Document LJR6RDba8RvYMLm1vaBZ1JyDb

aware of it yet, correct? A. Correct. Q. So when you say you're notgoing to screen people with a present manifest injury, you might actually have a present manifest injury and you're going to try to pick that upwith this test? A. That is correct. MR. CUNNINGHAM: Thank you. That's all I have. THE COURT: Anything else? MR. PECK: No, sir. THE COURT: Thank you. You can step down. Plaintiffs go ahead and call the next witness. MR. STEWART: We call Dr. Kaley, please. THE COURT: Dr. Kaley, you are still under oath. RICHARD KALEY, having previously been duly sworn, was 7500 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066910 1 examined and testified further as follows; to 2 wit: 3 4 EXAMINATION 5 BY MR. STEWART: 6 Q. Dr. Kaley, you recall being deposed, do 7 you not, on -- I'm looking for the date 8 on this -- I think it was in August, 9 August 21st, 2001? 10 A. I recall being deposed. I don't recall 11 the date specifically. 12 Q. At the law office of Lightfoot, 13 Franklin, and White? 14 A. I believe that's where it was, yes. 15 Q. And Mr. Kelley was there, and I was 16 there deposing you on that date? 17 A. Yes, yes. 18 Q. And that was at a time, certainly, after 19 you all had had your discussions in 20 Washington, was it not, the meeting in 21 Washington sometime in January of 2001? 22 A. Well, if that is when there was a 23 meeting in Washington and I was there, 7501 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066911 1 it would have been after that, yes. 2 Q. Do you remember me asking you about a 3 trip that was made to Washington that 4 was arranged by a gentleman named Glen 5 Ruskin with EPA? 6 A. Well, I'm not sure if that particular 7 meeting had anything to do with arrangements made by Mr. Ruskin or not. 9 Q. I asked you on the date that I mentioned 10 have you been to Washington any time 11 recently with Mr. Ruskin to meet with 12 the people at EPA, and you said you had 13 been to Washington in the company of 14 Glen Ruskin, and we have met with people 15 at EPA. Are you saying now - 16 A. I don't recall specifically. I have 17 been to Washington more than once and 18 met with EPA or other agency people 19 sometimes with Mr. Ruskin, sometimes 20 not. I just don't remember 21 specifically, number one, which meeting 22 you are speaking about and whether 23 Mr. Ruskin had an involvement in that or 7502 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066912 1 not. If I said that at the time, that 2 was my recollection at the time. I just 3 don't know. I don't recall. 4 Q. And do you recall being there at a 5 meeting in Washington where y'all met 6 with some representatives? You 7 indicated at your deposition y'all met with some representatives from EPA at 9 Region Four and a gentleman named 10 Weinischke. 11 A. Yes. And I believe that meeting was not 12 arranged by Mr. Ruskin. If that is the 13 meeting you are speaking about, I 14 believe that had nothing to do with 15 Mr. Ruskin. 16 Q. What was the meeting for, to discuss 17 dealing with an order on consent? 18 A. Yes. 19 Q. Do you recall me asking you what area 20 that would cover at the time? 21 A. I don't recall that specifically. You 22 may very well have. 23 Q. Do you recall me asking you what about 7503 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066913 1 the residential areas and you saying 2 that is dealing with the residential 3 areas which we are dealing with that are 4 covered by EPA or CERCLA? 5 A. Yes. At the time that was the correct 6 response, yes. 7 Q. And do you remember saying in the deposition that if there was any effort 9 made to work out an agreement for 10 dealing with the plant site, that would 11 be done with ADEM because they were 12 regulating the plant site and 13 surrounding areas? 14 I would have probably said something 15 like that at the time in response to 16 that question, yes. 17 Q. And certain other areas under RCRA, 18 dealing with that under RCRA? Isn't 19 that what you said? 20 A. I'm sure it is, yes. 21 Q. That was in fact the case as of August 22 21st, 2001, wasn't it? 23 A. I believe that would have been the case, 7504 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066914 1 yes. 2 Q. And that was the case as of the date you 3 received a draft order, which is 4 Plaintiff's Exhibit 1-18, from EPA, 5 isn't it? 6 A. I don't know which draft you are talking 7 about, so I can't really answer that. 8 Q. It was the draft that was provided to me 9 and to the Court by your attorney, 10 Mr. Cox, just yesterday, and it is -- 11 MR. STEWART: May I approach, 12 Judge? 13 THE COURT: Certainly. 14 Q. -- marked 1-18, and it is -- I assume 15 that is 2002 -- 16 A. 2001. 17 Q. 2001. 18 A. I assume that's correct. 19 MR. COX: I'm sorry. I was just 20 looking over your shoulder, 21 Donald. 22 MR. STEWART: It is the document 23 you gave me. I still have 7505 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066915 1 your little Post-it on it. 2 Q. Now, turn to page eight and I'll get 3 mine and turn to page eight. And when 4 you look at site there, the site that is 5 referred to on page eight of mine means 6 residential, commercial, and public 7 properties, which is, again, still the area, Dr. Kaley, that you were talking 9 about back at the other meeting in 10 Washington with EPA, correct? 11 A. That would be correct, yes. 12 Q. So as of 11-17 of 2002 -- or 2001 - 13 wait just a minute -- 2001, y'all were 14 still talking about the EPA residential 15 properties, not the plant site, not the 16 creeks, as of that date? 17 A. That is what the document is addressing, 18 yes. 19 Q. Well, I'm not necessarily looking now, 20 Dr. Kaley, for the document. But 21 certainly your understanding of that 22 document is what I'm looking for. And 23 what we are talking about in that 7506 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066916 1 document is the site that was going to 2 be governed by this order on consent. 3 You understand that, don't you? 4 A. Yes, I do. 5 Q. And that was the area that EPA had for 6 all intents and purposes historically 7 taken the responsibility for; isn't that correct? 9 A. I don't know what you mean by forever 10 taken responsibility for, but at the 11 time of this draft that was our 12 understanding of the area that EPA had 13 responsibilities for, vis-a-vis the 14 areas ADEM had responsibility for, yes. 15 Q. And on that date -- I'm glad you said 16 what you did. But on that date as a 17 practical matter, ADEM had the 18 responsibility for the plant site, 19 creeks and streams, certain residential 20 areas adjacent to the plant and the 21 tributaries leading a way from the 22 plant, didn't they? 23 A. Generally I would agree with that 7507 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066917 1 characterization, yes. 2 Q. Then we got Plaintiff's Exhibit 1-20, 3 and for the life of me I can't find my 4 copy of this. 5 MR. STEWART: Can I approach 6 again, Judge? 7 THE COURT: Certainly. 8 MR. COX: Judge, I have a copy, if 9 he would like for me to give 10 Dr. Kaley my copy. 11 Q. If you will turn to page seven in that 12 one, it talks about site in that one, 13 and this is something you all forwarded 14 to them on January 22nd of 2002 -- well, 15 not you, but Allen J. Topol, who is an 16 attorney representing your company. And 17 he sent it to Bill Weinischke and Dustin 18 F. Minor, and it is styled "Dear Bill 19 and Dustin." We turn to page seven of 20 that document and you talk about site 21 then. And then you are talking about 22 broadening things just a tad, aren't 23 you? 7508 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066918 1 A. Well, I don't know that we are 2 broadening things. We are attempting in 3 this exchange of drafts to clarify which 4 areas were under which regulatory 5 responsibility, yes. 6 Q. We are? Who is we, Dr. Kaley? 7 A. The agencies that are involved and Solutia. 9 Q. Well, now, y'all have had a series of 10 meetings after you had this initial 11 meeting in Washington, and the people 12 that were meeting, Dr. Kaley, were 13 perhaps you, Craig Branchfield, some 14 representatives from Region Four either 15 in Atlanta or some offices up in the 16 Justice Department. There weren't any 17 ADEM people meeting, were there? 18 A. I don't recall them specifically at the 19 meeting, no. 20 Q. So when you talk about agencies, you 21 really mean one agency, and that is EPA. 22 Now, whose idea - 23 No. I would say it was my understanding 7509 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066919 1 that EPA and ADEM were in communication 2 during this entire period. 3 Q. They weren't at your meeting, though, 4 were they? 5 A. They weren't at the meeting, but my 6 understanding is they were in 7 communication. 8 Q. Then there were some creeks added in. 9 Snow Creek from the confluence of the 10 Eleventh Street ditch where it crosses 11 Interstate 20, right? 12 A. Yes. 13 Q. And then all land and structures and 14 other appurtenances and improvements on 15 the land owned as of this date of this 16 consent decree by Solutia. But then it 17 says "exclusive of the operating 18 facility," right? 19 A. Yes, that's what it says. 20 Q. What did that include? That operating 21 facility would not include the landfills 22 or the plant site, would it? 23 I'm sorry? 7510 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066920 1 Q. The operating facility would not include 2 the landfills and plant site, would it? 3 A. Yes, it certainly would. 4 Q. The operating facility would include the 5 plant site and the landfills? 6 A. Yes. 7 Q. So you took that out? 8 A. Well, we didn't take it out. It was 9 part of ongoing negotiations. 10 Q. Now, the trial had started as of this 11 time, this trial? 12 A. Yes. 13 Q. Been underway for a while. Had y'all 14 discussed the trial in any of those - 15 any of those meetings? 16 A. Other than the fact it was going on, no. 17 I mean, everyone was aware obviously 18 that the trial was going on. 19 Is it your testimony as you sit here 20 today, Dr. Kaley, that there have been 21 no discussions about injunctive relief 22 and the injunctive relief phase of this 23 case as of the time y'all got this draft 7511 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066921 1 which was 5-20 -- or sent this draft 2 which is dated January 22nd, 2002? 3 A. I don't know that injunctive relief was 4 not mentioned at one point or another. 5 It certainly has always been a part of 6 this case. I don't recall any specific 7 discussions about it. 8 Well, y'all started discussing it, then, 9 after that letter was written on January 10 22nd? 11 A. I'm sorry? We had had discussions with 12 EPA for a year and a half. 13 Q. You started discussions about the 14 injunctive relief phase of this trial 15 after y'all sent this letter of January 16 22nd, 2002, didn't you? 17 A. The injunctive phase of this trial had 18 been discussed and the fact that it may 19 or may not occurred during the entire 20 time of that negotiation. 21 Q. What I'm talking about, Dr. Kaley, was 22 in fact y'all had increased discussions 23 about the injunctive relief phase of 7512 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066922 1 this case in the three meetings 2 Mr. Branchfield testified that took 3 place within the last month, didn't you? 4 A. I don't recall any increased intensity 5 in those discussions, no. 6 Q. Isn't it a fact y'all had three meetings 7 in the last month with the folks at EPA? A. I believe there have three, yes. 9 Q. And you attended the meetings, didn't 10 you? 11 A. I attended two of them. 12 Q. Where did those meetings take place? 13 A. In Atlanta. 14 Q. And was Mr. Weinischke down there trying 15 to work something out with y'all 16 sometime in the past couple of weeks 17 about this order on consent? 18 A. Mr. Weinischke has been involved in all 19 these ongoing discussions in attempt to 20 reach agreement with the agencies on 21 this order on consent. Yes, 22 Mr. Weinischke has been involved. 23 Q. With the agencies? 7513 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066923 1 A. Yes. 2 Q. How many of those meetings that you 3 attended in Atlanta did ADEM attend? 4 A. One. 5 Q. Just one? 6 A. Just one. 7 Q. That was the one that lasted, according to Mr. Branchfield, about two or three 9 hours? 10 A. It was the better part of a morning as I 11 recall, yes. 12 Q. There is a charge in this site -- Take a 13 look at page seven of Exhibit 1-21 -- We 14 have it up here. Y'all supposedly got 15 this one at noon, and there is another 16 one -- We will talk about this one. 17 There is something added to that. And 18 that is this site includes -- well, you 19 took something out and added. This site 20 includes but is not limited to the area 21 covered by the RCRA permit. Who added 22 that language? Who suggested that it be 23 added? 7514 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066924 1 A. I don't recall specifically. I mean, I 2 have not been in the language adding and 3 taking out phases of the discussion. I 4 don't know specifically who added or 5 took out that language. I mean, it is 6 consistent. 7 Q. Did some lawyer recommend it? 8 A. Pardon? 9 Q. Did some lawyer recommend it? 10 A. I don't know who recommended it. 11 Q. Well, there were people there 12 representing you, weren' t there? 13 A. Yes. 14 Q. Who was that? 15 A. Mr. Topol was there. 16 Q. Mr. Topol, is that right ? 17 A. Mr. Topol was attending the meetings, 18 yes. 19 Q. Now, this is a document that y'all got 20 apparently a draft of on 3-13 of 2002, 21 wasn't it? 22 A. I'11 take your word for that. I mean, 23 that is what it says. 7515 2002 03 15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066925 1 I was told that by - 2 MR. COX: We will stipulate to 3 that, Your Honor. 4 Q. -- Mr. Cox. You don't recall who from 5 your side recommended that? 6 A. I don't know that anybody from our side 7 recommended it. It may have been somebody from EPA, may have been 9 somebody from ADEM. I don't know who 10 recommended that particular language. 11 Q. Who was it from EPA that told -- Strike 12 that. 13 Who told the EPA folks that 14 Mr. Cobb had testified and the substance 15 of his testimony from that witness stand 16 that you are sitting in right there? 17 A. Who told the EPA folks that? 18 Q. Yeah. Who shared with the EPA people 19 what Mr. Cobb testified about ADEM's 20 regulatory authority in this courtroom 21 when we were talking about injunctive 22 relief before y'all got this draft 23 document? 7516 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066926 1 A. I'll cut to your question about who 2 spoke about Mr. Cobb's testimony with 3 EPA. The rest of it I'm not sure I got. 4 But the answer to that is I don't know 5 if anyone did or, if they did, who did. 6 Q. Is it your testimony here today, 7 Dr. Kaley, that there was no discussion between Solutia and EPA, you being one 9 of the parties or participants in that 10 particular negotiation, about the fact 11 that Mr. Cobb and them felt they had the 12 regulatory authority at ADEM to govern 13 the plant site and also the creeks 14 leading away from that plant site and 15 the creeks and streams going down to 16 Lake Logan Martin, including Snow and 17 Choccolocco Creek? 18 A. I'm sorry. Are you asking me whether I 19 was aware that that testimony by 20 Mr. Cobb was transmitted to EPA after 21 his testimony? I was not aware of that. 22 Am I aware that has been in the past a 23 position consistent with ADEM's view of 7517 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066927 1 their responsibility under the RCRA 2 permit, I believe that is consistent 3 with that, yes. 4 Q. Did y'all try to get EPA to get ADEM to 5 sign on to a memorandum indicating y'all 6 were going to go over to federal court 7 and try to get an order on consent spread over the record of the district 9 court? Did y'all try to get them to do 10 that? 11 A. At EPA and ADEM we felt -- and I believe 12 the agency felt, EPA felt it would be 13 advantageous to have ADEM as a signatory 14 to the consent decree which we were 15 negotiating with the agency. 16 Q. When exactly did y'all decide you needed 17 to get ADEM involved? 18 A. I don't recall when that was. 19 Q. Didn't y'all go to try to see them 20 Friday after the testimony ended up over 21 here last week? 22 A. Not that I'm aware of. 23 Q. You are not aware there was some effort 7518 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066928 1 by EPA to get ADEM to sign on to that 2 sometime last week? 3 A. Not that I'm aware of. 4 Q. Tell me if you would, Dr. Kaley, why EPA 5 told y'all they felt like it would be 6 important to have ADEM sign on? Isn't 7 it a fact that that was done because 8 ADEM had been seen as the agency that 9 has the authority to regulate the RCRA 10 plant site? 11 MR. COX: Objection to what EPA 12 felt or what EPA believed. 13 If he has an understanding, I 14 believe he can testify to it. 15 Q. What did they express to you? Why did 16 they say to you, they felt like it would 17 be advantageous? You just got through 18 saying they felt like it was. What did 19 they say the reason for that was, 20 Dr. Kaley? 21 A. I'm sorry, Mr. Stewart. You have lost 22 me in your speech. I'm sorry. Would 23 you please repeat your question? 7519 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066929 1 Q. You just indicated a minute ago that EPA 2 felt like it would be advantageous to 3 have the signature of ADEM's 4 representative on this consent order. 5 What did they tell you about why they 6 felt it would be advantageous - 7 A. I don't recall what they said. I think we also felt it would be advantageous to 9 have ADEM for the very reason you said, 10 that we are trying to negotiate a 11 consent decree which will regulate the 12 further investigation and remediation of 13 the site under both agencies, whatever 14 RCRA was responsible for with ADEM and 15 whatever CERCLA was responsibility for 16 under EPA. Certainly I can't speak to 17 what EPA felt, but I think we believed 18 and believe that it would be better if 19 all the investigation and remediation of 20 this site were dealt with under a single 21 consent decree. 22 Q. Isn't it a fact, Dr. Kaley, that what 23 y'all were trying to do is just avoid 7520 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066930 1 the jurisdiction of this court? Isn't 2 that a fact? 3 A. I have no idea that that would be true, 4 no. 5 Q. Is it your testimony here today that Mr. 6 Weinischke didn't tell you that is what 7 would happen if y'all signed that? A. That would be my testimony, yes. 9 Q. He hasn't stated that to anybody? 10 A. Not that I'm aware of. 11 Q. Has Dustin Minor ever said that to you, 12 that he felt like this Court didn't have 13 the authority or capability to 14 circumvent anything that EPA was doing 15 if y'all went running over there to 16 federal court and signed this order on 17 consent and got it spread on the record? 18 A. Is there a question in there? 19 Q. I'm asking you if he ever told you that. 20 A. No, he never told me that. 21 Q. Well, y'all didn't have a suit filed 22 against you by EPA, have you? 23 A. I think we have been put on notice under 7521 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066931 1 a CERCLA decree that -- I don't know 2 that we have had a suit filed. I know 3 we have been put on notice. We have 4 responsibilities under CERCLA. 5 Q. Y'all do not have a pending matter of 6 litigation, do you? 7 A. Not that I'm aware of. 8 Q. They haven't sued you, have they? 9 A. Not that I'm aware of. 10 Q. Never have fined you, have they? 11 A. No, they have not fined us. 12 Q. Who is Linda Fisher? 13 A. Linda Fisher is at this point an 14 administrator in the Environmental 15 Protection Agency. 16 Q. Who did she used to work for? 17 A. She used to work for Monsanto Company. 18 Q. How long did she work for Monsanto 19 before she became a -- What does she do 20 now? 21 She is one of the assistant 22 administrators. I don't know 23 specifically what her title is. 7522 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066932 1 Q. To Christie Todd Whitman? 2 A. To Administrator Whitman, yes. 3 Q. How long did she work for you all? 4 A. I don't know. Five or six years I would 5 guess. I don't recall. 6 Q. I thought you said eight at your 7 deposition, that she left EPA where she 8 worked previously when the 9 administrations changed and during the 10 Clinton administration she worked for 11 y'all up there, didn't she? 12 A. During some of that time she worked for 13 Monsanto Company, yes. 14 Q. Worked for Monsanto Company as a 15 lobbyist? 16 A. I'm not sure what her responsibilities 17 were. 18 Q. She was in Washington, wasn't she? 19 A. She was in Washington. 20 Q. When the administration changed last 21 year, she went back to work for EPA? 22 A. She was asked to join EPA by 23 Administrator Whitman. 7523 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066933 1 What part did she play in getting old 2 Bill -- to enter into this order on 3 consent with you? 4 A. None whatsoever. 5 Q. Did she encourage you to do that? 6 A. None whatsoever. 7 Q. Help you arrange a meeting up there? 8 A. I doubt she even knows about it. 9 Q. Who is it that picked -- By the way, 10 what are y'all penalized generally if 11 you fail or violate an order of the EPA? 12 Can't they fine y'all up to $25,000 a 13 day? 14 A. I don't know what the specifics are. 15 I'm sure they have the ability to fine 16 us if we violate a specific order, yes. 17 I don't know what the provisions are. 18 Q. Well, y'all have got some real stiff 19 penalties in this last draft, don't you? 20 A. I don't recall what the numbers are. 21 There is a section that deals with 22 penalties, yes. 23 Take a look at page ten. 7524 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066934 1 A. Are you talking at 3-13, 1-21? 2 Q. Yes. Page ten, y'all's stipulated 3 penalties. 4 A. All right. 5 Q. And tell us if you would what the 6 violations are if you violate and don't 7 comply for the first through the 8 fourteenth day. 9 A. $750 a day. 10 Q. And what is the penalty if you don't 11 comply the fifteenth through the 12 thirtieth day? 13 A. $2,000 . 14 Q. And the thirty-first day and beyond? 15 A. $5,000 . 16 Q. That's certainly a good bit less, is it 17 not, than $27,500 a day, isn't it, 18 Dr. Kaley? 19 A. Certainly smaller numbers, yes. 20 Q. Aren't you aware of the fact that some 21 of the people who have had their 22 property polluted by Monsanto with 23 threatened of being fined by EPA of 7525 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066935 1 $27,500 a day? 2 A. No, I wasn't aware of that. 3 Q. And old Bill had that letter sent out to 4 those people, Bill Weinischke, the 5 gentleman y'all met with up there in the 6 Justice Department? 7 A. I assume you are talking about letters with regard to Solutia access to 9 properties of your clients either for 10 sampling or cleanup. And I don't know 11 whether Mr. Weinischke was involved in 12 that or not. I thought that was EPA. 13 May have been Department of Justice. I 14 don't know. 15 Q. Let me ask you this much: Who was it 16 that suggested that y'all not have to 17 put up any kind of typical assurance or 18 bond or whatever you call it? Who 19 suggested that? 20 A. I don't know the specifics of that. 21 Q. Didn't y'all suggest that? 22 A. I believe -- Again, I'm treading on 23 ground I really have very little 7526 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066936 1 knowledge of. But I believe that we 2 suggested or told the agency that in 3 other situations the viability of the 4 company was such that those guarantees 5 were not required in consent orders of 6 this type. But as I said, I'm way 7 beyond what I really know. 8 Q. Isn't it a fact that your financial 9 liability as far as a company was a 10 little different at that point than it 11 is today? 12 A. I don't believe that's true, no. 13 MR. COX: Objection, relevance and 14 foundation. 15 THE COURT: Overruled. 16 A. I don't believe that is true, no. 17 Q. Haven't y'all lost value of stock since 18 this case started? 19 MR. COX: Same objection. 20 THE COURT: Overruled. 21 A. Yes. 22 Q. What is your cap? Y'all are worth about 23 six hundred and something million 7527 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066937 1 dollars today? 2 MR. COX: Same objection, Your 3 Honor. 4 THE COURT: Overruled. 5 A. I have no idea. 6 Q. If y'all had to pay out a billion 7 dollars, Solutia couldn't do it, could they? 9 A. I don't know. 10 Q. You don't know if Solutia could? 11 A. That's correct. 12 Q. Aren't y'all presently paying out about 13 thirty million dollars a year based on 14 what Mr. Hunter and Mr. Barnacle and 15 Mr. Clausen said in a recorded statement 16 that they made, all these analysts, when 17 this case first started on January 7th 18 or 8th? 19 MR. COX: Objection. He is asking 20 him to comment on hearsay, 21 and lack of foundation. 22 THE COURT: Overruled. 23 A. I believe that thirty million dollars is 7528 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066938 1 a reflection of our budgeted -- expected 2 budgeted cost for remediation over some 3 time period, basically based on previous 4 costs. 5 Q. But isn't that what he said y'all had 6 the financial capability to pay? 7 A. I don't believe that is true, no. I believe he said those were our budgeted 9 costs. 10 Q. So you have the capability as you sit 11 here today, if this Court would order 12 you to spend about a billion dollars 13 over here to clean up this plant site, 14 at Solutia to pay that? 15 MR. COX: Objection, speculation, 16 foundation. 17 THE COURT: Overruled. 18 A. I have no idea. 19 Q. Who would? 20 A. Mr. Hunter. 21 Q. Mr. Hunter would know about that? 22 A. Yes. 23 Q. Would Mr. Clausen know about that? 7529 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066939 1 A. I believe he should. 2 Q. Those are two people who would be aware 3 of what y'all's capabilities were? 4 A. Yes. 5 Q. Now, did y'all ever have, you, 6 Mr. Branchfield, any of those gentlemen 7 I just mentioned, ever have any discussions with Linda Fisher, after she 9 took her position, about the Anniston 10 plant site? 11 A. I certainly did not. I can't speak to 12 whether anybody else has or not. 13 Q. There is a possibility they have, then? 14 MR. COX: Objection, speculation. 15 THE COURT: Overruled. 16 Anything is possible. I know of no 17 circumstances under which that would 18 have occurred, but I'm certainly not 19 aware of any. And there certainly were 20 none by me. 21 Q. None by you? 22 A. Nor am I aware of any by any of the 23 other people you mentioned. 7530 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066940 Q. What about Glen Ruskin? A. I don't know. Q. Isn't it a fact that Glen would be the one meeting with her since she serves as y'all's Washington public relations person? A. I don't know MR. STEWART: Judge, I believe I'm at a stopping point. I can start with some other things depending on how long you want to go. THE COURT: Are y'all going to save him? MR. COX: We were going to ask him some questions. We were planning on doing that now. If it would be possible to save Dr. Kaley a trip, if we could finish him up today. THE COURT: I really kind of needed to be out of here by five. 7531 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066941 1 MR. STEWART: I'm going into some 2 taped conversations and get 3 him to identify those. They 4 will take about forty-five 5 minutes each to play. 6 MR. COX: That is not going to 7 happen, obviously. This 8 doesn't need to be on the 9 record. 10 (Discussion held off record.) 11 MR. MONK: We brought up my 12 potential conflict of 13 interest, and these guys have 14 provided me with a waiver of 15 conflict, which the Court 16 asked for. I need it on the 17 record. It does say that - 18 it is from Jere White - 19 saying in accordance with our 20 conversation the defendants 21 have no objection to me 22 representing the City of 23 Anniston. 7532 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066942 1 I just want to document 2 in the record what our 3 conversation was in that 4 regard. I don't want that to 5 be left hanging or have any 6 dispute about our 7 conversation. 8 After I made my 9 potential conflict aware in 10 open court, Jere and I had a 11 discussion on that date. 12 Were you here? 13 MR. PECK: No. 14 MR. COX: I wasn't. 15 MR. MONK: I don't remember who 16 was, but I want it on the 17 record and I would like this 18 to be confirmed. He simply 19 asked me if I had any 20 specific knowledge of the 21 case from the period it was 22 filed until Mr. Fite 23 physically removed himself 7533 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066943 1 and Mr. Miller from my law 2 firm, which would have been 3 June of 1999. 4 And I told him no. 5 Certainly I had general 6 information regarding the 7 case. I think Buddy and a 8 lot of these defense lawyers 9 were in and out of our office 10 during that period of time. 11 But I know I didn't have any 12 specific discussions with you 13 regarding the details of the 14 case. 15 MR. COX: No. And probably the 16 conversations we had you 17 don't want on the record. 18 MR. MONK: But they weren't about 19 the case. 20 MR. COX: Not about the case. 21 MR. MONK: I will represent that 22 neither did I have any 23 specific conversations with 7534 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066944 1 Mr. Fite about the details of 2 the defense strategy or any 3 information in the case. 4 If I talked to him 5 about it, it was purely on a 6 level of what's going on, you 7 know, procedurally what is 8 happening in the case. That 9 was it. 10 I may not have gotten 11 that much in detail with 12 Mr. White, but that is the 13 limit of our information, and 14 Mr. Fite was quite diligent 15 in not sharing any 16 information regarding 17 Monsanto's information, their 18 strategies, tactics, or 19 anything such as that with 20 any member of the firm that I 21 knew of up there and 22 certainly not with me. 23 THE COURT: I guess to that 7535 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066945 1 extent, exactly how much was 2 communicated to Mr. Fite to 3 begin with? That might have 4 been limited. 5 MR. COX: How much was 6 communicated, or how much did 7 he remember? 8 MR. PECK: Or receive? 9 THE COURT: We won't go any 10 further. 11 MR. MONK: I will simply say this: 12 I don't want my participation 13 to be a problem in this case. 14 MR. COX: And we have agreed it is 15 not. 16 MR. MONK: I don't want it to be a 17 problem with my insurance 18 company either. 19 THE COURT: All right. I'll see 20 you in Gadsden at eight 21 o'clock Monday morning. 22 (Court adjourned at 4:10 p.m.) 23 7536 2002_03_15 Trial Transcript in ABERNATHY Page 07459 WATER PCB-SD0000066946