employee of Shell in 1991, correct? A. Correct. Q. Have you ever had a discussion with Mr. Young prior -- at or prior to 1991? A. No. Q. Okay. What have you talked about with Mr. Young subsequently to the year 1991? MR. YOUNG: Same objection. Howard, you don't have to answer that question. Q (By Ms. Clancy) What have you discussed with Mr. Young subsequent to the year 1991 when you were last an employee with Shell? MR. YOUNG: Same objection. Hold on, Howard. I'm not trying to be combative in any way, but your questions are calling for attorney/client privileged information. They're inappropriate, and I'm not going to let him answer them. MS. CLANCY: Okay. We're going to take this up with the Court. This is clearly not an -currently an employee of Shell. He has never been an employee of Shell when he has had any conversations with you. And he is now paid to be giving testimony today in Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:08:54 10:08:57 10:08:59 10:09:02 10:09:04 10:09:07 10:09:08 10:09:11 10:09:15 10:09:16 10:09:17 10:09:19 10:09:19 10:09:26 10:09:33 10:09:38 10:09:42 10:09:43 10:09:45 10:09:48 10:09:49 10:09:51 10:09:54 10:09:55 10:09:56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this case by Shell. So, I am entitled to know Page 10 everything that he discussed with you prior to this deposition. And I'm going to ask the Court that you produce him again for cost, so, consider yourself duly -- at your cost -- duly warned. Q. (By Ms. Clancy) I'm going to ask you again: What did you talk about with the attorneys from Fulbright prior to your deposition in this case? MR. YOUNG: Same objection. Don't answer it. Q (By Ms. Clancy) Are you refusing to answer the question? A. On the basis of Mr. Young's comments, yes. Q. The Shell Exposure Assessment Study that -- that was performed in the years -- in the early 1980's, that was performed according to the highest state of the art standards; is that right? MR. YOUNG: Object to the form. A. Yes, as far as we could get it done that way, yes, that's correct. Q (By Ms. Clancy) Well, you would agree with me, right, that it was performed to the highest state of the art, correct? MR. YOUNG: Object to the form. A. We tried to do that, yes, sure. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:09:57 10:09:58 10:10:01 10:10:02 10:10:04 10:10:04 10:10:06 10:10:08 10:10:09 10:10:11 10:10:12 10:10:13 10:10:17 10:10:20 10:10:21 10:10:25 10:10:26 10:10:28 10:10:34 10:10:35 10:10:39 10:10:42 10:10:44 10:10:46 10:10:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 11 Q. (By Ms. Clancy) Okay. And it was indeed the highest state of the art, correct? MR. YOUNG: Object to the form. Q (By Ms. Clancy) Was it or not? MR. YOUNG: Object to the form. A. Yes, I think I've answered that. Q (By Ms. Clancy) It was the highest state of the art, correct? A. As far as we knew, yes. MR. YOUNG: Object to the form, asked and answered. Q. (By Ms. Clancy) Okay. Would you agree then -I'm going to show you a document labeled -- MS. CLANCY: And just for clarification, I've had to -- the documents that I went through in preparation for Mr. Kusnetz' deposition were at that time the ones that were not produced to us that were not bates labeled yet, and so we put in an internal labeling system on them. So, I will just read for the record the number that is on our internal numbering system. And I will, as best I can, identify the document for the record. Q (By Ms. Clancy) I want to show you a letter that you wrote in February 10th, 1984, to Mr. Thorn Octor, the assistant secretary for Occupational -- Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:10:58 10:11:01 10:11:04 10:11:04 10:11:06 10:11:09 10:11:12 10:11:17 10:11:18 10:11:30 10:11:32 10:11:37 10:11:39 10:11:41 10:11:43 10:11:46 10:11:50 10:11:52 10:11:53 10:12:00 10:12:02 10:12:05 10:12:09 10:12:11 10:12:13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 12 Occupational Safety and Health. I'm going to read you a sentence from it. And I'm going to ask you a question about it. (phonetic) The sentence that you wrote says, we fully believe that the methods used to make the estimates of -- represent the maximum care and highest state of the art of such historic data estimates. And I show you that sentence right here. A. I want to see it in context. Q. Okay. Did you write the words with respect to the historic data assessment study, we fully believe that the methods used to make the estimates represent the maximum care and highest state of the art of such historic data estimates? Did you write those words? A. I believe, if my signature is on the letter, let me just check that, then I wrote the letter. Q. Okay. So, you wrote the words that the -A. That's correct. Q. You wrote the words that the estimates with respect to Shell's historic data -- excuse me -- you wrote the words that the estimates used by Shell in order to do its exposure reassessment represent the highest state of the art; is that correct? MR. YOUNG: Object to the form. A. Yes, it's written there. It's obvious, yes. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:12:14 10:12:17 10:12:18 10:12:18 10:12:20 10:12:25 10:12:30 10:12:31 10:12:32 10:12:45 10:12:52 10:12:56 10:12:57 10:13:01 10:13:03 10:13:04 10:13:05 10:13:06 10:13:07 10:13:10 10:13:11 10:13:12 10:13:12 10:13:14 10:13:14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 13 Q (By Ms. Clancy) Okay. Are you retracting that statement in any way today? A. No. Q. Okay. So, you stand by your statement that you wrote in 1984 that the estimates used by Shell in the exposure reassessment study represent the highest state of the art? You stand by those words, correct? A. Those words, then, sure. Q. Okay. And in order to perform the exposure estimates that Shell did with respect to the historic benzene exposure study, Shell did not rely on actual monitoring data, correct? A. Well, there was -- were no data. That's why we had to go back and estimate. Q. Right. So -- MS. CLANCY: Object to nonresponsive portion of that. Q (By Ms. Clancy) You did not rely on actual monitoring data in performing the historic exposure -benzene exposure study, correct? MR. YOUNG: Object to the form. Asked and answered. A. We couldn't. There were no data. Q. (By Ms. Clancy) Okay. A. That's correct. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:13:14 10:13:15 10:13:17 10:13:22 10:13:26 10:13:29 10:13:30 10:13:31 10:13:47 10:13:58 10:14:03 10:14:07 10:14:10 10:14:11 10:14:11 10:14:21 10:14:23 10:14:27 10:14:31 10:14:34 10:14:38 10:14:46 10:14:55 10:14:55 10:14:57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. That is correct, right? Page 14 A. I just said that's correct. Q. Okay. And, further, the method, what you used is, you based your exposure estimates based on inhalation exposures, correct? MR. YOUNG: Object to the form. A. Not correct, no. Q (By Ms. Clancy) Okay. I'm going to read you a sentence from the copy of the historic benzene exposure study that you enclosed in your letter to the assistant secretary for Occupational Safety and Health on February 10th, 1984. And I'm going to ask you a question about that sentence. Okay? A. Fine. Q. Okay. This -- this sentence says under the introduction and background section with respect to the historic benzene exposure study, the study represents a massive undertaking to ascertain probable inhalation exposures of individuals based upon a study of the types of equipment, processes and procedures used in the two petroleum refinery. Can I show you the sentence? A. No, but what you asked -- Q. Well, I haven't asked a question yet. A. Oh, no, you did. And that's when I said not correct. You said was this -- Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:14:58 10:14:59 10:15:00 10:15:02 10:15:02 10:15:05 10:15:07 10:15:08 10:15:08 10:15:08 10:15:10 10:15:10 10:15:12 10:15:15 10:15:18 10:15:23 10:15:23 10:15:24 10:15:25 10:15:52 10:15:54 10:15:58 10:16:04 10:16:07 10:16:14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 15 THE WITNESS: Could you read the question back? Q. (By Ms. Clancy) There's no question pending. A. Fine. Q. My question is -- I was just showing you that sentence so you could read it as well. A. That's fine. Q. Okay. A. Yeah. Q. May I have that back, please? A. Sure. Q. Okay. Would you agree with me that the sentence there says the study represents a massive undertaking to ascertain probable inhalation exposures of individuals based upon a study of the types of equipment, processes and procedures used in the two petroleum refineries? A. It's exactly what it says. Q. Okay. And the study also used in order to -the study also, in addition to doing a massive undertaking to determine probable inhalation exposures, the study -- well, let me back up. In order to do -- to ascertain probable inhalation exposures, one of the criteria that this study used was estimates of inhalation by use of people's recollection of what Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:16:19 10:16:22 10:16:24 10:16:25 10:16:29 10:16:32 10:16:35 10:16:36 10:16:37 10:16:39 10:16:40 10:16:41 10:16:41 10:16:41 10:16:44 10:16:50 10:16:50 10:16:53 10:16:54 10:16:56 10:16:58 10:17:00 10:17:01 10:17:02 10:17:02 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 benzene odors they smelled; is that correct? Page 16 MR. YOUNG: Object to the form of the question. A. Not quite. We asked a lot of questions, among which were questions of visual spills and so on. Recollections of what happened. Odor was one of many things we looked at. Q (By Ms. Clancy) Okay. What else did you look at besides odor? MR. YOUNG: Object to the form of the question. MS. CLANCY: Basis? MR. YOUNG: It's in the document that you have in front of you. If you want to know what's in the document, you can read it or the witness can read it. MS. CLANCY: Your objection is based on you're not letting him explain the other criteria they used in the benzene historic exposure analysis because it's in the document in front of me? MR. YOUNG: He can explain it. I didn't instruct him not to answer. I'm just objecting to the question. Q (By Ms. Clancy) Okay. Go ahead, answer the question. A. You guys finished yet? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:17:04 10:17:06 10:17:09 10:17:12 10:17:12 10:17:13 10:17:15 10:17:17 10:17:18 10:17:22 10:17:25 10:17:25 10:17:27 10:17:27 10:17:28 10:17:28 10:17:31 10:17:35 10:17:38 10:17:41 10:17:44 10:17:50 10:17:52 10:17:55 10:17:59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Yes. Page 17 A. The sentence you read indicates procedures and so on. We looked at engineering drawings. We looked at procedures. Q. Okay. Hold on a second. You looked at engineering drawings? A. Well, I can read that sentence back to you, which indicates what we used. Q. Well, my question is, what criteria did you use to ascertain probable inhalation exposures of individuals? A. As I indicated here -- Q. Okay. A. -- in this summary -- Q. All right. A. -- we looked at -- study the types of equipment being used. We looked at the processes being used. We looked at the procedures being used. We included in the sentence you didn't read, but the following sentence says, we also included recollection of work practices. We included subjective estimates of benzene odors and so on. And we just kept going at that. Odors were only one of the many items. We would ask did you see leaks, did you see spills, were there incidents of benzene escaping, were there fugitive emissions. I mean -- and Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:18:04 10:18:08 10:18:13 10:18:16 10:18:16 10:18:18 10:18:21 10:18:22 10:18:22 10:18:24 10:18:25 10:18:25 10:18:27 10:18:28 10:18:29 10:18:34 10:18:37 10:18:38 10:18:38 10:18:43 10:18:45 10:18:48 10:18:55 10:18:55 10:18:55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 18 those are probably in the body of the report some place. But this is just a summary. But, certainly, the two sentences I read you there, about four or five different criteria. Q. Okay. And one of the -- and the four or five different criteria that you just listed are, you looked at the types of equipment being used? A. Right. Q. You looked at the processes being used, correct? A. Right. Q. You look at recollection of work procedures, correct? A. Right. Q. And that recollection of work procedures was based on individual's recollection of what the work procedures were; is that right? A. Sure. Q. Okay. Also subjective estimates. What did you mean by subjective estimates? A. Just what it says here. What did you think happened? What -- did you -- were there any untoward odors? Did you see spills and so on? Q. Okay. So, you interviewed people as to whether or not they saw spills or leaks for -- Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:18:57 10:19:00 10:19:02 10:19:03 10:19:05 10:19:06 10:19:08 10:19:08 10:19:09 10:19:12 10:19:15 10:19:18 10:19:22 10:19:25 10:19:27 10:19:27 10:19:30 10:19:34 10:19:37 10:19:39 10:19:40 10:19:40 10:19:42 10:19:44 10:19:44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 19 A. We -- yeah, we interviewed people on a lot of things. What happened -- what was work like when you worked there? Q. All right. And I'm just trying to determine what the -- what kind of questions you're asking in order to do a state of the art exposure assessment. Okay. A. That's correct. Q. Okay. And the things that you asked in order to do a state of the art exposure assessment were, what were the -- and let me back up. At the time that you were conducting this historic exposure assessment, you were the manager of health and safety for Shell? A. For safety and industrial hygiene, correct. Q. Yeah. Okay. So, as manager of safety and industrial hygiene for Shell in the 1980's, when you were conducting a state of the art exposure assessment, the criteria you were looking at included what odors the people recollect smelling; is that correct? A. Well, that's one of the -Q. One of -A. -- minor criteria, sure. Q. You're now testifying that the odor recollection is a minor criteria that you used in -A. We did not -- we did not base our -- I'm Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:19:48 10:19:50 10:19:55 10:19:57 10:19:58 10:19:58 10:20:02 10:20:04 10:20:05 10:20:05 10:20:07 10:20:10 10:20:12 10:20:20 10:20:20 10:20:22 10:20:25 10:20:28 10:20:30 10:20:34 10:20:34 10:20:34 10:20:39 10:20:42 10:20:42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 20 testifying that we did not base our estimates on the odor criteria per se. It had to be taken in context. Q. Okay. It was one of the criteria that you used? A. Sure. Q. Okay. And other criterias you used were individual's recollections of spills and leaks they may have seen; is that correct? A. Of course. Q. Okay. And other criteria used is recollections of the work practices being employed; is that right? A. Well, not only recollections but whatever records there may have been of work practices. Q. Okay. And -A. I think there are detailed questions and detailed -- more details of the protocol. All this is a summary, but that should be in the report. Q. Well, sir, you're the one -- one of the people -- the key people who conducted this historic exposure assessment. And this is my only chance to get to talk to you prior to going to trial in this case. So, I would like your expert opinion as to what were the criteria going into the state of the art exposure assessment. A. Fine. As far as I can remember, and I'd be Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:20:45 10:20:47 10:20:50 10:20:51 10:20:54 10:20:55 10:20:56 10:20:58 10:21:02 10:21:03 10:21:08 10:21:12 10:21:14 10:21:17 10:21:20 10:21:21 10:21:25 10:21:27 10:21:29 10:21:33 10:21:35 10:21:36 10:21:36 10:21:38 10:21:41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 21 happy to help you, but they're in the report and I'd have to perhaps look to refresh my memory. Q. Well, you can look at it as much as you want. A. Well, that's a thick report. Why don't you go ahead and ask your questions and let's see what we -what we get? Q. Okay. That's what I would like to do. A. Okay. Q. Okay. So, what I have so far is the criteria being used by Shell to conduct a state of the art exposure assessment is types of equipment used, the -one, that's one criteria? A. Right. But that's a broad criteria. It would include engineering drawings. It would include designs and so on. Q. Okay. The processes being used, correct? A. The processes being used, that's correct. What the standards were on when you break a line. What happens when you handle something and so on. Q. The recollection of the work procedures; is that right? A. Sure. Q. Okay. And that would be each -- you interviewed individuals and asked them what they recalled about the work procedures, correct? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:21:43 10:21:43 10:21:46 10:21:48 10:21:48 10:21:50 10:21:51 10:21:52 10:21:53 10:21:56 10:21:57 10:21:57 10:22:00 10:22:04 10:22:05 10:22:08 10:22:10 10:22:11 10:22:15 10:22:18 10:22:19 10:22:21 10:22:26 10:22:27 10:22:28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Right. Page 22 Q. Okay. And you also asked them what they recalled about leaks and spills, correct? A. Right. Q. Okay. And you also asked them what the individuals recalled about odors, correct? A. Right. Q. And you also asked them about what they recalled about seeing any fugitive emissions; is that right? A. Right. Q. Okay. And when you interview people, you not only interviewed them based on their own work practices, but you may have interviewed people additionally based on trying to recollect what happened with respect to a coworker, correct? A. Probably. I don't recall those details. I personally did not get involved in the interviews. So, I'd have to -- whatever I'm giving you is secondhand, is what I believe had happened. Q. Well, some of the folks that you were trying to do an exposure reassessment for were deceased, right? A. Yes. Q. Okay. So, you couldn't talk to them to ask -- A. Obviously. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:22:28 10:22:30 10:22:33 10:22:33 10:22:36 10:22:41 10:22:46 10:22:48 10:22:51 10:22:54 10:22:55 10:22:59 10:23:02 10:23:07 10:23:08 10:23:08 10:23:09 10:23:10 10:23:11 10:23:12 10:23:14 10:23:18 10:23:20 10:23:24 10:23:26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 Q. Right. So, you had to ask some of their co-workers as to what happened with them, right? MR. YOUNG: Object to the form. A. Well, not necessarily. The questions may have been with regard to individuals. The questions may also have been with regard to the job or the area. And then we would have said, okay, if so and so was in that area, whatever you're telling us about that particular area, it would have applied to him or her. Q. (By Ms. Clancy) I see. So, you could extrapolate what their coworker would testify -- would talk about with respect to the conditions in the area where he worked and then extrapolate that to say what happened to the deceased person, is that correct? A. We would -- MR. YOUNG: Object to the form. A. We would try to do that. Yes, that's the only way you can do that. Q. (By Ms. Clancy) Okay. And that -- that was part of the method that you used for an analysis for a state of the art exposure assessment, is you'd -- is you -- is Shell would say, okay, the person's dead, so we're going to ask other folks who worked in the area what were the conditions in that area and then extrapolate from that data what type of exposure the Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:23:27 10:23:28 10:23:28 10:23:30 10:23:33 10:23:35 10:25:14 10:25:19 10:25:24 10:25:26 10:25:29 10:25:44 10:25:45 10:25:48 10:26:09 10:26:16 10:26:19 10:26:24 10:26:28 10:26:30 10:26:32 10:26:33 10:26:35 10:26:38 10:26:39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deceased person had; is that correct? Page 24 MR. YOUNG: Object to the form of the question. A. That's generally what we would try to do, sure. That's a summary of what we could do. Q (By Ms. Clancy) Okay. And one of the criteria used at -- in the Shell historic benzene exposure assessment was the sensory data of the person being exposed; is that correct? And I'll show you a Table 1 from the historic exposure assessment. A. That's correct. Let me refresh my memory. Okay. What is the question? Q. Okay. My question is, so, in developing -- okay. My question is, with respect to the benzene historic exposure study, one of the problems that you had in doing the benzene exposure study was that no benzene monitoring data was available for either Deer Park or for Wood River for certain of the subjects that you were trying to analyze; is that correct? A. Well, for certain the subjects. I don't know if there were no benzene -- if there were no benzene data at all or not. I don't recall that. Q. But certainly that was one of the problems that you were facing in that study? A. That we -- there was a tremendous lack of data, Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:26:45 10:26:45 10:26:46 10:26:50 10:26:55 10:27:00 10:27:02 10:27:03 10:27:04 10:27:06 10:27:09 10:27:09 10:27:11 10:27:16 10:27:20 10:27:20 10:27:22 10:27:25 10:27:25 10:27:28 10:27:32 10:27:33 10:27:33 10:27:34 10:27:36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yeah. Page 25 Q. Right. Okay. And then in order to provide a consistent basis for the exposure estimates, you had empirical data developed by the industrial hygienists based on sensory perception in order to estimate benzene exposures, correct? MR. YOUNG: Object to the form of the question. A. That was part of what we developed. That was one of the factors as we went over just a few minutes ago. Q. (By Ms. Clancy) Okay. And the table, the sensory perception data that you developed, was developed by review of known exposure conditions and data, correct? A. And also literature references. Q. And literature references? A. Sure. Q. Okay. So, it was generally accepted among peer-reviewed literature as a way to do benzene exposure estimates, correct? MR. YOUNG: Object to the form of the quesiton. A. You're mixing up two things. If you're asking me about this kind of table, we took the best data we Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:27:39 10:27:41 10:27:43 10:27:45 10:27:48 10:27:48 10:27:49 10:27:49 10:27:52 10:27:57 10:28:01 10:28:01 10:28:02 10:28:03 10:28:07 10:28:09 10:28:09 10:28:12 10:28:14 10:28:17 10:28:18 10:28:19 10:28:21 10:28:25 10:28:30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 26 could get from the literature extent at the time and with our consultants. And that's how we developed it. Q (By Ms. Clancy) And you wouldn't just take it from any literature. I mean, you wouldn't take it from somebody scribbling on a cocktail napkin, right? A. No, no. This is review -- peer-reviewed literature. Q. All right. So, you developed your benzene exposure estimates using sensory data such as odor events based on peer-reviewed literature, correct? MR. YOUNG: Object to the form of the question. A. We -- no. We developed our benzene exposure data partly on odor and partly on all of the other items that I've cited. Q. (By Ms. Clancy) Right. I -A. The exposure estimate was not on odor alone. Q. Right. But with respect to the odor portion, that was developed from peer-reviewed literature, correct? A. With respect to that portion, that's correct, as the table shows. Q. Okay. So, the table -- table 2-A basis for sensory perception for benzene exposure estimates, which Shell used in its state of the art benzene exposure Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:28:34 10:28:37 10:28:41 10:28:45 10:28:47 10:28:50 10:28:51 10:28:53 10:28:54 10:28:55 10:28:55 10:29:03 10:29:04 10:29:08 10:29:09 10:29:11 10:29:12 10:29:16 10:29:21 10:29:27 10:29:31 10:29:33 10:29:34 10:29:34 10:29:34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 27 assessment study, this table was developed from peer-reviewed literature with respect to how to best analyze a person's exposure based on a sensory perception; is that correct? A. Well, this is a different table from what you showed me here. Yeah. Q. Okay. So, it's Table 1 then? A. Well, you showed me Table 1. And that's what I commented on. Q. Okay. A. And Table 2 seems to be a -- a -- an outgrowth of Table 1. Q. Okay. And Table 1 was based on peer-reviewed literature? A. Yes. And the references are given right at the bottom of that table. Q. Okay. So, let me back up then. So, the basis for Shell's development of exposure estimates based on sensory perception, such as odor, were developed from sources such as peer-reviewed literature, correct? MR. YOUNG: Asked and answered five times. Object to the form. A. That's correct. (Exhibit 5 marked) Q (By Ms. Clancy) Okay. I'm going to hand you Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:30:24 10:30:32 10:30:40 10:30:44 10:31:06 10:31:08 10:31:11 10:31:16 10:31:17 10:31:18 10:31:21 10:31:23 10:31:26 10:31:28 10:31:28 10:31:29 10:31:29 10:31:30 10:31:33 10:31:34 10:31:35 10:31:35 10:31:38 10:31:38 10:31:40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 28 what is an exposure description worksheet. And I'm going to mark it as Exhibit 5 to the deposition. My first question is very simple, which is -- well, let me give you a chance to review that. A. Okay. What's your question? Q. First question is very simple: One of the criteria used to analyze the degree of exposure were looking at signs of headaches, nausea or dizziness; is that correct? A. Well, yeah. Let me just ask about this. There is no identification on this as to where it came from. All it says it's an exposure description worksheet. Are you saying this came out of the -Q. Yes. A. -- benzene exposure study? Q. Yes. A. Okay. Q. I can show it to you where it comes out of it, if you'd like. A. Okay. Well, no, that's fine. If it comes to bear -Q. I just pulled it straight from the -A. Okay. Q. -- benzene exposure study. A. I haven't looked at that study for 20 years, so Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:31:42 10:31:45 10:31:45 10:31:46 10:31:49 10:31:52 10:31:59 10:32:00 10:32:04 10:32:09 10:32:12 10:32:14 10:32:20 10:32:24 10:32:27 10:32:31 10:32:33 10:32:35 10:32:38 10:32:41 10:32:41 10:32:45 10:32:51 10:32:53 10:32:53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I need some refreshing. Page 29 Q. Okay. Well, take as much time if you need it. A. Okay. Go ahead. Q. Okay. So, my question is -- my first question is very simple, which is, were one of the criteria used to analyze the degree of exposure headaches, nausea or dizziness? A. There were eight classes. One of them -- one of the classes included headaches, nausea, dizziness. It also included tiredness, loss of coordination, drunk or high feeling. It's all in that one criterion. Q. Okay. So, if you had narcotic effects such as headaches, nausea, dizziness, tiredness, loss of coordinance, drunk or high feeling -- or high feeling, if you had one of those effects, that would put you in a degree of exposure F, right? MR. YOUNG: Object to the form. A. According to this, if -- if the individual reported that, then it would be listed under Column F, that's correct. Q (By Ms. Clancy) Okay. And "F" on the degree of exposure is towards the higher end of exposure, correct? MR. YOUNG: Object to the form. A. Yes. Q (By Ms. Clancy) Okay. A -- "A," if we're Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:32:54 10:32:58 10:33:01 10:33:05 10:33:06 10:33:14 10:33:19 10:33:24 10:33:27 10:33:31 10:33:32 10:33:34 10:33:36 10:33:37 10:33:39 10:33:41 10:33:43 10:33:53 10:33:57 10:34:01 10:34:02 10:34:02 10:34:06 10:34:07 10:34:07 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 30 looking at this, there's -- you're -- "A" seems to say closed system, no odor, which would mean the lowest amount of exposure or perhaps none at all, correct? A. That is correct. Q. Okay. Which would mean that, according to the state of the art historic exposure assessment performed by Shell, that Shell classified getting headache or getting nausea as a sign that your exposure, the person's potential exposure, was on the higher end of exposure, correct? MR. YOUNG: Object to the form. A. Within that range, it's at the higher end of the range. Q (By Ms. Clancy) It's the higher end of the exposure range, correct? A. Of -- of the criteria that we had here, yes. Q. Okay. Now, you mentioned earlier that you used eight different criteria in order to assess exposure on the exposure description worksheet, correct? A. Right. Q. When they're interviewing the person? A. They go from "A" through "G," plus a "U" for unknown. Q. Okay. A. That's eight. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:34:07 10:34:10 10:34:14 10:34:22 10:34:22 10:34:22 10:34:22 10:34:22 10:34:22 10:34:26 10:34:27 10:34:28 10:34:31 10:34:35 10:34:39 10:34:41 10:34:44 10:34:47 10:34:48 10:34:49 10:34:50 10:34:52 10:34:56 10:34:59 10:35:00 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 31 Q. And in this exposure description worksheet, the person has to talk about the job that they were on, correct? A. Right. Q. And what area they were working in, correct? A. That's correct. Q. And what years that work covered, right? A. Right. Q. Okay. And then the amount of time spent on the job task, correct? A. Correct. Q. Okay. And once you got that information, then what you would look at is, well, what were your sensory perceptions while you were in that job; is that right? A. Only for purposes of this worksheet. Q. Right. And this is the worksheet, interviewing the person to assess their own individual exposure, correct? MR. YOUNG: Object to the form of the question. A. This is a worksheet that was done. This total assessment of the exposure included this plus all of the other criteria that I've already described. Q (By Ms. Clancy) Okay. But what I'm asking you in your individual interviews, this exposure description Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:35:05 10:35:08 10:35:10 10:35:14 10:35:16 10:35:16 10:35:18 10:35:21 10:35:25 10:35:27 10:35:31 10:35:33 10:35:37 10:35:38 10:35:40 10:35:45 10:35:50 10:35:55 10:35:57 10:36:04 10:36:10 10:36:15 10:36:19 10:36:23 10:36:24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 32 worksheet, in your individual interviews with the people, what other worksheets did you use to interview them? I mean, what other -- because there aren't any other in this packet. A. I think -MR. YOUNG: Object to counsel's testimony. A. What you have is what's in the packet. I think the worksheet speaks for itself. I'm answering your questioning which you asked in terms of making the exposure assessment. And all these other things that we talked about earlier went into making the exposure assessment. This represents the sensory reactions, as you put it. Q (By Ms. Clancy) Okay. And let me back up. I understand that you testified earlier that when Shell, in performing its exposure assessment, looked at types of equipment and processes being used, that Shell could independently look at that. And my question is, in reviewing the benzene historic exposure assessment report, it appears that when one was interviewing the actual workers, that these exposure description worksheets were the criteria used to interview the individual workers as to assess their own individual recollections as to what type of exposure occurred; is that right? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:36:24 10:36:24 10:36:27 10:36:28 10:36:28 10:36:30 10:36:34 10:36:38 10:36:41 10:36:42 10:36:46 10:36:49 10:36:50 10:36:51 10:36:52 10:36:52 10:36:53 10:36:55 10:36:57 10:36:59 10:37:05 10:37:09 10:37:09 10:37:13 10:37:16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 33 MR. YOUNG: Object to the form of the question. A. Okay. That's a pretty complex question. You said independently. Shell didn't do anything independently. You know, you put it all together. It wasn't one thing. But, yes, when we interviewed employees for that portion of our data collection, that's the worksheet we used. Q. (By Ms. Clancy) And that portion of the data collection was the individual employee's own recollection of what types of exposure the individual employee had; is that right? A. That's -MR. YOUNG: Object to the form of the question. Q. (By Ms. Clancy) Is that correct? A. That's all we have to go on, yes. Q. Okay. And all you had to go on with respect to the individual employees' own recollection of their exposure was looking at their sensory perception Labeled A through U on this exposure description worksheet; is that right? A. No, because we had also asked the employees did you see spills, did you see other things. It's not on this sheet. And that would be part of the interview. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:37:19 10:37:20 10:37:21 10:37:26 10:37:29 10:37:33 10:37:36 10:37:38 10:37:41 10:37:44 10:37:45 10:37:45 10:37:52 10:37:55 10:37:58 10:38:00 10:38:03 10:38:06 10:38:08 10:38:09 10:38:12 10:38:15 10:38:19 10:38:21 10:38:26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. Well -- Page 34 A. What did you see -- you know, did your wife, you know -- did you get covered over with liquid? Well, I guess one of the criteria here liquid contact. Did something spill on you and so on. But those were all of the kinds of things we were trying to get at to form some opinion of what exposure could have been. Q. Okay. Well, that's fair. So, in addition, your testimony today is that in addition to the questions asked of the individual employee on the exposure description worksheet, including sensory perceptions such as odor, visible liquid, eye irritation, respiratory irritation, narcotic effects, and liquid contact, you also asked, well, did you see any leaks and spills? A. Yeah. Or were there any other unusual events that would have caused the exposure. Q. Such as what? A. Well, a break in a line. I guess that would include a leak or a spill. A break -- break in a line, an emission. You know, anything that would be of significance to the employee answering the questions. Q. Okay. And so that was -- and then you took that criteria. And then you combined that. You said that was one part of the analysis. Once you got that Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:38:29 10:38:32 10:38:32 10:38:35 10:38:38 10:38:41 10:38:46 10:38:50 10:38:52 10:38:55 10:38:59 10:38:59 10:39:05 10:39:09 10:39:14 10:39:18 10:39:21 10:39:23 10:39:25 10:39:28 10:39:31 10:39:35 10:39:38 10:39:41 10:39:43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 35 information from the employee, what other criteria would you combine that with? A. As I said, and I think this is now the eighth time I've said that, we took the engineering drawings, the procedures, the records that we had of turnarounds, if we had records of line openings, whatever records we had, even spills that they might not have remembered that we might have had. All those were put together. It was just not the sensory perception that let us come up with a conclusion as to what the exposure might have been. Q. So, for example, if the employee maybe didn't remember an event or didn't remember seeing anything, but you had a record of some spills and leaks arising in a turnaround, would you, then, adjust the data upward to show that there was a possibility of exposure? A. Well, let me answer that a little bit more specifically. If an employee didn't remember an event but he was on Job X and two other employees were on the same job at roughly the same time and they remembered things that he didn't, we wouldn't try to bring that all together. We were not -- you know, we were trying to see the best estimate we could make with all the available information we could find as to what exposures might have been 30, 40, 50 years ago. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:39:47 10:39:50 10:39:53 10:39:57 10:39:58 10:40:01 10:40:05 10:40:06 10:40:07 10:40:08 10:40:09 10:40:14 10:40:20 10:40:21 10:40:22 10:40:23 10:40:30 10:40:30 10:40:30 10:40:31 10:40:32 10:40:34 10:40:37 10:41:07 10:41:10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 36 Q. Okay. And what I'm understanding you have just testified is one way that you would make that best estimate is if one employee didn't necessarily remember, but two other employees, you would factor that in the anaylsis, that two other employees saw spills and leaks in the same area and we're going to factor that in even though the third employee didn't remember it; is that correct? A. Might not remember it if he was there at the same time, sure. Q. Okay. And, so, again, you were relying on coworkers, then, to help establish data points of possible exposures; is that right? MR. YOUNG: Object to the form of the question. A. We were relying on anybody who'd give us any information we could use. Q. (By Ms. Clancy) Okay. And relying on co-workers and relying on the individual employees was all part of the criteria that you used to do the state of the art historic exposure assessment, correct? A. Those were among the techniques that we used, correct. Q. Okay. Oh, I apologize. I know you've given a deposition before, but if at any time you need to take a Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:41:12 10:41:17 10:41:17 10:41:17 10:41:21 10:41:22 10:41:23 10:41:26 10:42:01 10:42:04 10:42:09 10:42:10 10:42:13 10:42:17 10:42:22 10:42:24 10:42:27 10:42:32 10:42:34 10:42:37 10:42:40 10:42:43 10:42:44 10:42:46 10:42:46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 break, please do not hesitate to tell me. Page 37 A. Oh, I'll let you know in a few minutes. Q. Okay. And then the only time that the rules would request that you not take a break is when a question's pending. If we just finish the answer and then -- A. Not a problem. Excuse me. Sorry. Okay. Q. Okay. One of the considerations that you took into account in creating your data points for the exposure assessment was olfactory fatigue, correct? A. Olfactory fatigue, yes. Q. Okay. So, explain that to me, how that works. A. Olfactory fatigue generally says that if the nose, the olfactory nerves, are overwhelmed with some odor, whether it's perfume or bacon grease cooking or something, whatever it is, eventually the nerves deaden, they tire and you will not be able to smell what you're smelling, what you had been smelling. Q. Okay. So, then how did that work in terms of taking into consideration olfactory fatigue and developing your data points for the historic exposure assessment? A. I'm not quite sure what you mean by the question. Q. Well, given that you know -- given that one of Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:42:49 10:42:54 10:42:57 10:43:01 10:43:04 10:43:08 10:43:08 10:43:11 10:43:14 10:43:19 10:43:21 10:43:21 10:43:25 10:43:29 10:43:30 10:43:37 10:43:39 10:43:45 10:43:52 10:43:56 10:43:59 10:44:03 10:44:07 10:44:11 10:44:15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 38 the criteria was, for your analysis, was sensory perception, such as you'd ask people what they smelled and what they recollected the odors were and you also knew that there could be the phenomenon of olfactory fatigue, how did you, then, take that into consideration for the -- to adjust for the olfactory fatigue? A. Well, olfactory fatigue occurs only when there are -- are a series of odors. You have to have contact with the odor no matter what it is before you can have the fatigue. Q. Right. A. And if somebody said, you know, the odors were overwhelming and I got dizzy or something like that, the fact that olfactory fatigue may have occurred, it would be immaterial because we already have a heavy kind of event. You know, I got dizzy. On the other hand, olfactory fatigue only occurs, as I understand it, after there is prolonged hours, 20, 30 minutes, four or five hours of the odor. And ultimately it depends upon what the odor was to begin with. So, there's no general way to answer your question with a simple term. It had -you know, it had to have -- we would have had to look at the individual comment before we could factor in olfactory fatigue. But if he said he smelled it for a couple of hours and while he was still there and the Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:44:17 10:44:19 10:44:20 10:44:20 10:44:30 10:44:33 10:44:40 10:44:43 10:44:46 10:44:49 10:44:53 10:44:55 10:44:56 10:44:56 10:44:57 10:45:01 10:45:03 10:45:06 10:45:10 10:45:12 10:45:15 10:45:18 10:45:21 10:45:27 10:45:27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 39 liquid was on the ground and he didn't smell it anymore, we'd say, okay, you were still getting what you were getting. Q. Okay. So, what you're saying is that -- is it even at some points where a person may not be smelling the benzene, if -- if you -- if that person had previously been exposed to the benzene and smelling it and then initially they're -- and initially they were smelling it and then they became unable to smell it, in doing the historic exposure assessment, you took that -took olfactory fatigue into account, right? MR. YOUNG: Object to the form of the question. A. Well, when you say previously, you have to understand it's immediately previously. It doesn't mean that he smelled it yesterday and can't smell it today. It had to have been immediate. So, if he was saying he smelled benzene for a two-hour period and all of a sudden it stopped and the source didn't go away, we would say, okay, it was still there. Q. (By Ms. Clancy) I see. So, let me just use an example to make sure I understand. Let's say a worker starts his day in the ARU unit. A. Okay. Q. And -- no. Let's make that the BEU unit. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:45:34 10:45:34 10:45:39 10:45:41 10:45:45 10:45:47 10:45:51 10:45:54 10:45:54 10:45:54 10:45:55 10:45:59 10:46:02 10:46:06 10:46:10 10:46:13 10:46:17 10:46:18 10:46:22 10:46:26 10:46:26 10:46:27 10:46:28 10:46:31 10:46:34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Okay. Page 40 Q. Okay. As the worker starts his day in the BEU unit and for the first couple of hours he says, you know, when I first got there, I really could smell benzene. And -- and he's working on -- let me back up. He's working on a turnaround at the BEU unit and historically you know that there can be leaks and spills at turnarounds at the BEU unit. Assume that for me, okay? A. I'll make the assumption. Q. Okay. So, then, the worker reports, well, after two hours, I didn't really smell the benzene anymore. Now, is that one of the ways that you could take into consideration olfactory fatigue and say, well, we know that he was working in the unit on a turnaround where historically there have been spills and leaks of benzene, but he smelled it for the first two hours, but given olfactory fatigue, he likely was still being exposed to it in the remaining hours of his workday but couldn't smell it because of olfactory fatigue? Is that an example? MR. YOUNG: Object to the form. A. That could be. It would depend upon what else he was doing. Did he leave the area? Did he smell it because he saw a spill on the ground and was the spill Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:46:38 10:46:42 10:46:45 10:46:45 10:46:48 10:46:52 10:46:56 10:46:59 10:47:00 10:47:00 10:47:04 10:47:07 10:47:11 10:47:17 10:47:18 10:47:18 10:47:19 10:47:22 10:47:24 10:47:27 10:47:38 10:47:38 10:47:38 10:47:38 10:47:38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 41 still there? Or we would say, well, was the spill cleaned up. If he said the spill was not cleaned up and it was still sitting there in a puddle after three hours and I couldn't smell it any more, then, we'd say, well, you probably were getting what you had been getting when you could smell it. So, it depends upon the entire complexity of the situation. I -- you know, there's -- Q. Right. A. -- no simple answer. Q. But basically olfactory fatigue means that you can still be working around benzene and not necessarily be able to smell it because you may have, as you testified earlier, your sensory ability to smell it may have been cut off; is that right? A. Well -- MR. YOUNG: Object to the form. A. -- what I also said was that you have to have a fair shot at whatever is producing the odor, whatever the odor is. Just walking into a room and -- and -- or any place, odors in general, just having an odor or not smelling, it doesn't mean you automatically have olfactory fatigue. You have to have an overload to be fatigued. Q. (By Ms. Clancy) Right. And I'm not arguing with you on that point. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:47:40 10:47:43 10:47:44 10:47:50 10:47:54 10:47:57 10:47:57 10:48:01 10:48:07 10:48:08 10:48:09 10:48:12 10:48:15 10:48:18 10:48:20 10:48:21 10:48:24 10:48:27 10:48:30 10:48:33 10:48:36 10:48:41 10:48:42 10:48:47 10:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 42 A. Okay. And, so, if he couldn't smell it and the situation were that we were estimating he was in the 1-part-per-million level and then couldn't smell it, the inference could be that there was nothing more there to smell. If he was in -- or we made an inference that he was in the 50-part-per-million level, say, and then he couldn't suddenly smell it, the inference would be, well, it was still there but olfactory fatigue had set in. I mean, I'd have to look at the entire situation to see how we factor it in. Q. Right. I understand. Well, I'm just reading from a sentence in the report that says Deer Park took olfactory fatigue into account in the aromatics unit, where there were mixed exposures by upgrading the 2-B sensory data level by one, i.e, the reported A exposure was upgraded to a B level? A. Okay. Q. Okay. That's what I'm trying to understand. A. Okay. Which meant that in that case we were not trying to minimize what he had, but trying to say, okay, well, we'll maximize what he might have had. Q. Okay. So, what you were saying, then, is the, for example, in the aromatics unit -- well, let me back up. First of all, was it your testimony that you classified individual areas by, for example, you said 1 Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:48:54 10:48:58 10:49:02 10:49:03 10:49:05 10:49:05 10:49:07 10:49:07 10:49:10 10:49:13 10:49:13 10:49:15 10:49:19 10:49:19 10:49:21 10:49:27 10:49:30 10:49:31 10:49:32 10:49:36 10:49:37 10:49:41 10:49:42 10:49:47 10:49:52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 43 part per million or, for example, a 50 part per million -- my point being, not to pin you down in exact numbers, but to say that different areas were classified for higher or lower potential levels of exposure; is that right? A. No, no, no, I didn't say that. Q. Okay. A. I was giving that as an example as to how one would look at olfactory fatigue. Q. Okay. A. What -- and I think what you read is exactly what was done there. And that explains it better than I can. Q. Okay. But what I'm trying to understand is, when they say Deer Park, which is -- are you aware that both plaintiffs in this case worked as contractors at Deer Park? A. That's my understanding, yes. Q. Okay. Deer Park took olfactory fatigue into account in the aromatics unit where there were mixed exposures by upgrading the 2-B sensory data level by one, i.e, the reported "A" exposure was upgraded to a "B" level. Can you, as one of the persons who conducted the Shell historic exposure assessment, can you explain to me what that sentence means, how that works? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:49:55 10:49:59 10:50:03 10:50:06 10:50:12 10:50:16 10:50:19 10:50:24 10:50:29 10:50:29 10:50:31 10:50:36 10:50:41 10:50:44 10:50:44 10:50:50 10:50:52 10:50:56 10:51:00 10:51:04 10:51:04 10:51:06 10:51:07 10:51:07 10:51:07 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 44 A. Okay. What that said is that if we had reason to believe that the individual was smelling something and then it couldn't and given other factors that we figured that, for whatever reason, we figured he stopped smelling because of olfactory fatigue, we wouldn't hide under, saying, hey, it's a low number because you can't smell it. We would say, fine, we'll assume that your level is higher than not smelling it. Q. Okay. A. In other words, what we didn't want to do is to be accused of or even have the impression of that we were trying to hide or minimize numbers. And, so, if we were erring in this case and we had to make a guess, we'd try to err on the high side. Q. Okay. Because there is a phenomenon where if you -- and -- well, let me back up. The reason that you did that is because there's a phenomenon whereby if you are around benzene for a long enough period, you can have olfactory fatigue and lose the ability to stop smelling it; is that correct? MR. YOUNG: Object to the form of the question. A. You could -MR. YOUNG: Misstates the testimony. A. You could. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:51:08 10:51:08 10:51:08 10:51:11 10:51:13 10:51:13 10:51:14 10:51:19 10:51:23 10:51:28 10:51:31 10:51:33 10:51:37 10:51:42 10:51:48 10:51:49 10:51:55 10:51:58 10:52:00 10:52:00 10:52:07 10:52:10 10:52:12 10:52:14 10:52:14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 45 Q. (By Ms. Clancy) I mean, why else would Deer Park have done this in their state of the art study, why else would they have taken into consideration olfactory fatigue? MR. YOUNG: Objection to form, asked and answered. A. Because olfactory fatigue was already part of the overall look that we did. Since you were talking about sensory perception, that all had to fit in to how we handled it. We're trying to -- we were trying to look -- given the state of the art at the time, we were trying to look at what is known, what could be known. In the absence of monitoring data, we tried to take a very conservative view on what exposure could have been. And that's the only way I can answer that question. Q (By Ms. Clancy) Okay. And one of the -- and Shell did the best estimate possible based on the best state of the art available to it, correct? A. That's correct. Q. Okay. And Shell decided that, using the best state of the art, we've got to take into consideration olfactory fatigue, correct? A. That's one of the things that we took into consideration, yes. Q. Okay. And Shell used the phenomenon of Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:52:17 10:52:20 10:52:22 10:52:26 10:52:28 10:52:29 10:52:30 10:52:32 10:52:36 10:52:38 10:52:39 10:52:41 10:52:42 10:52:47 10:52:51 10:52:54 10:52:57 10:52:58 10:53:02 10:53:05 10:53:08 10:53:08 10:53:09 10:53:09 10:53:12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 46 olfactory fatigue to say in certain circumstances, even when an individual can't -- isn't reporting that they're smelling the substance, we may decide to bump them up a level of exposure; is that correct? MR. YOUNG: Object to the form of the question. A. Well, that's essentially what you have read in that -- from that criteria on that sheet. Q. (By Ms. Clancy) And what I've read is from the Shell exposure assessment report? A. That's correct. Q. Okay. And the reason that you would bump a person up is because olfactory fatigue is a phenomenon by which a person initially may be able to smell the benzene, but after a certain time period and a certain duration of exposure, loses the ability to smell it; is that right? A. We would bump them up to make sure that we were not trying to hide and pull things back. We were trying to give the most honest estimate we would get. And that's why we would bump them up. MS. CLANCY: Okay. Object as nonresponsive. Q (By Ms. Clancy) My question is olfactory fatigue is the phenomenon by which a person initially Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:53:17 10:53:21 10:53:27 10:53:29 10:53:30 10:53:30 10:53:33 10:53:36 10:53:40 10:53:43 10:53:46 10:53:52 10:53:52 10:53:52 10:53:55 10:54:00 10:54:02 10:54:03 10:54:04 10:54:04 10:54:06 10:54:06 10:54:10 10:54:13 10:54:18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 47 can smell benzene for the first time period of exposure and then loses the ability to smell it after a enough duration and time of exposure; is that right? MR. YOUNG: Object to the form of the question. A. The way you have said it, and I think you've characterized what I have said, if the exposure is long enough for any odor and high enough, you tend to lose the ability to continue to smell that particular odor until you're out of the area and recover and then you can re-smell it, of course. Q (By Ms. Clancy) Okay. And the way that Shell accounted for it in its historic exposure assessment is they said there may be times when a person is not reporting a smell of benzene odor, but we're going to determine that indeed they were being exposed to benzene at that time, correct? MR. YOUNG: Object to the form of the question. A. That would be based on the other criteria. Were there spills around, were other people complaining or stating it and so on. Q. (By Ms. Clancy) Right. Exactly. So, my question was -- and perhaps it would help you if I said that even though a person was an employee of Shell, was Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:54:23 10:54:27 10:54:31 10:54:36 10:54:36 10:54:36 10:54:39 10:54:43 10:54:46 10:54:49 10:54:49 10:54:53 10:54:53 10:54:54 10:54:54 10:54:58 10:55:05 10:55:06 10:55:07 10:55:08 10:55:08 10:55:08 10:55:09 10:55:09 10:55:12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 48 not reporting an odor, Shell might, by looking at other criteria, such as, were there spills and leaks around them, what were the other folks reporting, Shell might still determine that that person was indeed still being exposed to benzene; is that correct? A. Not the way you're putting it. Just because a person doesn't report an odor, the person would have to had reported an odor and then said it stopped. That's the phenomenon of olfactory fatigue. If somebody says I was in that unit and didn't smell anything and never had smelled anything that day -- Q. Okay. A. -- that would not be an indication of olfactory fatigue. Q. Okay. So, an indication of olfactory fatigue is, for example, where an employee intermittently might smell exposure? MR. YOUNG: Object to the form. Q (By Ms. Clancy) In the morning they might smell exposure and in the afternoon, maybe not, right? MR. YOUNG: Object to the form of the question. Q. (By Ms. Clancy) Because you said they initially have to show exposure; is that correct? A. No. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:55:12 10:55:12 10:55:14 10:55:18 10:55:19 10:55:20 10:55:20 10:55:28 10:55:30 10:55:32 10:55:40 10:55:43 10:55:48 10:55:52 10:55:57 10:56:00 10:56:00 10:56:02 10:56:06 10:56:13 10:56:18 10:56:21 10:56:24 10:56:27 10:56:30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. Page 49 A. No. The way you put it, no. If they were in the morning, they went off to lunch, they were out at the area, whatever it is, and then came back and didn't smell it, that would not be olfactory fatigue. There would have been time for recovery. Olfactory fatigue is a continuous phenomenon. You're in a high odor environment. Let me give you a different example, that may do that. You walk into a bathroom on an airplane. And you may not like what you're smelling. And after a while, you don't smell it any more. You walk out, and an hour later into the flight, you walk back in, the odor is back there again. Olfactory fatigue is a continuing phenomenon. If you've taken a break, the nerve endings have a chance to recover and you're back in business again, so to speak. Q. Okay. So, olfactory fatigue, then, therefore, is the phenomenon by which you have reported exposure based on odor for the first few hours, the person stays in the same situation and then suddenly stops reporting the odor. You would take into consider olfactory fatigue in that situation, by saying, look, they've never taken a break, they're in the same situation, based on all the other criteria, the folks working Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 10:56:32 10:56:33 10:56:36 10:56:37 10:56:39 10:56:42 10:56:43 10:56:46 10:56:49 10:56:50 10:56:50 10:56:50 10:56:50 10:56:50 10:56:50 10:56:50 10:56:59 10:57:01 10:57:04 10:57:11 11:04:58 11:04:59 11:05:04 11:05:05 11:05:08 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 50 around them, the spills and leaks that we know are occurring there, we're going to say that even though they've lost the ability to smell it in this situation because of olfactory fatigue, we're going to say that they were still being exposed even though they can't smell; is that correct? A. We would give them the same exposure -- we would bump them, as you've used the term, yes. Q. Okay. A. You could put that down, sure. Q. Okay. MR. YOUNG: Howard, you want to take a quick break? THE WITNESS: Yeah, why don't we do that? Are we between questions? MS. CLANCY: We're between. Thank you. THE VIDEOGRAPHER: Now going off the record. The time is approximately 10:56. We're now ending tape one. (Recess taken) THE VIDEOGRAPHER: We're now back on the record. The time's approximately 11:04. We are starting tape two. Q. (By Ms. Clancy) Okay. Now, the benzene historic exposure assessment, what the ultimate data Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:05:13 11:05:18 11:05:22 11:05:26 11:05:31 11:05:34 11:05:36 11:05:38 11:05:43 11:05:45 11:05:48 11:05:49 11:05:52 11:05:58 11:06:01 11:06:04 11:06:08 11:06:15 11:06:19 11:06:20 11:06:24 11:06:26 11:06:30 11:06:34 11:06:36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 51 produced in order to help you determine -- well let me back up. Let's put this in context. The benzene historic exposure assessment was -- was prompted by the initial epidemiological results showing increase incidence of leukemia at Shell Wood River and Deer Park; is that correct? A. I'm not sure. I don't recall whether that was it or whether -- as in any epidemiologic study, you need exposure data, environmental data. And whether that was planned first, I just honestly don't recall the sequence. Q. Are you saying that the -- are you saying that the epidemiological study was done in -- hand and hand with the historic exposure assessment? A. Well, eventually they were hand in hand. I'm saying I don't recall whether we had -- we started the epidemiology study and at the same time said we should prepare for an environmental study. But no epidemiology study is valid without environmental data. Q. Okay. A. I just don't recall the sequence. Q. Okay. But you're not saying that the epidemilogy study was done after the Shell historic exposure assessment, are you? A. Well, the medical part was done -- started Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:06:39 11:06:42 11:06:43 11:06:46 11:06:48 11:06:48 11:06:51 11:06:53 11:06:53 11:06:55 11:07:00 11:07:05 11:07:07 11:07:08 11:07:12 11:07:15 11:07:17 11:07:19 11:07:20 11:07:23 11:07:26 11:07:32 11:07:36 11:07:37 11:07:37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 52 before and continued through. So, we're all part of a whole. Q. Okay. And the medical part being the classification of diseases, correct? A. Yes. Q. Okay. And from which facility the diseases were arising from; is that right? A. I believe so, yes. Q. Okay. And then the Shell historic exposure assessment worked to analyze whether or not folks who had, for example, leukemia, were actually exposed to benzene; is that right? MR. YOUNG: Object to the form. A. As I said, any epidemiologic study needs the environmental data. And, so, that's the only way we could provide it, was to make some estimates of what those exposures were. Q. (By Ms. Clancy) Right. And what -- I'm just trying to speak on a very basic level, which is that you were trying to say, okay, we know these folks have leukemia, we know they worked at, for example, Wood River or Shell and now we're going to see what their actual exposure to benzene may have been; is that right? MR. YOUNG: Object to the form. A. Well, no. We also looked at people who didn't Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:07:39 11:07:42 11:07:46 11:07:48 11:09:44 11:10:00 11:10:10 11:10:14 11:10:19 11:10:22 11:10:27 11:10:32 11:10:37 11:10:39 11:10:45 11:10:54 11:10:59 11:11:03 11:11:04 11:11:10 11:11:23 11:11:24 11:11:24 11:11:26 11:11:26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 53 have leukemia. I mean -- and so on. So, the patients with leukemia or the employees with leukemia were included, but we looked at a number of other people. Q. (By Ms. Clancy) Okay. I'm going to show you what has been marked as Minnehan Shell 9577. And it is entitled from D.S. McGraw at Shell Oil Company, dated June 1st, 1982. Subject, Deer Park epidemiology study. And it says the attached is a packet of information for your review in preparation for the June 7th meeting about the Deer Park epidemiology study. And you are one of the persons, H.L. Kusnetz, on the "To" line. Let me show you that. Let me mark my page before I -- A. Okay. Q. Okay. And one of the information in the packet is a slide show, a transparency about how the advantages or disadvantage of conducting epidemiology study changed with different outcomes of the study. I'll show you the sentence. You see that sentence where it says the advantages or disadvantages of the study changed based on the different outcomes of the study. A. Let me read the whole paragraph. Q. Okay. A. I don't know what that means, but that's what it says. Q. Okay. And, further, with respect to the Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:11:28 11:11:33 11:11:34 11:11:38 11:11:39 11:11:43 11:11:49 11:11:51 11:11:54 11:11:57 11:11:57 11:11:58 11:12:03 11:12:06 11:12:07 11:12:12 11:12:14 11:12:15 11:12:15 11:12:18 11:12:22 11:12:22 11:12:26 11:12:27 11:12:28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 54 epidemiological study, it says that, in general, the study will affect three areas: Health information, employee relations and litigation. A. I think that's what it said, yes. Q. Okay. So, litigation was one of the areas that this memo was talking about is one consideration and what the study would affect, correct? A. Well, apparently Ms. McGraw thought -- that's what she put in, that's what it was. I don't know whether she just wrote the memo or who wrote the attachments. So, I don't know who wrote the attachment. Q. Well, do you have any reason -- was Miss -- do you have any negative opinions about Ms. McGraw? MR. YOUNG: Object to the form. A. Ms. McGraw was on the medical staff, I believe. I don't know whether she made that attachment up or just got it from somebody. I just don't recall. Q. (By Ms. Clancy) Okay. But you're not disputing that the attachment attached to Ms. McGraw's memorandum says, in general, this study effects areas: Health information, employee relations and litigation. A. Well, it looks like a 20 or 30 page attachment; and that's one paragraph in it, yes. MS. CLANCY: Okay. Object to nonresponsive portion of it. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:12:28 11:12:30 11:12:32 11:12:35 11:12:35 11:12:35 11:12:37 11:12:42 11:12:49 11:12:55 11:12:59 11:13:04 11:13:05 11:13:10 11:13:10 11:13:14 11:13:18 11:13:21 11:13:25 11:13:25 11:13:26 11:13:27 11:13:29 11:13:32 11:13:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. That's what it says. Okay. Page 55 Q. (By Ms. Clancy) But that sentence says that it would affect those three areas, correct? A. Yes. Q. Okay. A. That's what it says. Q. All right. And then it goes on to show a transparency where it says, well, if there is no excess of increased leukemia, then the advantages of that are -- the past exposure levels have no demonstrable effect on mortality and current practices are probably adequate to protect the health and -- the health of current and future of employees. Do you see where it says no excess advantages? A. It is no excess, yeah. Q. Right. If the epidemiological study doesn't show any excess of a certain disease arising from a certain area, then that can show -- be used as evidence that we've been conducting safe work practices, correct? A. That's -- MR. YOUNG: Object to the form. A. That's correct. That's how I would read that. Q. (By Ms. Clancy) Yeah. Okay. Now, it does go on to say that if there's an excess of increased leukemias, there could be advantages and disadvantages. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:13:57 11:14:00 11:14:02 11:14:04 11:14:05 11:14:07 11:14:11 11:14:15 11:14:20 11:14:21 11:14:22 11:14:26 11:14:29 11:14:29 11:14:29 11:14:29 11:14:30 11:14:34 11:14:37 11:14:38 11:14:38 11:14:40 11:14:40 11:14:40 11:14:40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Do you see where it says that? Page 56 A. Yes. I have to see the previous page. Advantages. If there is an excess. Q. Yes. A. Okay. The study may provide useful information. It says if the advantages that -- proactive stance would get us more in control of the issue. And by -- if we identify it early, we can reduce the number of cases. Q. Right. A. Of all positive advantages. If there is an excess, then we know where to look to try to correct the excess. Q. Exactly. A. That's what that means. Q. Right. And, similarly, it also said, well, there are going to be some disadvantages if we just foresee that there's an excess of leukemia arising from -- A. Right. Q. -- the Wood River and Shell facilities. A. Yes. Q. Okay. A. There are two that are listed there. Q. Okay. And what are the two disadvantages Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:14:42 11:14:42 11:14:45 11:14:49 11:14:49 11:14:52 11:14:53 11:14:53 11:14:56 11:15:01 11:15:01 11:15:02 11:15:04 11:15:07 11:15:11 11:15:15 11:15:15 11:15:18 11:15:20 11:15:24 11:15:26 11:15:27 11:15:27 11:15:28 11:15:32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 57 listed? A. Well, it says in the short term, there's an adverse employee relations impact. Q. And what does that mean? A. It says people aren't going to be happy when they find out there's a lot of leukemia. Q. Okay. A. And then it says in the short term this study may stimulate the filing of worker's comp claims and even litigation. Q. Okay. A. I'd like to know -- I was curious who -- what the title is, who wrote the attachment, if I may. Q. You can take as much time. A. Okay. I'm just trying to see who wrote the attachment for that particular one or the presentation. I don't know who gave the presentation. Okay. Q. You don't recall who gave this presentation? A. I don't -- no. I got that -- I don't even know -- recall if I sat there or not now. Q. You just know that your name is listed as one of the recipients? A. That's all I can remember now. Q. Okay. And then it goes on to say, well, hey, let's do some preplanning for consequences. You see Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:15:35 11:15:37 11:15:39 11:15:52 11:15:57 11:15:59 11:16:00 11:16:02 11:16:04 11:16:06 11:16:08 11:16:08 11:16:08 11:16:08 11:16:10 11:16:15 11:16:16 11:16:21 11:16:21 11:16:22 11:16:24 11:16:27 11:16:31 11:16:34 11:16:35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 where it says preplanning for consequences? Page 58 A. That's the title of section seven, right. Q. Okay. And it says, well, look, if there's negative results, we won't take any action, correct? Do you see where it says negative, no action? A. That's correct. Q. And, in fact, the only thing we'll do is we'll disseminate information. We'll let everyone -- hey, there's no problem with excess leukemias. Do you see where that says that? A. That's right. Q. Disseminate information? Okay. A. That's right. Q. Okay. And, then, do you see in the preplanning stage for the epidemiological study, what happens if there are positive results? They also have a preplan for the positive results. Do you see that? A. Yes, I do. Q. Okay. And do you see that where one of the preplans where they say, well, what happens if the excess is statistically significant and believe occupational, the action would be to do a case-control study. Do you see where that is -- says that? A. That's one of the things they say. Q. Yes. And also they say develop a public Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:16:39 11:16:42 11:16:43 11:16:46 11:16:49 11:16:52 11:16:57 11:17:02 11:17:04 11:17:07 11:17:11 11:17:15 11:17:18 11:17:18 11:17:21 11:17:27 11:17:29 11:17:32 11:17:43 11:17:43 11:17:43 11:17:47 11:17:49 11:17:49 11:17:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 59 relations strategy and an employee relations legal position. A. Well, but it also says included in that same rubric, it says not only do we do a case-control study, we do a toxicology study, we do a risk assessment and risk exposure study. So, all of those are included. So, the risk exposure and case control and tox all go together if there's a positive access. Q. Okay. And that's indeed what happened, isn't it, is that the Cole reported excess of leukemia at -from the Shell facilities. And then Shell took the positive action of conducting a case-controlled study; is that correct? A. Well, I think Cole, in his first -- yeah, in his first draft thought there was an increase, right, and excess. Q. Okay. And then where the Shell historic exposure assessment study or the case-control study was done to then verify the data showing what types of exposure underlay the data being produced -- A. Well, all -- Cole did a study on morbidity -or mortality, I believe. Q. Right. A. And given his initial findings -Q. Right. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:17:51 11:17:54 11:17:55 11:17:57 11:17:59 11:17:59 11:18:00 11:18:03 11:18:05 11:18:06 11:18:06 11:18:10 11:18:12 11:18:15 11:18:20 11:18:22 11:18:23 11:18:26 11:18:27 11:18:27 11:18:31 11:18:33 11:18:35 11:18:36 11:18:39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 60 A. -- his initial findings, then all of the other things that are listed here were done. Q. Right. That what Shell had preplanned for at that point kicked in, correct? A. That's right. Q. Okay. And one of the things that they preplanned for, if there was positive results of the study, is that Shell would conduct a case-controlled study; is that right? A. Right. Q. Okay. And the -- which was the Shell historic exposure assessment; is that correct? A. Well, Shell historic exposure assessment is parallel to and an adjunct to the case controlled study. Q. It encompassed the case-controlled study; is that correct? A. No. It would probably be the other way around. The case controlled study probably would have encompassed the risk assessment study, the exposure study. Case control means you're looking at the individuals and you're looking at their health and illness. And the exposure goes along with that. They're parallel. Q. I see. Okay. I think I've got it. So, in order to conduct the case-control study -- Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:18:42 11:18:44 11:18:47 11:18:53 11:18:55 11:18:59 11:19:01 11:19:01 11:19:03 11:19:06 11:19:09 11:19:12 11:19:16 11:19:20 11:19:20 11:19:20 11:19:21 11:19:23 11:19:26 11:19:28 11:19:30 11:19:31 11:19:33 11:19:34 11:19:36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No, no. In order to conduct a full Page 61 epidemiologic study, there was a case-control study. There is an exposure study and parallel. Q. Okay. But this says first we conduct the epidemiologic study. And then if the results are positive, then we do the case-controlled study; is that right? A. No. That says -- no. We've looked at the morbidity and mortality analysis. And if that is high and that is positive, then we do all these other things. Q. Okay. And you're calling it a morbidity and mortality analysis. And the person who wrote the memo, S.K. Phillips, called it the proposed Deer Park epidemiology study. Do you see where that's written right there -- A. No. Q. -- epidemilogy study? A. S.K. Phillips is an attorney. I can't be responsible for the words attorneys use. I'm sorry. Q. But a Shell employee called it the Deer Park epidemiology study? A. A Shell lawyer called it a Deer Park epidemilogy study. Q. Do you say that the Shell lawyers are less informed than the other Shell employees? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:19:40 11:19:40 11:19:40 11:19:41 11:19:41 11:19:41 11:19:42 11:19:44 11:19:44 11:19:45 11:19:45 11:19:46 11:19:47 11:19:51 11:19:52 11:19:57 11:20:01 11:20:04 11:20:06 11:20:08 11:20:09 11:20:11 11:20:14 11:20:14 11:20:19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No, I -- Page 62 MR. YOUNG: Object to the form of the question. A. I'm not even going to get into the idea of what attorneys -- Q. (By Ms. Clancy) I'm just wondering why you qualified it as a Shell lawyer? MR. YOUNG: Object to the form of the question. A. No, it was written by -- MR. YOUNG: Object to the form of the question. A. I'm being partly facetious. This was written by an attorney. He called them epidemiology study. Epidemiology has a whole -- as I said earlier already, epidemilogy study includes morbidity, case-control exposure. It's a whole panoply of items in the case control study. Q. (By Ms. Clancy) Okay. So, he's one Shell employee on -- on this document, labeled Minnehan Shell, 9582, is calling it the proposed Deer Park epidemiology study. You're calling it the proposed morbidity study. A. No, that's not what I said. Q. But whatever it is -- A. Whatever it is, it -- Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:20:20 11:20:24 11:20:26 11:20:26 11:20:27 11:20:28 11:20:30 11:20:31 11:20:34 11:20:38 11:20:43 11:20:47 11:20:49 11:20:51 11:20:52 11:20:55 11:20:55 11:20:57 11:21:02 11:21:04 11:21:05 11:21:07 11:21:11 11:21:13 11:21:15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 63 Q. It was conducted. There were positive results. And as a result of those positive results, the case control study was performed; is that right? A. No, that's not what -MR. YOUNG: Object to the form of the question. A. That's not what I said. An epidemilogy study includes morbidity, mortality, case-control exposure and so on. You do part one first to determine what is the rest. And from what you've shown me here and what I seem to recall from reading this, is that if part one comes out positive, then you do parts two, three, four, X, however many there are. Q. (By Ms. Clancy) Okay. And part one, which you're calling the morbidity study, came out positive? A. That's right. Q. And by positive, there was an -- there was an observation of increased excess of leukemias? A. The initial draft said there seemed to be -and you're right. Q. Okay. And then according to this document, phase two kicked in, which was, okay, we're going to do a case-controlled study, correct? A. Now, this document isn't -- this is a suggestion and this document kicked in and said now Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:21:19 11:21:21 11:21:23 11:21:27 11:21:28 11:21:28 11:21:28 11:21:32 11:21:35 11:21:35 11:21:40 11:21:43 11:21:45 11:21:45 11:21:46 11:21:47 11:21:48 11:21:49 11:21:50 11:21:51 11:21:51 11:21:57 11:21:57 11:21:57 11:21:59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 64 we're going to do all of the things that are listed here. It didn't say -- excuse me. It didn't say just the case controlled study, it said whatever is listed including -- Q. All right. A. -- the exposure assessment. Q. And in fairness it said, well, once the positive results kick in -- and positive meaning excess of leukemia, we'll do a case-controlled study, if feasible, a toxicology study, risk assessment, risk response, pren, certain of the exposure, and clarification studies. A. Right. Q. Okay. A. Right. Q. Did I read that correctly? A. That's correct. Q. Okay. A. Well, I'm not sure if clarification studies refer to this or that's the heading for the next section. Q. Okay. A. Okay. Q. But at a minimum -- at a minimum, if it were positive, you would -- Shell decided to do case Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:22:02 11:22:02 11:22:06 11:22:07 11:22:09 11:22:12 11:22:14 11:22:19 11:22:22 11:22:22 11:22:44 11:22:48 11:22:52 11:22:59 11:23:01 11:23:17 11:23:20 11:23:23 11:23:27 11:23:32 11:23:35 11:23:36 11:23:40 11:23:45 11:23:48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 65 controlled studies if feasible. Toxicology studies and risk assessment slash risk response, correct? A. That's correct. Q. Okay. And encompassed within that was the Shell historic exposure assessment study, correct? A. It says here of exposure, right. Q. Okay. Encompassed in the response to the initial study being positive, correct? A. That's correct. Q. Okay. The Shell historic exposure assessment did not take into consideration any dose that could be received by means of dermal contact, correct? A. No, that's not correct. If you look here, for example, Item G on the sheet you gave me, which is Exhibit 5, Item G says liquid contact. Q. Okay. I realize that it says -- Item G says liquid contact as to whether or not the person may have been around benzene, but I'm asking specifically as to whether or not dermal contact with benzene was considered in terms of making a dose estimate? A. May I see that? Q. Yes. And I'm going to show you page 11 from the Shell Oil Company's historic exposure assessment. And let me, before I show it to you, let me -- I'm going to point you to the paragraph that I'm looking at. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:23:51 11:23:52 11:23:55 11:23:55 11:24:01 11:24:02 11:24:05 11:24:06 11:24:08 11:24:10 11:24:11 11:24:14 11:24:45 11:24:45 11:24:46 11:24:46 11:24:50 11:24:50 11:24:53 11:24:53 11:24:53 11:24:53 11:25:08 11:25:09 11:25:15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 66 You're welcome to read the whole page. But specifically I'm referring to where it says dose estimates were not made for benzene absorbed through the skin when direct contact may have occurred. This is based on part on the fact that protective clothing reduced such exposures, coupled with the absence of a valid method for making such estimates. MR. YOUNG: Denyse, what's the Bates number of that page? MS. CLANCY: Well, it's from one of the documents you gave us that weren't bates labeled, but it's page 11 of the historic exposure assessment. A. Okay. Q. (By Ms. Clancy) Okay. Do you see where I read that? A. I see the paragraph you read, yes. Q. Okay. THE WITNESS: You want to see it? MR. YOUNG: Sure. Go ahead. THE WITNESS: Go ahead. MS. CLANCY: I'll wait because I have another question. Q. (By Ms. Clancy) Okay. So, dose estimates in the historic benzene exposure assessment study were not made based on any benzene absorbed through the skin, Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:25:17 11:25:19 11:25:20 11:25:20 11:25:23 11:25:23 11:25:23 11:25:26 11:25:30 11:25:30 11:25:34 11:25:36 11:25:36 11:25:37 11:25:38 11:25:40 11:25:43 11:25:45 11:25:47 11:25:52 11:25:54 11:25:55 11:25:56 11:25:59 11:26:06 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? Page 67 MR. YOUNG: Object to the form of the question. A. Apparently that seems to be so. Q (By Ms. Clancy) okay. And, I mean, if you believe what the words say here in this study, dose estimates were not made for benzene absorbed through the skin when direct contact may have occurred, that would then say that the study did not make dose estimates for any benzene absorbed through the skin, correct? A. Apparently that's what it says. Q. Okay. A. Well, you just have to take it at what it says. Q. Okay. Well, you were one of the participants in the historic exposure assessment. Do you disagree now with the written language of the -- A. If that's what it says, that's what it says. Q. Okay. But you don't dispute, do you, that benzene is toxic by all roots of exposure, including derma contact, correct? MR. YOUNG: Object to the form of the question. A. I don't know that benzene has ever been shown to cause AML, leukemia that you were talking about solely by route of dermal contact. I can't think of Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:26:11 11:26:14 11:26:20 11:26:23 11:26:28 11:26:41 11:26:44 11:26:45 11:26:47 11:26:49 11:26:52 11:26:55 11:26:59 11:27:03 11:27:05 11:27:05 11:27:07 11:27:10 11:27:16 11:27:20 11:27:23 11:27:28 11:27:32 11:27:35 11:27:36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 68 anything in the literature that I can think of that shows that. There are effects in effect in -- in your exhibit number, whatever it is, 2 over here or 4, 3 -no. Where is it? Shell does say what the results are by skin contact. But -- yeah, it says prolonged or repeated liquid. Yeah. Okay. Q. Okay. Let me -- thank you for referring that to me. That is Exhibit 4, which is the Shell Material Data Sheet? A. That's correct. Q. Okay. And this says that prolonged or repeated liquid contact with benzene can result in defatting and drying of the skin, which may result in skin irritation or dermatitis. Do you see where it says that? A. That's correct. Q. Okay. Well, my question is actually different as to whether or not benzene causes -- benzene exposure causes defatting or drying of the skin. My question is specifically whether or not benzene can be toxic by the root of exposure through skin absorption. A. Well, toxic is a general term. And just as this says, toxic means it can have an adverse effect on the body. And by skin absorption, that can be an adverse effect on the body. Whether that adverse effect is the same as inhalation, I can't tell you. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:27:40 11:27:42 11:27:45 11:27:49 11:27:50 11:27:55 11:27:56 11:27:59 11:28:05 11:28:10 11:28:14 11:28:19 11:28:21 11:28:26 11:28:30 11:28:35 11:28:37 11:28:39 11:28:42 11:28:48 11:28:51 11:28:51 11:28:54 11:28:56 11:28:59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. Page 69 A. On the other hand, if there is enough on the skin that way, the inhalation is going to be there whether you have the odor or you can smell it or not. You get enough, you know, on the skin, you ought to be able to smell it, too. Q. Okay. Well, I want to show you a memorandum, which you were the recipient of in January 23rd, 1979 from Dr. Joyner, Corporate Medical -- oh, excuse me. You were one of the authors of this. It's a memorandum that you were one of the authors of in January 23, 1979. And you write, as you know, comma, this chemical, benzene, is known to be, quote, unquote, toxic by all roots of exposure, pren, inhalation, ingestion, skin absorption, providing the level of exposure is significantly high. You then go on to say that benzene may cause serious injury to blood-forming organs. What is most important, however, is that benzene is suspected of being carcinogenic in humans if the exposure is high enough and lasts lung enough. I'll show you the memorandum. A. That's -- yeah, I remember this because this has been given to me in other cases. But that's correct. Now, what's the question? Q. My question is, do you dispute that you wrote Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:29:02 11:29:05 11:29:10 11:29:13 11:29:17 11:29:21 11:29:25 11:29:27 11:29:30 11:29:36 11:29:39 11:29:42 11:29:45 11:29:51 11:29:53 11:29:56 11:29:56 11:29:56 11:29:56 11:29:58 11:30:03 11:30:04 11:30:07 11:30:12 11:30:16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 70 in 1979 that benzene is known to be toxic by all means of exposure, including dermal absorption? A. Sure. But I also wrote -- put the word toxic in quotation marks. And the actions that I read to you on the material safety data sheet are toxic. I didn't define toxic and neither did Dr. Joyner or I define toxic. Providing the level is high. So, there are a lot of qualifications. But given the right set of circumstances and recognizing that the word toxic means an adverse effect on the human body, then benzene is known to be toxic by all routes of exposure. Q. Okay. Does your memo anywhere -- your memorandum that you wrote in 1979 talks about how most important is that benzene is suspected of being carcinogenic in humans. A. That's -Q. Do you see where you wrote that? A. Yes, that's correct. Q. Okay. Where did you write in this memo that, oh, by toxic I could just mean it may be defatting or skin irritation? A. No, this memo wasn't meant to do that. This was a memo that was meant to alert, in this particular case, the vice-president. And I don't see who else got copies. To alert the Shell officials why we are doing Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:30:19 11:30:24 11:30:29 11:30:35 11:30:40 11:30:40 11:30:43 11:30:47 11:30:48 11:30:48 11:30:48 11:30:49 11:30:51 11:30:54 11:30:55 11:30:56 11:30:56 11:30:59 11:31:02 11:31:05 11:31:06 11:31:06 11:31:09 11:31:10 11:31:12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 71 this. This is just a very quick summary. This is not a lecture, and it's not a manual on the toxicity of benzene. It is toxic by all routes. The most serious effect that we can think of is -- is carcinogenicity. And that's why we're going ahead with this study. Q. Okay. But nowhere in that memo did you write, well, it's more toxic by one route than another, did you? A. It wasn't necessary, and it wouldn't apply to this memo. MS. CLANCY: Object as nonresponsive. Q. (By Ms. Clancy) No where in that memo did you write it is more toxic by one route than another, did you? MR. YOUNG: Object to the form of the question. Q. (By Ms. Clancy) Did you write that in there? A. No. I think one could infer it from here; but, no, we didn't write that -- those specific words. That's correct. Q. Okay. Where can one infer from that memorandum that it is more toxic by one root of exposure than another? A. Because when we're talking about what level of exposure is toxic and when we talk in parts per million, Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:31:15 11:31:17 11:31:20 11:31:23 11:31:25 11:31:32 11:31:32 11:31:33 11:31:37 11:31:38 11:31:39 11:31:41 11:31:41 11:31:42 11:31:42 11:31:49 11:31:54 11:31:58 11:31:59 11:32:01 11:32:01 11:32:03 11:32:04 11:32:07 11:32:10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 72 the implication and the inference that anyone would take reading this is that it was by inhalation. Q. Okay. You can't have parts per million by volume? A. On benzene on the skin, one never talks about that in industrial hygiene. And that never would enter into it. Parts per million by volume means you've got a mixture of solvents or something like that on the skin. Q. Right. A. Nothing is known about that as far as -- and then -- even then wasn't known. Q. Nothing -A. When you talk about PPM, you're talking about averaged over an eight-hour day parts per million by volume of liquid doesn't fit. The rest of the paragraph talks about inhalation. Any one familiar with industrial hygiene, familiar with exposure, would take that as inhalation. And that's all -Q. What was Mr. Deisler's position? A. Deisler -- MR. YOUNG: Object to the form the question. Calls for speculation. A. Deisler was a vice-president at the time. And he -- all of the four signatures on that letter reported to him. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:32:11 11:32:12 11:32:13 11:32:15 11:32:16 11:32:20 11:32:20 11:32:23 11:32:28 11:32:31 11:32:33 11:32:37 11:32:40 11:32:40 11:32:43 11:32:44 11:32:45 11:32:49 11:32:52 11:32:54 11:32:57 11:32:59 11:33:00 11:33:03 11:33:07 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 73 Q (By Ms. Clancy) Okay. And what department did he work in? A. He was the vice-president for Health, Safety and Environment. Q. Okay. And was he an industrial hygienist? A. No. Q. So, you wrote to a nonindustrial hygienist and you asked him to infer, even though you wrote benzene is known to be toxic by all roots of exposure, inhalation, ingestion and skin absorption, your testimony today is you're asking this nonindustrial hygienist to infer that, oh, really, it's really just inhalation? MR. YOUNG: Object to the form. Q. (By Ms. Clancy) Is that your testimony? A. No, it is not. Q. Okay. A. Dr. Deisler is -- was a very well educated and PhD who had been a vice-president of Health, Safety and environment for several years at the time this was written. I think he would make that inference, yes. Q. Okay. Well -A. I think any technically well-trained technical -- technically-trained person would make the same inference by those words, that we were really concerned about inhalation primarily. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:33:10 11:33:12 11:33:14 11:33:15 11:33:15 11:33:15 11:33:18 11:33:21 11:33:21 11:33:22 11:33:24 11:33:26 11:33:26 11:33:26 11:33:26 11:33:30 11:33:32 11:33:34 11:33:37 11:33:41 11:33:45 11:33:46 11:33:47 11:33:48 11:33:49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 74 Q. Okay. Even though you never wrote we are really concerned about inhalation primarily. A. We -- I -- we didn't have to write, right. Q. But -- MS. CLANCY: Object as nonresponsive. Q. (By Ms. Clancy) You never wrote we were really concerned about inhalation primarily, did you? A. I think -Q. Did you write those words? A. Those words were not in that memo. Q. Okay. In fact, what you did wrote is that the chemical is -A. What I did write? Q. -- known to be toxic by all roots of exposure, pren, inhalation, ingestion and skin absorption, correct, that is what you wrote? A. That's part of the memo, that's correct. Q. Okay. And, yet, you didn't take into consideration in calculating dose any skin absorption in performing the Shell exposure assessment, correct? MR. YOUNG: Object to the form of the question. Asked and answered. A. You're talking apples -- you're talking apples and oranges. Q (By Ms. Clancy) I'm talking what this says. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:33:50 11:33:54 11:33:55 11:33:56 11:33:59 11:34:01 11:34:04 11:34:06 11:34:07 11:34:10 11:34:13 11:34:16 11:34:18 11:34:18 11:34:19 11:34:20 11:34:20 11:34:24 11:34:30 11:34:35 11:34:35 11:34:35 11:34:38 11:34:41 11:34:48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 75 Dose estimates were not made for benzene absorbed through the skin when direct contact may have occurred. A. Right. Q. Does the exposure assessment say that? A. That says that, but the exposure assessment was to try to find out what was the body burden that could have caused cancer. Q. Right. A. Could have caused leukemia. And what that says is that we did not know and, therefore, we did not include and there was nothing known and there was no evidence that skin absorption was part of that mechanism. It was inhalation that we were concerned about. Q. Okay. A. And that's all it says. Q. And if there were to be evidence that one could get benzene absorption through the skin, would you then say that that should be included as part of total body burden? A. Well, you're mischaracterizing what I just answered. I say there's no evidence, and I don't even think there's evidence today, that exposure through the skin is a proximate cause of cancer in -- exposure through the skin of benzene is a proximate cause of Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:34:50 11:34:55 11:34:56 11:35:01 11:35:05 11:35:08 11:35:09 11:35:10 11:35:10 11:35:13 11:35:16 11:35:20 11:35:24 11:35:28 11:35:28 11:35:28 11:35:29 11:35:31 11:35:36 11:35:40 11:35:41 11:35:42 11:35:44 11:35:46 11:35:49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cancer. And the same thing would hold. Page 76 Q. Okay. That wasn't my question. My question is, assume for me that one of the ways by which a person can ingest benzene into the body and add to the total body burden of benzene is by through the skin. Can you assume that for me? A. No, I can't. Q. Why not? A. Because the assumption has to say what's going to happen when it's in the body. And I can't just say adds to the body burden. The effect of benzene inhaled may be different from the effect on the body of -- from the effect on the body of dermal absorption. Q. Okay. A. So, I can't make that assumption as you're putting it. Q. Fair enough. Can you assume for me that assumption of benzene through the skin could be carcinogenic? Can you make that assumption for me? A. I will not make that assumption. No, I can't. I don't think there's any evidence for that assumption. Q. Okay. I'm not asking you if there's evidence. I'm just asking you to assume that for me? A. I will not assume that because it's totally incorrect, and I can't make that assumption. If you ask Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:35:52 11:35:54 11:35:57 11:35:58 11:35:59 11:36:03 11:36:05 11:36:06 11:36:08 11:36:09 11:36:13 11:36:17 11:36:22 11:36:23 11:36:28 11:36:30 11:36:32 11:36:32 11:36:34 11:36:36 11:36:40 11:36:46 11:36:47 11:36:48 11:36:49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 77 me a question to make an assumption that the earth is flat and you're going to ask me a question on that, I cannot make the assumption and will not make the assumption that the earth is flat. Q. Okay. I just want to clarify. Your testimony as the former -- what was your title? A. I was manager of safety and industrial hygiene. Q. Okay. And how many years were you manager of safety -A. That particular title was since 1977 to 1991. Q. Okay. Your testimony is as the former manager of industrial health and safety -- is that right? A. Safety industrial hygiene. Q. Safety industrial hygiene for Shell. And how many employees were you responsible for? A. Well, my department was responsible for the whole company. Q. For the whole company. Okay. Responsible for the whole company, your testimony, as you sit here today, is that there is no evidence that exposure by -of benzene through the skin can be carcinogenic? Is that your testimony? MR. YOUNG: Object to the form. Misstates his testimony. A. I'm saying now, regardless of what my position Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:36:51 11:36:55 11:36:59 11:37:04 11:37:04 11:37:07 11:37:11 11:37:11 11:37:14 11:37:18 11:37:21 11:37:32 11:37:32 11:37:32 11:37:34 11:37:37 11:37:41 11:37:45 11:37:48 11:37:52 11:37:56 11:37:56 11:37:59 11:38:03 11:38:03 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 78 was with the company, as I sit here today, I know of no evidence of literature that says that benzene absorbed through the skin is carcinogenic, that it could cause leukemia. Q. Okay. And was that one of the reasons that you didn't use benzene absorbed through the skin in your historic exposure assessment data? A. I don't know -- I don't know what -- whoever wrote that paragraph and even if -- I probably reviewed the paragraph, if I didn't write it -- I don't know what the purpose was. But, basically, we were concerned with inhalation, even though there were other effects; and we dealt with the other effects. We were looking at carcinogenicity. We were looking at mortality or -we're looking at morbidity and mortality from -- of leukemia. And that was one we did not know how to characterize. There was nothing in the literature that led us -- would give us -- let us have a dose. And, so, we just decided we would note it but not include it in the calculation. Q. Okay. And, so, what you did include in the calculation in terms of total dose was just inhalation; is that right? A. Inhalation, yes, essentially, right. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:38:05 11:38:09 11:38:11 11:38:14 11:38:18 11:38:19 11:38:20 11:38:25 11:38:25 11:38:27 11:38:26 11:38:28 11:38:28 11:38:28 11:38:30 11:38:31 11:38:33 11:38:38 11:38:41 11:38:42 11:38:46 11:38:48 11:38:50 11:38:55 11:38:59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 79 Q. Any other roots of exposure besides inhalation? A. As far as -- in terms of trying to estimate -no, because when we're talking about reporting a dose and trying to estimate part per million years, that's inhalation, per se. Q. Okay. All right. So, the only route of exposure that you analyzed in calculating employee dosage for purposes of the Shell work exposure assessment was inhalation? MR. YOUNG: Object to -Q. (By Ms. Clancy) That was the route of exposure that you used? A. That's the -- MR. YOUNG: Object to the form, asked and answered. A. -- route of -- that is the standard by which, even if we had monitoring data, is what we would do -the exposure monitoring would be inhalation monitoring. Q. (By Ms. Clancy) Well, I'm just trying to understand because your paragraph says that chemical is toxic by all roots of exposure, inhalation, ingestion and skin absorption. So, I'm just trying to narrow down for purposes of the Shell exposure assessment study, you only used the inhalation for purposes of characterizing dose; is that right? You didn't -- you didn't use Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:39:03 11:39:03 11:39:04 11:39:06 11:39:09 11:39:11 11:39:13 11:39:16 11:39:17 11:39:18 11:39:20 11:39:25 11:39:29 11:39:30 11:39:31 11:39:34 11:39:39 11:39:40 11:39:44 11:39:47 11:39:48 11:39:48 11:39:48 11:40:00 11:40:03 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 80 ingestion and skin absorption to characterize dose, did you? A. Not dose the way we did inhalation, right. Inhalation was separate, yes. Q. What does that mean, not those the way we did inhalation? A. Well, I've tried to explain the four or five times already. Let me see if I can find another set of words, like I say, the -- Q. Well, let me ask you very simply: Was inhalation the only root of exposure that was used to calculate dose in the Shell exposure assessment study? MR. YOUNG: Asked and answered. Object to the form. A. When we report exposure in terms of equivalent part per million years, that means inhalation. Q (By Ms. Clancy) Okay. And -A. And when anyone in any exposure study reports part per million years, that refers to inhalation. MS. CLANCY: Okay. Object as nonresponsive. Can you show me my question again? Q. (By Ms. Clancy) My question is very simple. Was the inhalation the only root of exposure was -- that was used to calculate dose for purposes of the Shell exposure assessment study? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:40:06 11:40:08 11:40:13 11:40:16 11:40:16 11:40:19 11:40:24 11:40:28 11:40:33 11:40:38 11:40:42 11:40:44 11:40:47 11:40:48 11:40:50 11:40:56 11:40:56 11:40:56 11:40:52 11:40:56 11:40:58 11:41:02 11:41:03 11:41:03 11:41:03 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. YOUNG: Object to the form. Page 81 A. The calculation of dose is an inhalation type of calculation. That's what I'm trying to say. Q (By Ms. Clancy) Okay. A. In part per million years, as we reported, is an inhalation measurement. We took into account and noted in our forms, as we had them here, other routes that -- that we talked about. That when you report part per million years, you report exposure dose, you're talking about inhalation. That is the industrial hygiene principle. That's not something that Shell did or didn't do. That was a state and is a state of the art. MS. CLANCY: Okay. Object as nonresponsive. MR. YOUNG: Can I see that? THE WITNESS: Yes. MR. YOUNG: Go ahead. MS. CLANCY: Object as nonresponsive. Q. (By Ms. Clancy) Let me break it down even more simply. You reported your results in part per million years; is that right? A. I think we made our estimates in part per million years, right. Q. Okay. You made your estimates in part per Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:41:06 11:41:07 11:41:07 11:41:10 11:41:13 11:41:13 11:41:14 11:41:18 11:41:21 11:41:25 11:41:29 11:41:33 11:41:35 11:41:36 11:41:40 11:41:43 11:41:45 11:41:45 11:41:47 11:41:50 11:41:52 11:41:55 11:41:55 11:41:58 11:42:00 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 million years, correct? Page 82 A. Correct. Q. As is it your testimony, then, that inhalation assessments are what is used to make estimates in part per million years; is that right? A. Pretty much, yes. Q. Okay. And, therefore, since you reported your results in part per million years in the Shell exposure assessment, inhalation was what you used to determine the total dose; is that correct? A. I'm sorry. Shouldn't have -- please, I hate to make you repeat that question or have the reporter read it back. Q. Okay. Well, let's go over -- what we just established was, the results were reported in part per million years, correct, in the Shell -- A. That's correct. Q. Okay. And your testimony is that in order to report results in part per million years, you need to analyze the inhalation of the person -- person's inhalation of benzene; is that correct? A. That's correct. Q. Okay. You're not analyzing dermal contact to establish a part-per-million-years' result, correct? A. That's correct. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:42:00 11:42:03 11:42:03 11:42:04 11:42:08 11:42:10 11:42:13 11:42:15 11:42:16 11:42:17 11:42:23 11:42:24 11:42:26 11:42:28 11:42:29 11:42:30 11:42:31 11:42:32 11:42:33 11:42:33 11:42:35 11:42:37 11:42:41 11:42:46 11:42:48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 83 Q. You're not analyzing ingestion to derive a parts-per-million-years' result, correct? A. That's correct. Q. Okay. Therefore, the only criteria that you used to establish dose in determining your part-per-million-years' results was the root of inhalation; is that correct? MR. YOUNG: Object to the form. Asked and answered. A. Yes, again. But if there is dermal contact and there was enough liquid contact, we can give that an inhalation equivalent because the stuff is sitting on the skin, sitting on the clothing, you're inhaling it there. Q. (By Ms. Clancy) You can, but you didn't for purpose of this study? A. No, I didn't say that. Q. Well, I'm -- I'm -A. No. Q. Let be clear. I'm just -A. For purposes of this study, if somebody said my clothes were soaked with benzene, you know, there may have been a skin contact; but we would also say if your clothes was soaked with benzene, there was an inhalation contact and we would give it an inhalation number. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:42:50 11:42:54 11:42:57 11:42:58 11:42:57 11:42:59 11:42:59 11:43:00 11:43:03 11:43:07 11:43:10 11:43:12 11:43:15 11:43:18 11:43:20 11:43:22 11:43:27 11:43:30 11:43:33 11:43:33 11:43:35 11:43:43 11:43:43 11:43:43 11:43:43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 84 Q. Right. You would say, okay, person says clothes soaked with benzene. Surely they inhaled some of the benzene. MR. YOUNG: Object to the form. Q. (By Ms. Clancy) We're going to give it an inhalation number; is that right? A. That's what I just said. Q. Okay. But you wouldn't say, okay, person's clothes are soaked with benzene. They may have had both benzene by dermal absorption and benzene by inhalation absorption, correct? A. Yeah, I don't know how to characterize that even today as to what equivalent you give to that. Q. So, my -- the answer to my question is yes, right? I mean, you would have said, if a person came to you, I was doused in benzene, please analyze my exposure assessment, you would say, well, we will analyze what we think you might have inhaled, but we're not going to analyze what you might have gotten by dermal contact; is that correct? MR. YOUNG: Object to the form of the question. A. I would say that we can't analyze what you got dermally to make it equivalent to the inhalation. MS. CLANCY: Okay. Object as Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:43:43 11:43:43 11:43:45 11:43:47 11:43:47 11:43:50 11:43:52 11:43:56 11:43:59 11:44:00 11:44:00 11:44:04 11:44:08 11:44:15 11:44:16 11:44:18 11:44:18 11:44:19 11:44:22 11:44:26 11:44:29 11:44:32 11:44:35 11:44:37 11:44:37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nonresponsive. Page 85 Q. (By Ms. Clancy) My question is not whether you can or can't. A. That's the only way I can answer it. Q. My question is not whether you can or can't. Okay. I know your position on that. My question is, did you. Okay? My question is, did you? A. I can't answer beyond that what I've said. Q. You don't know? A. I -- Q. Did you -- did you take into consideration -- A. We did not make a conversion of skin absorption to inhalation. It -- I don't think we could do it even today. Q. Okay. And you didn't do it at the time, correct? A. I guess that's correct. Q. Okay. So, the route of exposure that you were looking at was a route by means of inhalation, correct? A. No. The route that we were calculating was an inhalation-based route. That's what PPM years means. Q. Okay. The route that you were calculating was an inhalation-based route, correct? A. That's right. Q. Okay. The route that you were calculating was Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:44:40 11:44:43 11:44:44 11:44:44 11:44:45 11:44:48 11:44:49 11:44:50 11:44:50 11:44:51 11:45:27 11:45:36 11:45:43 11:45:45 11:45:45 11:45:50 11:45:56 11:46:01 11:46:02 11:46:04 11:46:04 11:46:05 11:46:12 11:46:16 11:46:19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not a dermal-based route, correct? Page 86 MR. YOUNG: Object to the form. A. Yes. Q. (By Ms. Clancy) Okay. And the route that you were calculating for purposes of the Shell exposure assessment study was not an ingestion-based route, correct? MR. YOUNG: Object to the form. A. That's correct. Q. (By Ms. Clancy) Okay. And what the end point of the study produced is parts per million days per year that a typical job exposure might -- might result in; is that right? A. That's correct. Q. Okay. And, indeed, in making your estimates, you also took into consideration whether or not craftsman might be assigned to different zones during the day, correct? A. Yes. Q. Okay. And -- A. That's on the form. Q. Right. So, for example, if a craftsman worked in benzene areas on some days, but not on others, you would recognize that for purposes of performing your exposure assessments and assigning a value of part per Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:46:24 11:46:26 11:46:27 11:46:27 11:46:35 11:46:41 11:46:44 11:46:44 11:46:47 11:46:50 11:46:51 11:46:53 11:46:56 11:47:00 11:47:03 11:47:08 11:47:09 11:47:09 11:47:12 11:47:14 11:47:14 11:47:16 11:47:19 11:47:24 11:47:27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 87 million days exposure to that particular type of craft, correct? A. That is correct. Q. Okay. So -- and, in fact, you'd give them a lower-unit estimate where the craftsman weren't always working in a benzene-containing area on a continual basis, correct? A. Well, if the craftsman wasn't around benzene, we didn't escribe benzene exposure to them, that's correct. Q. All right. So, what my -- what my question is, your numbers here for a job exposure potential estimates, they take into consideration the fact that certain job tasks might at some periods be continually working in a benzene zone but on some days might not be working in those zones at all, correct? That's taken into account? A. Well, we take -- even on one day it could be A -- Zone A, Zone B and Zone C. Q. Right. A. Which would differ, sure. Q. And, so, my question is, the Shell Exposure Assessment Study recognizes that and accounts for it in its numbers and adjusts for it that certain folks might on one day be working around benzene, on the other day Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:47:32 11:47:34 11:47:37 11:47:39 11:47:42 11:47:44 11:47:47 11:47:49 11:47:54 11:47:55 11:48:33 11:48:36 11:48:37 11:48:42 11:48:44 11:48:47 11:48:51 11:48:53 11:48:56 11:49:00 11:49:02 11:49:06 11:49:07 11:49:10 11:49:13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 might not, and then it takes -- it takes those Page 88 considerations into effect when producing these exposure estimates, correct? A. Yeah, that's consistent with industrial hygiene practice, if you -- if we had the monitoring data. If a person is here and we monitor and get one level. If he's there and we monitor and get a different level, we adjust on the monitoring basis. It's no different from having had the data. Q. Okay. So, for example, the -- so, here's what I need you to explain to me: On the Shell exposure assessment report -- and I'll show you this. But the paragraph I'm going to ask you to look at is the higher numbers of exposure assessments represent the exposure potential range for a craftsman working in the benzene exposure area for an entire year. An example is a zone pipefitter postulated as being assigned every work day to the benzene exposure area in the zone. The more usual case is a zone craftsman who works in benzene areas on some days, but not on others. Recognizing this where appropriate, the exposure potential range for the maintenance job has been divided by the estimated number of craftsman that could have been assigned to that job giving a lower unit estimate. In general, this lower estimate would be more likely to represent the exposure Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:49:15 11:49:47 11:49:48 11:49:53 11:50:06 11:50:19 11:50:24 11:50:27 11:50:29 11:50:40 11:50:43 11:50:53 11:50:56 11:50:59 11:51:02 11:51:06 11:51:12 11:51:16 11:51:17 11:51:21 11:51:26 11:51:30 11:51:32 11:51:32 11:51:34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 89 potential of such a zone craftsman. Right there. A. Okay. What's the question? Q. Okay. So -- could I have that back a second? My question is, if we look at the, for example, job potential exposure estimates on Wood River, what -- what were the tasks that would exemplify that type of more, for lack of a better word, itinerant craftsman who worked one day at a benzene-containing job and another day on not? A. Well, for instance, a carpenter would be something like that. Q. Could a pipefitter be something like that? A. Well, there's some jobs here as pipefitters where they estimated -- there are two sets of estimates in this attachment. One is the estimated range for the job. The other is for a typical individual in that job. And they're different. So, a pipefitter here in one case at the coke oven benzene rack, a pipefitter would be estimated, time of the job would be less than 50 PPM days per year, which amounts to, what, the equivalent of perhaps .1 or something like that PPM. Q. Per year? A. No. PPM exposure. Q. Okay. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:51:35 11:51:40 11:51:42 11:51:46 11:51:49 11:51:53 11:51:58 11:52:00 11:52:06 11:52:10 11:52:14 11:52:14 11:52:18 11:52:22 11:52:26 11:52:27 11:52:33 11:52:33 11:52:33 11:52:34 11:52:37 11:52:40 11:52:44 11:52:47 11:52:53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 90 A. Okay. All I can do is look at this and look at the numbers -- the lower numbers in their estimates. Carpenter. And there's a pipefitter foreman, for example, and so on, who have these low numbers. There's a machinist. Other pipefitters here, depending upon where they worked. Whole variety of jobs and typical individuals. Instrument man, for example. Q. Okay. So, the way that you would reconstruct which folks from the Shell historic exposure assessment had the more itinerant tasks of one day they might be exposed to benzene and one day not -- for example, you gave the example of a carpenter -- is you'd look at whether or not their numbers were lower, vis-a-vis, the other -- other folks were working in the same areas; is that correct? A. No. Q. Okay. A. What you'd look at was -- first of all, the first paragraph that you read me before talked about looking at the job and then what typical individuals in the job did. So, first you looked at the job. And then you looked at that carpenter and say, okay, how many days typically would a carpenter be in that job in that unit per year. And then that individual would have that assessment of so many PPM days per year. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:52:56 11:52:57 11:53:01 11:53:04 11:53:09 11:53:09 11:53:12 11:53:15 11:53:15 11:53:16 11:53:16 11:53:19 11:53:21 11:53:23 11:53:23 11:53:34 11:53:39 11:53:44 11:53:47 11:53:49 11:53:51 11:53:52 11:53:55 11:53:59 11:54:02 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 91 Q. Okay. And the way that when I asked you to -when I asked you to look at the job exposure potential estimates and tell me, well, who are the folks on that that might have had the more itinerant jobs, the jobs that were sporadic in nature with respect to their exposure, you said, well, I can back into that by looking at lower numbers; is that right? A. Yeah. Q. Okay. A. Yeah, yeah. Q. And, so, Shell accounted for that type of work in its Shell historic exposure assessment study, correct? A. That's correct. Q. Okay. NIOSH -- not only did you base your studies, for example, your olfactory and sensory perception on peer-reviewed literature, but the Government, NIOSH, also approved the manner in which you were doing your study; is that correct? A. Well, it wasn't official approval. We brought the protocol -- I personally brought the protocol to the director of NIOSH. And, essentially, I said, this is what we plan to do. Look at it. Tell us what we're doing right. Tell us what we're doing wrong. And if it's wrong, tell us how to fix it before we start. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:54:03 11:54:07 11:54:10 11:54:13 11:54:16 11:54:16 11:54:18 11:54:20 11:54:27 11:54:30 11:54:31 11:54:33 11:54:37 11:54:40 11:54:42 11:54:42 11:54:45 11:54:49 11:54:54 11:54:57 11:54:57 11:55:03 11:55:08 11:55:10 11:55:13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 92 Q. Okay. And it was your belief that NIOSH or that OSHA appeared satisfied with the way that you were doing the historic exposure study, correct? A. Well, we didn't involve OSHA with it in the beginning. NIOSH is the scientific arm, if you will, of OSHA. And those are the ones we went to. Q. Okay. So, it was your belief that NIOSH was -appeared satisfied with the manner in which you were conducting your historic exposure assessment; is that correct? A. I don't recall if they suggested, and I think they may have suggested certain changes in the original protocol. But once we got their recommendations in, plus our other consultants, that was the final protocol with which we went, yes. Q. Okay. So, with the final protocol that you used for your historic exposure assessment, NIOSH appeared satisfied with the final protocol that Shell used for its exposure assessment; is that correct? A. That's correct. Q. Okay. So, for example, when you wrote in 1984 note to file, various OSHA personnel present asked for further information with regard to the historic exposure study, they appeared satisfied with our responses regarding sensory criteria for making exposure Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:55:16 11:55:18 11:55:20 11:55:25 11:55:28 11:55:28 11:55:29 11:55:31 11:55:33 11:55:34 11:55:39 11:55:42 11:55:42 11:55:43 11:55:44 11:55:46 11:55:51 11:55:56 11:55:57 11:55:59 11:56:01 11:56:03 11:56:07 11:56:11 11:56:12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 93 assessments, validation of the criteria, olfactory fatigue factors and corrections for benzene-containing mixtures. I show you that. Right there. A. Yeah, but that's OSHA, that's not NIOSH, but yeah. Q. Okay. A. And this represents a meeting that we had with OSHA in '84, not NIOSH. But, yes, that's what it says, yeah. Q. Okay. So, then -- so then both OSHA and NIOSH appeared satisfied with the final criteria used with respect to the Shell historic exposure assessment study, correct? A. That's what it says, yes. Q. Okay. So, the study was not only based on peer-reviewed data, it was also a study that the NIOSH and OSHA said we are satisfied with the final criteria by which Shell performed its -- its historic exposure assessment analysis, correct? A. Right. Well, we looked at NIOSH as part of the peer review, sure. Q. Okay. And I'm -- okay. So, part of the peer review was you relied on peer-reviewed literature in conducting your -A. And in developing the protocol. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:56:14 11:56:14 11:56:18 11:56:23 11:56:28 11:56:30 11:56:34 11:56:35 11:56:37 11:56:40 11:56:40 11:56:46 11:56:47 11:56:52 11:56:56 11:56:59 11:57:01 11:57:01 11:57:02 11:57:02 11:57:07 11:57:09 11:57:13 11:57:14 11:57:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 94 Q. In develope -- much better way. In developing the protocol for the Shell exposure assessment study, you relied on peer-reviewed literature and also relied on peer review, such as NIOSH and OSHA, to confirm that they were satisfied with the manner in which Shell was conducting its historic exposure assessment; is that correct? A. Well, as I've testified, we -- we looked at -asked NIOSH to comment on it. We asked other consultants from academia to comment on it. And all of that was incorporated into the final -- into the final protocol that we used. Q. Okay. So, I just want to make a list of, what would you call it, verifications of protocol that Shell used. Ways that they confirmed that they were taking the right approach. Okay? A. Okay. Q. One -- one verification was you had consultants from academia bless the manner in which Shell was performing its historical exposure assessment; is that correct? A. Well, we had them bless what we intended to do before we started. Q. Okay. So, before you even started, you consulted with experts from academia? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:57:21 11:57:19 11:57:24 11:57:26 11:57:30 11:57:32 11:57:32 11:57:32 11:57:36 11:57:37 11:57:41 11:57:43 11:57:45 11:57:47 11:57:47 11:57:48 11:57:52 11:57:55 11:58:00 11:58:00 11:58:04 11:58:07 11:58:10 11:58:13 11:58:13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Correct. Page 95 Q. And asked them this is the manner in which we're going to perform this historic exposure assessment, does that comport with your views as to how this exposure assessment should be performed; is that what you did? A. That's correct. Q. Okay. And I'm assuming that the folks that you consulted with in academia, that they had expertise in, for example, industrial hygiene and health and safety? A. They were all professors of industrial hygiene. Q. Okay. So, you consulted with -- and I'm assuming that they were qualified and esteemed professors of industrial hygiene? A. Absolutely. Q. Okay. So, first step is you -- before you even started this study, you got blessings from esteemed professors of industrial hygiene in academia, saying the protocol that you're going to use at Shell to conduct this historic exposure assessment study is appropriate? A. Well, either that or they would say, you're wrong over here, we would suggest you do it that way. And they would have the input, and we would obviously listen to their input. Q. Okay. And you made adjustments so that your Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:58:17 11:58:21 11:58:23 11:58:27 11:58:29 11:58:29 11:58:32 11:58:35 11:58:39 11:58:40 11:58:50 11:58:50 11:58:50 11:58:50 11:58:51 11:58:54 11:58:55 11:58:57 11:58:58 11:58:59 11:59:01 11:59:03 11:59:03 11:59:08 11:59:09 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 96 Shell historic exposure assessment study could conform with what were -- the recommendations were from esteemed qualified professionals from academia as to how this study should be conducted, correct? A. Absolutely. Q. Okay. And then after you -- in the course of conducting your study, you used peer-reviewed literature to develop data end points, appropriate data end points such as the sensory data points; is that correct? A. No. At the beginning, and that was part of the protocol, how would we do that. And in the beginning, not only do we go to our, as we say, esteemed people in academia, we went to NIOSH, as well. Q. Well, I'm not just saying esteemed -A. It was in parallel. They were all in parallel. Q. Well, I'm not just saying they're esteemed people -- you're saying they're esteemed people from academia, too, aren't you? A. Oh, of course. Q. Okay. We're both saying that they're esteemed? A. Yes, sure. Q. Okay. A. But we also went to NIOSH simultaneously. Q. Okay. A. We went to NIOSH -- in other words, I sent out Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 11:59:11 11:59:15 11:59:18 11:59:23 11:59:25 11:59:26 11:59:27 11:59:29 11:59:34 11:59:34 11:59:39 11:59:43 11:59:44 11:59:46 11:59:46 11:59:47 11:59:49 11:59:52 11:59:53 11:59:53 11:59:56 12:00:02 12:00:05 12:00:07 12:00:06 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 97 letters and called and spoke to the academicians. At the same time I went down to Atlanta and spoke with Dr. Milar, the head of NIOSH. I mean, it was all done within that same time period before we put the protocol together and said, okay, now we've got it, this is what we're going to do. Q. Okay. So, not only did esteemed qualified persons from academia bless the protocol by which ultimately Shell was going to perform its exposure assessment, but the head of NIOSH found it satisfactory -- the final protocol satisfactory; is that correct? A. Yes, after we included whatever comments he may have made or his staff may have made. Q. Okay. Ultimately -A. Ultimately, yes. Q. -- the head of NIOSH found it satisfactory, the protocol that Shell was using? A. That's correct. Q. Okay. And, then, the third thing is that not only did NIOSH find the protocol satisfactory, but OSHA found the protocol satisfactory that Shell used in its exposure assessment -A. Well -Q. -- is that correct? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:00:07 12:00:09 12:00:12 12:00:15 12:00:18 12:00:21 12:00:22 12:00:27 12:00:29 12:00:31 12:00:31 12:00:31 12:00:31 12:00:35 12:00:38 12:00:46 12:00:48 12:00:51 12:00:53 12:00:57 12:00:59 12:01:04 12:01:06 12:01:09 12:01:12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 98 A. Yeah, ultimately, yes. Q. Okay. And -- but there was a fourth thing, which is that, as you testified, even before you -- as you were developing the protocol from the study, you went to the peer-reviewed literature and said, well, what would be the appropriate analysis to be using when conducting our olfactory sensory data collection; is that correct? A. We had to start with something before -Q. Yeah. A. -- we gave them -Q. Yeah. A. -- to the consultants. So, we went to the -we used our own expertise, we went to the peer-reviewed literature and we put a basic or an initial protocol together, which then we vetted through these academicians and through NIOSH. Q. Okay. So, your initial protocol was based on peer-reviewed literature, which you then vetted, adjusted and ultimately got blessed by esteemed academicians, NIOSH and OSHA; is that correct? A. Well, as I say, I don't recall that I took it to OSHA before we started the study. Q. Well, that's why I used the word ultimately. A. Ultimately. Ultimately, yes. Ultimately, Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:01:13 12:01:16 12:01:26 12:01:26 12:01:25 12:01:25 12:01:25 12:01:26 12:01:30 12:01:32 12:01:33 12:13:29 12:13:31 12:13:36 12:13:37 12:14:19 12:14:23 12:14:24 12:14:26 12:14:28 12:14:30 12:14:35 12:14:36 12:14:39 12:14:39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 99 yeah. But we had to start some place, and that was an in-house, yeah. Okay. THE WITNESS: What do we do? Break now, then? Is that all right? MS. CLANCY: That's fine. I think we're finished with that question. THE WITNESS: Okay. THE VIDEOGRAPHER: We're now going off the record. The time is approximately 12:00 o'clock. We're ending tape two. (Recess taken) THE VIDEOGRAPHER: We're now back on the record. The time's approximately 12:12. We're starting tape three. Q (By Ms. Clancy) The Shell historic exposure assessment did not analyze any contractor data; is that correct? A. As far as I can recall, yes. Q. It was all employees; is that right? A. That's my belief, that's correct. Q. Okay. But Shell does monitor its contract workers; is that correct? A. It has, yes. I can't tell you what it does now. I'm not there now. Q. Oh, when you were there -- Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:14:40 12:14:40 12:14:42 12:14:43 12:14:45 12:14:47 12:14:50 12:14:50 12:14:54 12:14:57 12:15:27 12:15:33 12:15:35 12:15:38 12:15:38 12:15:41 12:15:43 12:15:44 12:15:46 12:15:46 12:15:47 12:15:47 12:15:50 12:15:55 12:15:58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 100 A. Yeah. Q. -- at Shell, did it monitor its contract workers? A. It monitored, yes. Q. Okay. And it would monitor them in situations in -- such as turnarounds or wherever they might be working; is that correct? A. No. It would monitor the job. And if they were there, they would monitor the contractors. Q. Okay. When you -- I apologize. When you were performing your job at Shell, you didn't operate in a vacuum, did you, vis-a-vie, other oil companies, did you? MR. YOUNG: Object to the form. Q (By Ms. Clancy) I mean, you would keep up communications, I would presume, with your counterparts at Exxon and other oil companies; is that right? MS. RIEGLE: Object to the form. A. That's right. Q. (By Ms. Clancy) Okay. And would you do that -- would one of the reasons that you would do that in order to see, you know, what procedures they were implementing for safety and also, you know, if -- to confirm that your procedures and their procedures were similarly safe or get ideas from them or compare notes Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:16:01 12:16:04 12:16:06 12:16:08 12:16:09 12:16:09 12:16:11 12:16:11 12:16:12 12:16:15 12:16:20 12:16:23 12:16:27 12:16:30 12:16:33 12:16:36 12:16:41 12:16:46 12:16:48 12:16:49 12:16:51 12:16:51 12:16:53 12:16:56 12:16:59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 101 and you'd want to operate as a team in terms of implementing good safe measures at each refinery; is that correct? MR. YOUNG: Object to the form of the question. A. He think you're putting it incorrectly. Q. (By Ms. Clancy) Okay. Tell me how. A. As an industrial hygienist -- as industrial hygienist, I would talk to all of my colleagues and peers and so on and try to learn from each other. We wouldn't necessarily set up a team. I mean, I wouldn't characterize it as that. But I don't work in a vacuum. And you used that term. So, I have to contact other peers and meet them at professional meetings and so on. Q. Okay. And would you say that, for example, Exxon Baytown, would you say that Shell Deer Park was -created a safer work environment than at Exxon Baytown? MR. YOUNG: Object to the form. It calls for speculation. A. I've never been to Exxon Baytown. I can't answer that. Q (By Ms. Clancy) Okay. But you've talked to -in your job at Shell Deer Park -- or, excuse me, at Shell, you would talk to the -- your counterpart at Exxon in terms of what types of industrial hygiene Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:17:04 12:17:07 12:17:08 12:17:10 12:17:11 12:17:16 12:17:19 12:17:20 12:17:21 12:17:22 12:17:24 12:17:24 12:17:26 12:17:28 12:17:30 12:17:31 12:17:34 12:17:37 12:17:39 12:17:44 12:17:45 12:17:47 12:17:48 12:17:49 12:17:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 102 procedures and safety measures they were implementing at Exxon, would you not? A. I'd talk to the corporate people, yeah. Q. Yeah. Okay. And did you have any reason to believe that -- that they were -- that Exxon was operating in a less safe manner than Shell -- MR. YOUNG: Object to the form. Asked and answered. Q (By Ms. Clancy) -- with respect to their benzene policies? MR. YOUNG: Asked and answered. A. I had no way. I -- you know -- I think we all tried to do the best possible job we could. And that's the only way I can answer that. Q. (By Ms. Clancy) Okay. And my question is, did you have any reason -- and you may not have, you may not have ever heard anything, but did you have any reason to believe that Exxon was operating in a way that was, with respect to its benzene policy, in a way that was less safe than what Shell was doing? Did you have any -- MR. YOUNG: Object to the form. A. I had even no reason to even think in those terms. Q (By Ms. Clancy) Okay. So, that answers my question. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:17:51 12:17:52 12:17:54 12:17:59 12:18:00 12:18:00 12:18:02 12:18:02 12:18:02 12:18:01 12:18:03 12:18:09 12:18:09 12:18:09 12:18:14 12:18:19 12:18:22 12:18:22 12:18:26 12:18:26 12:18:30 12:18:30 12:18:31 12:18:35 12:18:38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Okay. Page 103 Q. You never heard, well, those Exxon folks they're just -- MR. YOUNG: Object to the form. Q. (By Ms. Clancy) -- doing things that are really unsafe? MR. YOUNG: Object to the form of the question. MS. RIEGLE: Form. A. No. Q. (By Ms. Clancy) Okay. MS. CLANCY: Basis? MR. YOUNG: Asked and answered. Q. (By Ms. Clancy) When -- the contractor data -- contractors often times would have higher exposure than employees, correct? A. No, I don't know. Q. You don't know? You've never observed that? A. I don't recall that. You know, which contractor, which employee, but basically a contractor would not necessarily have had higher exposures than employees. Q. Well, turnarounds are a situation that may lead to higher exposures to benzene, correct? MR. YOUNG: Object to the form. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:18:38 12:18:41 12:18:44 12:18:47 12:18:49 12:18:53 12:18:54 12:18:55 12:18:58 12:18:59 12:19:02 12:19:06 12:19:08 12:19:08 12:19:10 12:19:10 12:19:10 12:19:12 12:19:24 12:19:29 12:19:34 12:19:35 12:19:35 12:19:37 12:19:40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 104 A. Well, no. It depends upon how well you've purged the system, how well you've cleaned it out and how careful you are in doing a turnaround. And we have contractors in the turnarounds, and they work together with employees. And I can't tell you a contractor got more or less. Q (By Ms. Clancy) So, the contractors work together with the employees during a turnaround; is that right? A. In general, that is correct. Now, if you're asking me for which -- this task versus that task, I have no way of answering that. Q. But as a general principle, the contractors work together with the employees during a turnaround -- A. Sure. Q. -- is that right? Okay. A. As far as I can remember, yes. Q. Okay. And let me get this straight. Your testimony today isn't that contractors have, as a matter of course, less exposure to benzene than employees? Is that -- you're not testifying that, are you? A. I didn't say that. Q. Okay. Nor are you testifying that you know, as you sit here today, whether contractors have more exposure as a matter of course? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:19:41 12:19:42 12:19:44 12:19:45 12:19:46 12:19:48 12:19:49 12:19:50 12:19:54 12:19:58 12:20:02 12:20:02 12:20:02 12:20:05 12:20:08 12:20:10 12:20:13 12:20:16 12:20:17 12:20:19 12:20:21 12:20:22 12:20:25 12:20:27 12:20:30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Same answer. Page 105 Q. Okay. You just don't know as you sit here today, correct? MR. YOUNG: Object to the form. A. I hadn't -- no, I have no reason to believe they would be one way or another. Q (By Ms. Clancy) Okay. Right. You have no data one way or the other as to whether contractors have more historical exposure to benzene than employees; is that correct? MR. YOUNG: Object to the form. That misstates his testimony. A. I said I have -- again, all I can say is repeat what I said. I have no way of saying whether they had more or less. And I have no reason to believe that they would have more or less. It depends upon the task, the time, the job, the care, what happened. Q (By Ms. Clancy) Okay. A. I can't say generically. Q. You can't say as you sit here today? A. That's correct. Q. Okay. Because I'm just trying to understand this because at trial I don't -- I'm trying to understand if you're going to say, well, everybody knows that contractors have less exposure to benzene than Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:20:31 12:20:34 12:20:34 12:20:36 12:20:39 12:20:40 12:20:41 12:20:44 12:20:45 12:20:44 12:20:45 12:20:47 12:20:49 12:20:50 12:20:51 12:20:52 12:20:55 12:20:55 12:21:40 12:21:44 12:21:50 12:21:54 12:21:58 12:22:02 12:22:02 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employees? Page 106 A. I can't say that. Q. Okay. And -- and I -- and you can't say, as you sit here today, whether or not everybody knows that contractors have more exposures than employees? That's the reason I'm asking this -- A. Well, we're talking about contractors in benzene areas. Q. Yes. A. Obviously a contractor who's not in a benzene area is not going to have -- is going to have less exposure than an employee in a benzene area. Q. Right. Well, I'm -- I'm talking about -- A. Equivalent areas. Q. Yes. A. Okay. Yeah. You've characterized it correctly. Q. Okay. In -- with respect to hazards that may present itself at a unit -- for example, exposure to benzene -- it's the operators who are responsible for the specific areas in a work place, and part of their job is to be familiar with the substances in that area and the hazards involved in that part of the process; is that correct? A. That's correct. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:22:03 12:22:05 12:22:07 12:22:10 12:22:10 12:22:13 12:22:16 12:22:20 12:22:21 12:22:24 12:22:26 12:22:30 12:22:34 12:22:38 12:22:42 12:22:45 12:22:48 12:22:52 12:22:56 12:23:01 12:23:06 12:23:09 12:23:13 12:23:15 12:23:19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 107 Q. Okay. Whereas maintenance people, however, may work in many different areas, correct? A. Well, maintenance people will work in different areas. Q. Okay. And while they may be experts in repairing equipment, they may not be familiar with what's inside the equipment or its hazards, correct? MR. YOUNG: Object to the form. A. No, not correct. In -- at least in the Shell locations I'm familiar with, there were signs, there were material safety data sheets, there were warnings. And, so, they would be familiar with what's in those areas. They may not know what's exactly -- what the composition of a particular solvent stream might be in a given -- given pipe, but they would know that there were materials around that needed certain precautions. Q (By Ms. Clancy) Well, I'm just reading from the Hazard Communication in the Work Place Training Resource Program, distributed by G.L. Green. And you were one of the recipients in September, 1984. And the training program says maintenance people, however, work in many different areas. While they may be experts in repairing equipment, they may not be familiar with what's inside the equipment or its hazards. You see where it says that? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:23:27 12:23:30 12:23:32 12:23:32 12:23:36 12:23:37 12:23:38 12:23:39 12:23:41 12:23:42 12:23:48 12:23:51 12:23:53 12:23:56 12:23:56 12:23:58 12:24:00 12:24:02 12:24:03 12:24:06 12:24:09 12:24:12 12:24:12 12:24:17 12:24:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 108 A. Yeah. And that's exactly why we train them to make sure they're familiar. Q. Well -A. Glenda was writing here to me, says that initially they may not be familiar because they're not in it all the time and, therefore, we have to train them to be familiar with it. Q. Okay. Where does it say that, you have to train them to be familiar with it? A. Well, that's what a whole hazard communication program talks about, and that's what the whole -Q. Well, actually -- actually, this says -A. It doesn't say it in that one paragraph -Q. Right. A. -- but that's why you set up a hazard communication program, to communicate hazards. Q. Well, actually this says if the work involves potentially hazardous substances or condition, the operator can inform maintenance people of the hazards necessary of safety equipment and procedures before they begin work. Do you see where it says that? A. That's right. Q. That says the operator can inform them. A. No. That says -Q. Does this or does this not say the operator can Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:24:17 12:24:18 12:24:20 12:24:23 12:24:28 12:24:30 12:24:35 12:24:43 12:24:46 12:24:46 12:24:46 12:24:49 12:24:49 12:24:54 12:24:56 12:24:59 12:25:00 12:25:02 12:25:07 12:25:11 12:25:15 12:25:17 12:25:19 12:25:21 12:25:24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inform maintenance? Page 109 A. Ms. Clancy, there are a whole bunch of things that are done. That's one of the things that are done. Obviously when you walk in -- when you walk into an area and you're not familiar with the area and somebody working in the area is there, you rely on the person who is -- again, I have to give you an analogy. You go to the sergeants to find out what's happening on the battle field. Q. All right. Well, let's talk about a benzene unit. Why don't we talk about a benzene unit as an analogy? A. Okay. The benzene unit analogy is, if I had an -- if we had a maintenance worker who was going to be working in the area, there would be preliminary training. And that's what a hazard communication program is here. In addition to that, one of the ways that the individual walking into the area is -- is made aware of what the problem is, is by the people who work in that area who know the problems intimately, telling that person. And that's all that says. Q. Right. It says that the -- it says the operator can inform maintenance people of the hazards, necessary safety equipment and procedures before they begin work? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:25:25 12:25:25 12:25:26 12:25:26 12:25:27 12:25:35 12:25:35 12:25:35 12:25:35 12:25:35 12:25:39 12:25:44 12:26:00 12:26:04 12:26:05 12:26:09 12:26:12 12:26:16 12:26:16 12:26:18 12:26:21 12:26:22 12:26:26 12:26:30 12:26:32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Right. But -- Page 110 Q. That's what that says. A. -- you have to look at that in context. MS. CLANCY: Object as nonresponsive. Q. (By Ms. Clancy) Does this say the operator can inform maintenance people of the hazards, necessary safety equipment and procedures before they begin work? A. In context, that's what that says. MS. CLANCY: Okay. Object to the nonresponsive portion of that. Q. (By Ms. Clancy) Where does this say that -- retrack that. Okay. And, in fact, no work can be done on a unit without the operator's knowledge and consent, correct? A. There are forms that have to be filled out, and there are safety permits that have to be filled out. And it's the local operator who has to sign off on -- on that. Q. Right. And, therefore, no work can be done on the unit without the operator's knowledge and consent; is that right? A. The operator has to sign off -- the operator who has to sign off on that permit is the one who also limits what can be done there, yes. MS. CLANCY: Object as nonresponsive. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:26:33 12:26:35 12:26:39 12:26:41 12:26:43 12:26:44 12:26:46 12:26:47 12:26:51 12:26:53 12:26:57 12:26:57 12:26:58 12:27:00 12:27:03 12:27:03 12:27:05 12:27:08 12:27:08 12:27:09 12:27:10 12:27:13 12:27:13 12:27:15 12:27:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 111 Q. (By Ms. Clancy) My question is simply this: Is it correct that no work is done on the unit without the operator's knowledge and consent; is that correct? A. I've said that twice now. I'll say it a third time. Q. Is it correct or is it not correct? A. I'll say it a third time. No work can be done on a unit without a permit. One of the signers on the permit is the operator. And, therefore, the operator has to approve work on the permit -- on the area. MS. CLANCY: Okay. Object as nonresponsive. Q (By Ms. Clancy) My question is simply this: Is this statement correct or is it not correct -- MR. YOUNG: Object to the form. Q. (By Ms. Clancy) -- no work is done on the unit without the operator's knowledge and consent? MR. YOUNG: Asked and answered. Object to the form. A. I'm going to stop. I've said -- I've given you my answer three times already, Ms. Clancy. I can't say it any other way. Q (By Ms. Clancy) You can't tell me whether that statement is correct or not correct? A. It doesn't take a simple yes or no. If there Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:27:21 12:27:25 12:27:29 12:27:32 12:27:34 12:27:38 12:27:41 12:27:43 12:27:46 12:27:49 12:27:49 12:27:53 12:27:53 12:27:56 12:28:01 12:28:01 12:28:03 12:28:06 12:28:06 12:28:11 12:28:12 12:28:26 12:28:29 12:28:33 12:28:35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 112 are four operators on a unit and one is the one who signs the permit and I say you're correct and you say, well, this operator didn't sign the permit, he's not going to do anything. I think my answer stands, and it advances what you asked. Work is not done on a unit without a permit being signed, and operator is one of the people who signs the permit. Q. Okay. So, work is not done on a unit without a permit being signed; is that correct? A. Correct. Q. Okay. And an operator must sign the permit; is that correct? A. An operator or a supervisor. And there are various protocols, who signed the permit. But an operator is one of those who signs it. Q. Okay. Or you mean a Shell operator or a Shell supervisor must sign the permit? A. That's correct. Q. Is that correct? A. Yeah. Q. Okay. And, in fact, maintenance folks, when working on a unit, have to work together with the operator to make sure that the work is performed safely; is that right? A. Well, together or alongside or in the presence Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:28:38 12:28:38 12:28:41 12:28:45 12:28:48 12:28:51 12:28:51 12:28:53 12:28:53 12:28:54 12:28:54 12:28:55 12:28:57 12:28:57 12:28:59 12:29:03 12:29:06 12:29:08 12:29:09 12:29:10 12:29:10 12:29:10 12:29:13 12:29:17 12:29:18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of, yes. Page 113 Q. Okay. So, for example, one example might be if you wanted to insert a blind in a unit. You better make sure you talk to the operator to make sure that that pipe or stream has been cut off; is that correct? MR. YOUNG: Object to the form of the question. A. Well, essentially that's correct. Q (By Ms. Clancy) Yeah. A. Yeah. Q. I mean, that's just an example of how they have to work hand in hand together? A. As an example, that's correct. Q. Okay. So, maintenance folks, in performing their tasks, if they're going to perform them safely, they better make sure that they work hand in hand with the operators of the unit; is that correct? A. Well, I don't know what you mean by hand in hand; but I'll accept that. Q. Okay. A. Okay. Q. And I mean -- by hand in hand I mean in cooperation with and alongside the Shell operators of the unit; is that correct? A. Well, in cooperation with. Once the operator Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:29:20 12:29:24 12:29:27 12:29:29 12:29:30 12:29:33 12:29:34 12:29:34 12:29:36 12:29:36 12:29:38 12:29:42 12:29:47 12:29:47 12:29:48 12:29:50 12:29:53 12:29:54 12:29:55 12:30:04 12:30:06 12:30:08 12:30:09 12:30:09 12:30:10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 114 has signed off and is satisfied that the maintenance person knows how to open -- open the pipe and put in the blind, the operator doesn't have to stand over his shoulder. Q. Right. But the operator has to ensure that it's being done safely, correct? A. The -MR. YOUNG: Object to the form of the question. A. The operator has to ensure that the -- that the maintenance person, yes, knows what he's doing and the parameters of what the job is going to be are spelled out. Q (By Ms. Clancy) Okay. And it's the -- as we discussed earlier, it's the Shell operator or the Shell supervisor who spells out the parameters of the job, correct? A. Pretty much so, yes. Q. Okay. And it's the Shell operator or Shell supervisor who must be there with the maintenance person to confirm that the work is being performed safely, correct? A. At least initially. MR. YOUNG: Object to the form. A. At least initially, yeah. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:30:11 12:30:13 12:30:19 12:30:21 12:30:24 12:30:25 12:30:26 12:30:27 12:30:31 12:30:36 12:30:41 12:30:45 12:30:47 12:30:51 12:30:52 12:30:52 12:30:54 12:30:56 12:31:01 12:31:02 12:31:02 12:31:03 12:31:05 12:31:07 12:31:09 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 115 Q (By Ms. Clancy) Okay. And as the day goes on, if, for example -- are you telling me then that you don't have somebody from Shell watching over the maintenance folks, making sure that their work is being done safely? MR. YOUNG: Object to the form of the question. A. I can't answer that in a general term. If a maintenance person is in on a -- on a unit, the permit is signed, the operator has signed off on it and the individual starts his work, the operator may have to be someplace else within the unit while the maintenance person is doing that. You don't have an operator standing by and peering over the individual's shoulder while he's doing whatever he's doing. Q (By Ms. Clancy) But you wouldn't expect the operator to leave the unit and leave the maintenance person alone there, would you? MR. YOUNG: Object to the form. Hang on, Howard. Ms. Clancy, Mr. Kusnetz is an industrial hygienist. He wasn't ever a Shell operator. So, to the extent you're asking him questions outside his scope and knowledge, he probably can't answer. MS. CLANCY: Object to very long sidebar. Q (By Ms. Clancy) I'm asking about safety Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:31:12 12:31:20 12:31:24 12:31:27 12:31:30 12:31:30 12:31:32 12:31:35 12:31:38 12:31:42 12:31:45 12:31:48 12:31:53 12:31:58 12:32:08 12:32:08 12:32:08 12:32:08 12:32:10 12:32:11 12:32:16 12:32:21 12:32:23 12:32:27 12:32:29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 116 practices. Okay. The -- was it -- would Shell expect its supervisors and operators to confirm that, for example, maintenance procedures performed during the turnaround were performed safely? A. Yes. Q. Okay. And they'd also expect them to be there to make sure that the procedures during a turnaround were performed safely, correct? A. It depends upon the procedure. If depends upon the procedure. If -- generally that is correct. If you're asking would there be always a Shell supervisor or a Shell operator looking over a maintenance person's shoulder throughout the entire period of time that the work is done, my impression is probably not. That you start, you check, you continue; but you're not standing there minute by minute. I can't tell you more than that. Q. And thank you for clarifying. My question isn't are they standing next to them minute by minute, my question is, as a general principle, Shell expected its supervisors and its operators to check in and assure that the work being performed, for example, during a turnaround by maintenance workers, was being performed, according to Shell standards and safely; is that correct? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:32:30 12:32:34 12:32:36 12:32:38 12:32:40 12:32:41 12:32:44 12:32:47 12:32:48 12:32:50 12:32:50 12:32:53 12:32:56 12:32:57 12:32:58 12:32:59 12:33:03 12:33:05 12:33:06 12:33:06 12:33:07 12:33:08 12:33:10 12:33:12 12:33:15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 117 A. Shell expected all of its employees to work by Shell standards and safely. So, that is correct. Q. Okay. And they would -- in turn, it would also expect its employees to -- A. Anyone who was in the vicinity. Q. Yeah. And it would expect it's employees to ensure that outside maintenance workers were performing their work safely, correct? MR. YOUNG: Object to the form of the question. A. It would require that the on-site maintenance workers were knowledgable of how to do the work and how to do it safely. And that they did do it safely and follow the permit procedures. Q (By Ms. Clancy) And the permit procedures were how to do it safely, were written and enforced by the Shell operators, correct? MR. YOUNG: Object to the form of the question. A. They were -- they were signed off on by the Shell operators, that's correct. Q (By Ms. Clancy) And the Shell operators were expected to make sure that the way that they crafted the permit was, in fact, the way that the job was executed, correct? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:33:16 12:33:19 12:33:19 12:33:22 12:33:22 12:33:25 12:33:27 12:33:28 12:33:33 12:33:36 12:34:49 12:34:51 12:34:54 12:35:01 12:35:05 12:35:08 12:35:08 12:35:16 12:35:21 12:35:26 12:35:31 12:35:43 12:35:44 12:35:43 12:35:45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 118 A. I don't know who would write a particular permit; but basically that's correct, if you're talking about a Shell employee doing a permit. Q. Right. A. An operator. I'd rather use the word employee. Q. Oh, okay. So, the Shell employees were expected to make sure that the way that they had crafted the permit, that that work was in turn done according to the specifications set forth in the permit, correct? A. Absolutely. Q. Okay. I want to ask you a question about the -- Ms. Phillips' industrial hygiene services staff 1985, IHS annual report. And, again, this was without -- produced to us without bates label. So, I'll show it to you. A. Okay. Q. Okay. Now, on page two of the report, Ms. Phillips talks about benzene exposures summary update includes approximately 11,000 samples. And that was in 1985. A. Where is that? Where did you find that? Q. Right there. A. Oh, okay. Okay. Q. Okay. Are those samples kept on a -- retract that. That's a database that she's referring to. Where Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:35:49 12:35:51 12:35:52 12:35:59 12:35:59 12:36:01 12:36:02 12:36:04 12:36:07 12:36:07 12:36:07 12:36:13 12:36:17 12:36:18 12:36:19 12:36:21 12:36:21 12:36:21 12:36:25 12:36:26 12:36:29 12:36:32 12:36:35 12:36:35 12:36:37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is that database kept? Page 119 A. Today, I have no idea. Q. Where was it kept then? A. Database was kept -- I think it was in our offices or whether our information people have that. I don't recall where we had that. Q. So, it was a database. A. It was internal to the company. I don't know physically where -- I don't recall physically where it was. Q. Okay. And, so, internally, it was a database of, what is it called, database of benzene exposure summaries? A. Summary. Yeah. Q. Which includes 11,000 samples. A. 11,000 samples. Q. Okay. A. It was computerized someplace and on some mainframe someplace, yeah. Q. Okay. And you could use that computer to go in and sort by what type of area had what type of exposure, I would presume; is that right? A. That's correct. Q. Okay. And it was a faster way to do that than, for example, going through thousands of pages, trying ot Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:36:42 12:36:44 12:36:45 12:36:48 12:36:49 12:36:52 12:36:55 12:36:56 12:36:58 12:37:01 12:37:02 12:37:03 12:37:04 12:37:04 12:37:05 12:37:08 12:37:13 12:37:16 12:37:17 12:37:17 12:37:23 12:37:23 12:37:27 12:37:28 12:37:54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 120 determine what area had what exposure. I mean, going into the computer and accessing those data points, I would assume, would be a lot more efficient; is that right? A. Well, the input to the computer were literally thousands of pages of sampling forms as they came in from a field. Q. Right. And, so, the computer, I would imagine, allowed you an easier way to sort through those as opposed to manually going through all those data points; is that right? A. Sure. Q. Is that correct? A. Sure. Q. Okay. And do you have any reason to believe that that internal database is no longer in existence? A. No. Just quite the opposite. I would suspect it still is someplace. Q. Okay. A. And has been added to since 1985. Q. Okay. A. I have no knowledge one way or the other. All I can do is say I suspect. Q. Okay. One item on Ms. Philips' 1985 Industrial Hygiene Services Staff Report, is she talks about trade Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:37:58 12:38:00 12:38:00 12:38:03 12:38:07 12:38:09 12:38:12 12:38:19 12:38:23 12:38:28 12:38:32 12:38:40 12:38:42 12:38:44 12:39:53 12:39:53 12:39:53 12:39:53 12:40:08 12:40:10 12:40:14 12:40:15 12:40:16 12:40:20 12:40:22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 association activities. Do you see that? Page 121 A. Yes. Q. And one thing she mentions is the benzene statistical study. Can you tell me what that is? A. I don't recall what that is. It says it's under API, and I -- I don't recall what -- what that is sitting here now. I haven't seen reference to it in a long time. And I -- I would hesitate to say what -- what that is now. I don't know. It's listed under an API rubric. I just don't know. I don't recall. Q. Okay. And the -- similarly, the API Downstream Gasoline Exposure study? A. It sounds familiar. I can't remember any of that. I don't remember any of that. MS. CLANCY: Oh, thank you. THE WITNESS: I just don't have any need for it. MS. CLANCY: Yeah. Thank you very much. Q. (By Ms. Clancy) OSHA -- do you recall that OSHA issued in the 1970's an emergency temporary standard? A. Yes. Q. Okay. And the API, the American Petroleum Institute filed a lawsuit to ask them to withdraw the emergency temporary standard, correct? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:40:26 12:40:37 12:40:40 12:40:45 12:40:46 12:40:46 12:40:48 12:40:50 12:40:53 12:40:56 12:40:59 12:41:00 12:41:01 12:41:03 12:41:06 12:41:09 12:41:12 12:41:16 12:41:20 12:41:20 12:41:24 12:41:24 12:41:29 12:41:30 12:41:34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. That's correct. Page 122 Q. Okay. And Shell did not oppose the API's filing suit, correct, to withdraw that standard, right? MR. YOUNG: Object to the form of the question. A. It's -- as far as -- well, Shell is part of the API at the time, yes. Q (By Ms. Clancy) Well, in fact, Shell also had grave reservations about the emergency temporary standard and did not want it put through, correct? MR. YOUNG: Object to the form of the question. A. I don't recall what the objections were. And as I indicated in that previous case that we talked about, I don't recall what the details were. Q (By Ms. Clancy) Okay. Well, Shell believed that the guidelines set forth in the emergency temporary standards, trying to lower the benzene exposure levels from 10 part per million to 1 part per million were unreasonable, that they equivocate, are unclear and are not supported by appropriate evidence and violate feasible industrial practice. Wasn't that Shell's position? A. I'd have to see that. You're reading from something, obviously. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:41:35 12:41:36 12:41:38 12:41:57 12:42:01 12:42:05 12:42:08 12:42:10 12:42:10 12:42:10 12:42:11 12:42:15 12:42:17 12:42:18 12:42:21 12:42:24 12:42:26 12:42:27 12:42:28 12:42:31 12:42:34 12:42:35 12:42:41 12:42:44 12:42:47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 123 Q (By Ms. Clancy) Well, I'm reading, actually, from a letter that you wrote to the director of medicine and biological science of the API in September 28, 1976. A. Okay. If that's -- well, actually somebody signed -- signed -- Dr. Joyner signed his name for me on that, so -- but I'll take responsibility for having my name printed there. Q. Okay. A. Yeah. Q. Well, do you disagree with that statement? A. No. It sounds right, if that's the case. Q. Well, isn't that the case, isn't that what it says? A. It says we found that the guidelines, and the guidelines were -- well, there are a lot of guidelines in the thing, but I think this is correct. And I would stand by that. Q. Okay. A. And I think the Court, Supreme Court, also found that to be so when they voided the standard. MS. CLANCY: Object as nonresponsive. Q (By Ms. Clancy) The -- so, Shell, therefore, supported the API's efforts to have the emergency temporary guidelines withdrawn, correct? A. No. The emergency temporary standard Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:42:50 12:42:51 12:42:56 12:42:58 12:42:59 12:42:59 12:43:06 12:43:17 12:43:20 12:43:21 12:43:22 12:43:24 12:43:26 12:43:29 12:43:31 12:43:32 12:43:33 12:43:34 12:43:34 12:43:36 12:43:44 12:43:51 12:43:54 12:43:56 12:43:58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 withdrawn. Page 124 Q. Okay. Shell supported the API's efforts in 1977 to have the emergency temporary standard withdrawn, correct? A. That's correct. Q. Okay. One of the factors that Shell took into consideration, as to the impact of the temporary standards, was the economic impact, correct? MR. YOUNG: Object to the form of the question. A. I'd have to look again and see, but that sounds correct. Q (By Ms. Clancy) I mean, Shell was concerned, weren't they, that -- as to the cost that would arise to Shell if this temporary standard was put in place, was it not? MR. YOUNG: Object to the form of the question. A. I can't say that was the case. I think Shell was concerned as to whether the evidence required the guidelines as such. And the concomitant costs for that requirement that may not have had any basis in fact. Q (By Ms. Clancy) The concomitant costs may not have had any basis in fact? A. Which may not -- yeah. In other words, the Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:43:59 12:44:02 12:44:05 12:44:08 12:44:16 12:44:20 12:44:23 12:44:24 12:44:28 12:44:31 12:44:32 12:44:35 12:44:38 12:44:41 12:44:45 12:44:52 12:44:58 12:45:03 12:45:06 12:45:10 12:45:12 12:45:14 12:45:17 12:45:18 12:45:22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 125 require -- the concomitant costs of the requirements, which may not have had any basis in fact. Q. Well, one of the data points that Shell collected in determining whether or not -- or what the effect would be of the NIOSH recommendation to make the permissible exposure level 1 part per million was the economic impact of the regulations? A. Wait, wait, wait, wait. NIOSH -- NIOSH had nothing to do with the regulations. So, are we on the same page? Q. Well, NIOSH did recommend that the permissible exposure limit be 1 part per million, correct? A. NIOSH. Yeah. NIOSH made recommendations in terms -- what NIOSH's brief was, under the law, was to make -- set up criteria for regulations. OSHA, under the law, was to take those criteria and then together with an economic analysis, then promulgate the -- the regulations. NIOSH was not required to and never did look at economics. They said in the best of all worlds this is where it ought to be. MS. CLANCY: Okay. And I object to the nonresponsive portion of that. Q. (By Ms. Clancy) But I think what you're saying is that NIOSH, based on a safety consideration, said this should be 1 part per million, without consideration Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:45:25 12:45:27 12:45:31 12:45:32 12:45:32 12:45:32 12:45:35 12:45:37 12:45:38 12:45:38 12:45:39 12:45:39 12:45:40 12:45:44 12:45:50 12:45:54 12:45:59 12:46:02 12:46:05 12:46:11 12:46:13 12:46:18 12:46:23 12:46:24 12:46:28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 126 of the economic; is that right? A. No, I don't know what they based it on. Q. Well, you just said best of all possible worlds. And understood -A. I -- yeah, NIOSH could have said zero as well. I don't know what they based it on. NIOSH -Q. Well, you just said they didn't base it on the economic? A. That's right. And I don't know -Q. Well, how do you know -A. I don't know what they based it on. Q. -- if you don't what they based it on? A. Well, I said NIOSH was not required to make a recommendation based on economics. NIOSH, whatever it did and however it wrote, indicated, in terms of permissible exposure levels, 1 part per million. I don't think in '77 they had the evidence that it was appropriate. NIOSH also made recommendations on, I believe, medical surveillance and other surveillance. When we comment on a regulation, we're commenting on what OSHA does, not on what NIOSH does. So, API and Shell in supporting API was talking to OSHA, not to NIOSH. And I'd like to keep those things separate. Q. Okay. Well, Shell did meet to assess the possible activities that may be generated by the NIOSH Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:46:31 12:46:32 12:46:36 12:46:37 12:46:37 12:46:38 12:46:41 12:46:42 12:46:43 12:46:45 12:46:45 12:46:47 12:46:50 12:46:53 12:46:56 12:46:59 12:47:03 12:47:05 12:47:08 12:47:12 12:47:16 12:47:21 12:47:25 12:47:28 12:47:35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 127 recommendation to set a permissible exposure level of 1 PPM for benzene, did they not? A. We -- may I see that? Q. Did they meet or not? MR. YOUNG: Object to the form of the question. Please extend the witness the courtesy to show him the document you're reading from. MS. CLANCY: I'm just asking a question. A. Well, let me see what -- may I see what you're reading from? Q. (By Ms. Clancy) I just find it surprising that if you know I'm reading from a document, you can answer a question; but you can't answer it when I'm just not reading from a document. So, my question is simply, you -- I'm trying to understand your distinction between what NIOSH and OSHA. NIOSH made a recommendation that it be 1 part per million, correct? A. NIOSH made all sorts of recommendations over the years. We react to those recommendations. OSHA makes a -- or promulgates a proposed regulation. And we react to that regulation. Joe Dokes may come out with an article in a peer-reviewed journal. And if it affects us or affects any other company or affects us, we would react to that article. We don't work in a vacuum. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:47:36 12:47:40 12:47:43 12:47:47 12:47:49 12:47:51 12:47:53 12:47:55 12:47:57 12:47:55 12:47:58 12:47:58 12:47:59 12:48:00 12:48:02 12:48:06 12:48:10 12:48:13 12:48:15 12:48:19 12:48:21 12:48:28 12:49:02 12:49:04 12:49:12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 128 Q. Right. And, so, one of the -- Shell got together to assess possible activities that may be generated by the NIOSH recommendation to set a permissible exposure level of 1 part per million, correct? There was a reaction to the NIOSH recommendation? A. There are always reactions to anything that's printed. Q. Okay. A. And this is one reaction. Q. Okay. And -A. Because this wasn't an emergency meeting that was called and said what do we do. Q. And one of the information, the data points that Shell was trying to correct was what's the economic impact of the NIOSH recommendation; is that right? A. I think what they were trying to do was -yeah. One of the points together with -- is the recommendation feasible, is it scientific, can it stand on its own 2 feet scientifically and so on. And economics is also one of them. Q. And, further, one of the issues that OSHA had with the permanent benzene standard proposed -- excuse me. One of the issues that Shell had with the permanent benzene standard proposed by OSHA was the wide business Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:49:14 12:49:16 12:49:21 12:49:23 12:49:24 12:49:24 12:49:24 12:49:24 12:49:24 12:49:26 12:49:27 12:49:29 12:49:34 12:49:35 12:49:40 12:49:41 12:49:42 12:49:43 12:49:43 12:49:53 12:49:57 12:49:59 12:50:01 12:50:05 12:50:10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 129 effects that it would have by nature of the fact that it would apply to benzene streams containing .1 percent benzene or higher? MR. YOUNG: Object to the form of the question. Q. (By Ms. Clancy) Is that correct? MR. YOUNG: Object to the form of the question. A. I don't recall. I'd have to see specifically what they recommend -- what they're referring to. Q (By Ms. Clancy) Okay. I'm looking at a memorandum, dated June 3rd, 1977 to the manager of Safety and Industrial Hygiene Health, Safety and Environment head office, which I guess is a memorandum. A. To me. Q. To you, but it appears -- oh, excuse me, it's from you. A. Okay. Q. It's a memorandum that you wrote. A. Okay. What it says is there, wider business effects in the permanent standard than what were in the temporary standard. Okay. And what's the question? Q. So, one of the issues that you were considering by virtue of the fact that the OSHA permanent standard might be issued in 1977 was the wider business -- Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:50:13 12:50:14 12:50:18 12:50:22 12:50:27 12:50:28 12:50:30 12:50:38 12:50:43 12:50:47 12:50:49 12:50:50 12:50:52 12:50:54 12:50:57 12:50:59 12:51:02 12:51:04 12:51:06 12:51:13 12:51:18 12:51:20 12:51:20 12:53:11 12:53:14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 130 business effect; is that right? A. Well, obviously -- excuse me. Obviously, if there are more stringent requirements, they're going to be more stringent business effects. I don't understand the question. Q. Well, let me clarify that. That one of the things that Shell decided to do is to get an economic impact statement as to what would happen if OSHA indeed promulgated those rights; is that correct? A. Well, if we're going to have to comply, we're going to have to know what we have to do and what's it going to cost, certainly. Q. Right. And, so, one of the criteria that OSHA was considering when it considered what the effects would be of the emergency temporary regs, was the economic impact of those reges; is that correct? A. That OSHA would consider? Q. I mean, excuse me, one of the criteria that Shell was using to consider when it analyzed the proposed regulation in 1977 was the economic impact of those regulations; is that right? A. Sure. Q. Okay. One of the issues that the emergency temporary standard spelled out was requirements for designating benzene areas where 1 percent -- where Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:53:19 12:53:22 12:53:27 12:53:28 12:53:29 12:53:35 12:53:40 12:53:42 12:53:43 12:53:48 12:53:51 12:53:51 12:53:53 12:53:54 12:53:57 12:54:01 12:54:06 12:54:06 12:54:12 12:54:19 12:54:21 12:54:21 12:54:21 12:54:25 12:54:30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 131 liquid streams containing 1 percent by volume of benzene or more are processed; is that correct? A. Sounds right. I don't recall, but could be. Q. Okay. And I'm going to show you the Shell Chemical Benzene Training Manual, which set forth at Deer Park the areas that had been designated as benzene areas. Do you see that? A. Is there a date on this? Let me just see if there's a date on this. Yeah. June of '77. Okay. Q. So, do you see where it talks about those -A. Right. Q. -- quote, unquote, benzene areas? A. Right. Q. Okay. So, for example, the OP-2 unit, the ethyl alcohol, the BEU, the thermal cracking and the hydro-cracker units are included in the benzene areas? A. That's right. Q. Okay. And the BEU unit, the catalytic reforming area and the distilling area are all included in those benzene areas, correct? A. That's right. Q. Okay. A. Except just minor correction. The letter U in BEU means unit. So, that's what -Q. So, all I need to say is BE? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:54:34 12:54:37 12:54:37 12:54:39 12:54:42 12:54:44 12:54:44 12:54:44 12:54:44 12:54:46 12:54:49 12:54:55 12:54:59 12:55:00 12:55:01 12:55:03 12:55:08 12:55:09 12:55:10 12:55:13 12:55:17 12:55:21 12:55:22 12:55:23 12:55:25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 132 A. BE unit or BEU, yes. It's like saying the PIN number. Q. Okay. It's like saying a PIN number? A. PIN, yeah, personal identification number. Q. Oh, I'm guilty of that, too. A. See. Q. Yeah. A. Okay. Q. There it is. Okay. So, my question for you is this: As an industrial hygienist, one of the reasons you would segregate out areas as benzene areas is because you need to know where there might be potential for exposure to benzene; is that right? A. That's correct. Q. Okay. And the thought is that if the processes aren't kept in a closed system in those areas, there may be a potential for exposure, correct? A. Basically, that's correct. Q. Okay. And, so, if there are leaks and spills in those areas or safe work practices aren't followed in those areas, there may be the potential for exposure to benzene, correct? A. That is correct. Q. Okay. Or similarly if there are fugitive emissions from the benzene areas, there could be the Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:55:29 12:55:30 12:55:31 12:55:32 12:55:33 12:55:35 12:55:39 12:55:42 12:55:43 12:55:43 12:55:47 12:55:52 12:55:53 12:55:53 12:55:55 12:56:00 12:56:03 12:56:05 12:56:07 12:56:08 12:56:11 12:56:14 12:56:14 12:56:16 12:56:20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 133 potential for exposure to benzene in the benzene areas, correct? A. Well, depends upon where the emission was. But, basically, correct. Q. Okay. And, so, one of the things that the Shell historic exposure assessment took into consideration was, well, where the person worked if -is that correct? A. That's correct. Q. Okay. So, if they weren't working in a benzene area, then it's pretty -- you make it less likely that they'd be exposed to benzene, correct? A. That's correct. Q. Okay. But for the historic exposure assessment, if you had testimony or work records from that worker that the worker was indeed working in a benzene area, then you would take that into consideration in terms of calculating the possibility that person might be exposed to benzene, correct? A. Well, I think we went through all that. But that's still correct. It hasn't changed since this morning. Q. Okay. Good. Just want to confirm. So -- so, these areas set forth here as benzene areas, given that you did your exposure assessment, I think, what, five Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:56:25 12:56:28 12:56:30 12:56:31 12:56:31 12:56:36 12:56:39 12:56:42 12:56:44 12:56:46 12:56:48 12:56:51 12:56:53 12:56:57 12:56:58 12:57:01 12:57:01 12:57:05 12:57:07 12:57:07 12:57:08 12:57:08 12:57:11 12:57:12 12:57:14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 134 years later? You started it five years later. A. Well, the exposure assessment study was based -Q. Was historical. A. -- was historical. It was based on what had occurred in the 1920's and 1930's. This was contemporaneous. Q. Okay. Well, if you were to conduct the exposure assessment study based on the same principles by which Shell conducted its exposure assessment study, would you say, then, well, we'll look at these benzene areas and interview the people there and see if there was possibility that they were exposed to benzene in those areas; is that correct? A. If we had no data, we would do that. Q. Okay. A. If we had monitoring data, we wouldn't do that type of historic exposure study. Q. Well, I'm saying with no data. A. With no data? Q. Uh-huh. A. Then you have to do the best you can with what you do have. Q. Okay. And which is what the Shell historic exposure assessment does? Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:57:17 12:57:18 12:57:20 12:57:23 12:57:23 12:57:28 12:57:28 12:57:31 12:57:29 12:57:33 12:57:36 12:57:37 12:57:46 12:57:46 12:57:46 12:57:49 12:57:52 12:57:54 12:57:56 12:57:59 12:58:01 12:58:02 12:58:03 12:58:05 12:58:07 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. That's what I said earlier, yes. Page 135 Q. Okay. And, so, to do -- recreate the exposure from saying you have no data as to whether or not a person was exposed while working on one of the benzene areas set forth in the -- A. Yeah. Q. -- benzene training manual -- A. Right. Q. -- you would first say, well, did you work in that area? That would be one of your questions, right? A. That's absolutely reasonable, sure. Q. And then you'd analyze what was their sensory perception in that area and then you'd analyze their hours worked in that area and you'd also talk to other people to determine whether or not, indeed, everybody was kind of observing the same phenomenon? A. And we would look at engineering drawings. We would look at work records. We would look at maintenance records and all the same data that we talked about earlier this morning. Q. Okay. In order to craft an exposure data point for the person; is that correct? A. To try to come up with the best possible estimate we could, yes. Q. Okay. All right. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 12:58:08 12:58:08 12:58:13 12:58:14 12:58:17 01:04:50 01:04:51 01:04:57 01:05:00 01:05:02 01:05:04 01:05:04 01:05:06 01:05:08 01:05:09 01:05:14 01:05:16 01:05:19 01:05:19 01:05:23 01:05:27 01:05:32 01:05:32 01:05:38 01:05:38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 136 MS. CLANCY: I'm going to take a quick break. THE VIDEOGRAPHER: Now going off the record. The time's approximately 12:57. (Recess taken) THE VIDEOGRAPHER: We're now back on the record. The time is approximately 1:04. MS. CLANCY: Plaintiff has stipulated that one objection is good for all. And that applies retroactively to the start of the deposition. Does that work? All right. Q (By Ms. Clancy) Are you still at the same address as set forth on Exhibit 1? A. Yes, I am. Q. Okay. And are you planning any trips out of the Country in May? A. No. Out of the city in May, but not out of the Country. Q. Okay. When will you be out of the city in May? A. Approximately from the 11th through the 20th. If you give me a minute, I can look it up. Q. That would be great. Thank you. A. Okay. Is that enough? Or do you want me -Q. No, I'll wait -- I'll wait for you to look it up. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 01:05:34 01:05:41 01:05:47 01:05:48 01:05:48 01:05:52 01:05:57 01:05:57 01:05:59 01:06:02 01:06:03 01:06:10 01:06:10 01:06:13 01:06:14 01:06:17 01:06:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 137 A. Oh, these Palm pilots are amazing, aren't they? I'll be out from the 14th through the 23rd. Q. Returning to Houston on the 23rd of May? A. Late on the 22nd. So, the 23rd is essentially an out day. I need some mail to catch up on, make sure I don't get bills that are going to go post-due. Q. Okay. A. Yeah. And I have a doctor's appointment on the 3rd. But at that end of the month, I'm free. Q. Okay. MS. CLANCY: Pass the witness. MR. YOUNG: Does anyone have anything? Then we'll reserve ours for the time of trial. THE VIDEOGRAPHER: We're now going off the record. The time is approximately 1:05. We're now ending this deposition. (Proceedings concluded at 1:05 p.m.) Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 138 CHANGES AND SIGNATURE _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 139 I, HOWARD KUSNETZ, have read the foregoing deposition and hereby affix my signature that same is true and correct, except as noted above. _______________________________ HOWARD KUSNETZ THE STATE OF ___________________) COUNTY OF ______________________) Before me, _______________________, on this day personally appeared HOWARD KUSNETZ, known to me or proved to me on the oath of _________________ or through ________________________________ (description of identity card or other document), to be the person whose name is subscribed to the foregoing instrument and acknowledge to me that he/she executed the same of the purpose and consideration therein expressed. Given under my hand and seal of office on this _____ day of _______________________, ______. ________________________ NOTARY PUBLIC IN AND FOR THE STATE OF ___________ My Commission Expires: ________ Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 140 CAUSE NO. A-030272CC ANN STUBBS, Individually and as Representative of the Estate of BEN L. STUBBS, Deceased, Plaintiff, vs. RADIATOR SPECIALTY COMPANY; et al., Defendants. HERBERT W. WILKINSON and PEGGY S. HERBERT, Plaintiff, vs. RADIATOR SPECIALTY COMPANY; et al., Defendants. ) IN THE DISTRICT COURT OF ) ) ) ) ) ) ) ORANGE COUNTY, TEXAS ) ) ) ) ) 128TH JUDICIAL DISTRICT ) ) ) IN THE DISTRICT COURT OF ) ) ) ) ) ORANGE COUNTY, TEXAS ) ) ) ) ) 128TH JUDICIAL DISTRICT REPORTER'S CERTIFICATE ORAL VIDEOTAPED DEPOSITION OF HOWARD KUSNETZ MARCH 3, 2006 I, Anne F. Sitka, Certified Shorthand Reporter in and for the State of Texas, hereby certify to the following: That the witness, HOWARD KUSNETZ, was duly sworn and that the transcript of the deposition is a true record of the testimony given by the witness; Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 141 That the deposition transcript was duly submitted on ___________________ to the witness or to the attorney for the witness for examination, signature, and return to me by ______________________. That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes all parties of record and the amount of time used by each party at the time of the deposition: Ms. Denyse Clancy (02:47) Attorney for Plaintiffs Mr. Brett Young (00:00) Attorney for Shell Chemical, LP and Shell Oil Company Ms. Catherine R. Riegle (00:00) Attorney for Union Carbide Corporation Ms. Stacy Yates (00:00) Attorney for Radiator Specialty Ms. Elizabeth Eve Baker (00:00) Attorney for Exxon, Ethyl, ACC Ms. Susan Price (00:00) Attorney for Atlantic Richfield That a copy of this certificate was served on all parties shown herein on ____________________ and filed with the Clerk. I further certify that I am neither counsel for, related to, nor employed by any of the parties in the action in which this proceeding was taken, and further that I am not financially or otherwise interested in the outcome of this action. Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 142 Further certification requirements pursuant to Rule 203 of the Texas code of Civil Procedure will be complied with after they have occurred. Certified to by me on this _______ day of ___________________, _______. __________________________ Anne F. Sitka, CSR Texas CSR 7079 Expiration: 12/31/2006 Henjum Goucher Reporting Firm No. 69 2501 Oak Lawn Avenue Suite 435 Dallas, Texas 75219 Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e HOWARD KUSNETZ 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 01:06:17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 143 FURTHER CERTIFICATION UNDER TRCP RULE 203 The original deposition was/was not returned to the deposition officer on _______________________. If returned, the attached changes and Signature page(s) contain(s) any changes and the reasons therefor. If returned, the original deposition was delivered to Ms. Clancy, Custodial Attorney. $_______ is the deposition officer's charges to the Plaintiffs for preparing the original deposition and any copies of exhibits; The deposition was delivered in accordance with Rule 203.3, and a copy of this certificate, served on all parties shown herein, was filed with the Clerk. Certified to by me on this ______ day of ______________________, _______. ______________________________ Anne F. Sitka, CSR Texas CSR 7079 Expiration: 12/31/2006 Henjum Goucher Reporting Firm No. 69 2501 Oak Lawn Avenue Suite 435 Dallas, Texas 75219 Henjum Goucher Reporting Services, LP 1-888-656-DEPO 42f663f7-7f85-4b76-b2ba-20e70f52143e