Document N2G0OZwYdK06R3Mnrm5LMjwdg

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST* CLAIR COUNTY 3 FRENCES E. KEMNER, et. al., 4 Plaintiffs, 5 VS. 6 MONSANTO COMPANY, 7 Defendant. ) ) ) ) ) NO. 80-L-970 ) ) ) ) 8 9 10 REPORT OF PROCEEDINGS 11 Before the HON. RICHARD P. GOLDENHERSH 12 JURY TRIAL 13 April 12, 1985 14 15 16 APPEARANCES: 17 Mr. Rex Carr & Mr. Jerome Seigfreid 18 On Behalf of the Plaintiffs; 19 Mr. John R. Musgrave Mr. Joseph Nassif On Behalf of the Defendant. 20 21 22 23 24 Agnes C. Hackmann, CSR, RPR Official Court Reporter I INDEX 2 WITNESS 3 PEOCION PARK Examination (Cont'd.) by Mr Carr 4 5 6 7 EXHIBITS 8 Plaintiff's Exhibit No 1292 Plaintiff's Exhibit No. 1293 9 Plaintiff's Exhibit No. 1294 Plaintiff's Exhibit No. 1295 10 Plaintiff's Exhibit No. 1296 11 Plaintiff's Exhibit No. 1297 12 13 14 15 16 17 18 19 IDENTIFIED 29 65 106 121 143 149 20 21 22 23 24 PAGE 2 ADMITTED 30 66 107 122 144 150 2 ) 1 BE IT REMEMBERED AMD CERTIFIED THAT heretobefore, 2 on to wit: Friday, April 12, 1985, being one of the regular 3 judicial days of this Court, the matter as hereinbefore set 4 forth came on for hearing before the HONORABLE RICHARD P. S GOLDENHERSH, Circuit Judge in and for the Twentieth Judicial 6 Circuit, St. Clair County, Illinois, and the following was 7 had of record, to wit: 8 PHOCION PARK, 9 resumed the stand, having previously been duly sworn, and 10 testified: 11 EXAMINATION (Cont'd.) 12 BY MR. CARR: 13 Q Mr. Park, we were at the close of the day discussing 14 the meeting that you had on May 11, May 22 In which you were IS determining whether or not the EPA should be notified as to 16 any possible toxic substances that might be In your 2,4 17 dlchlorophenol and with regard to that, if you would refer to 18 Plaintiff's Exhibit -- do you have those Plaintiff's Exhibits 19 up there? 20 A No, I don't. I have none here now. 21 Q 1 need to dig them out then. There is 1288 which we 22 will be working with and 1275, 1290. I think that Is possibly 23 all. And we were discussing the Exhibit 1290, which for the 24 jury they are not numbered. It has got the four names and the 3 initials of Jim Wilson in the upper righthand corner* In about; 1 2 the middle of the page there is a statement, is there not, 3 "2,3,7 trichlorodibenso dioxin nearly as bad as 2,3,7,8 tetra?" 4 Do you see that, sir? 5 A I see that handwritten, yes* 6 Q And you understand 2,3,7 trichlorodibenzo dioxin to 7 be that dioxin which has three chlorine molecules attached to 8 the dioxin* Do you not, sir? 9 A I do believe I understand that, yes* 10 Q And the statement is comparing the toxicity of the 11 tridioxin to the 2,3,7,8 tetradloxln Is he not, sir? 12 A He appears to be. I guess. 13 Q And whoever writing this, Dr. Wilson or whoever vis 14 doing this writing is certainly writing something down that 15 would be important for you all to know if you determine or 16 making a determination as to whether or not the 2,4 dlchloro17 phenol might be safe. Isn't that correct, sir? 18 A That Is a conclusion that was In the mind of the 19 author, Mr. Carr. This is not my notes. 20 Q Could you answer my question, please, sir? 21 A I don't know. 22 Q Do you not consider that If your product contains 23 trlchlorophenol, that Is what would be In this column described 24 as GL3, if your product contains that, that would be along with 4 1 tetra 2,3,7,8 that la something that would be of concern, 2 wouldn't It, sir? 3 A That would be up to a toxicologist. 4 Q Excuse me. You are serving on that committee and you 5 are considering those and we went through this. You wrote the 6 memos. You considered toxicity, did you not, at that time, 7 sir? 8 A I serve on the committee for the purpose of interpre 9 ting the law to which we are subject. X am not a toxicologist JO and never pretend to be. We have toxicologists that do-serve 11 with that committee or support the committee. 12 Q Mr. Park, when you sit on that committee do you con 13 sider whether or not these products are substantial risks to 14 those people that use them, are exposed to them? IS A We certainly consider the question of whether a given 16 product would present a substantial risk of injury to health 17 or environment. 18 Q And is it Important to you to know what toxic sub 19 stances, when you are serving on that committee, are in that 20 product? 21 A That would certainly be -- the toxicity of the product? 22 Q la that Important to you to know what the toxic.sub 23 stances are in your product, Mr. Park? 24 A The important thing is the toxicity of the product we 5 1 art dealing with. 2 Q Could you answer that question that I asked you? 3 MR* MUSGRAVE: Object* He has, Tour Honor* He aske< 4 him whether toxicity was important and he explained that 5 toxicity was Important. 6 THE COURT: Overruled. Walt a second, Mr. Park* 7 I don't believe he has answered the question. Objection is 8 overruled* 9 A (By the Witness) What is important is the toxicity 10 of the product* 11 Q (By Mr* Carr) Could you answer the question that 1 12 posed to you? The Court has Instructed you to answer. 13 A I thought I had answered the question* 14 Q I know you thought that, Mr* Park, but you haven't. 15 The Court has ordered you to answer that question* Tour 16 counsel objected saying that you had answered. The Court over 17 ruled the objection* I know you understand that to mean that 18 your counsel is wrong In the Judgment of the Court and that you 19 mast answer the question as I gave it to you* Would you please 20 do 80? 21 A X will do my best to answer your question, Mr* Carr. 22 What is important to the committee is the toxicity of the pro* 23 duct in question. 24 MR* CARR: Tour Honor, would you direct the witness 6 1 to answer the question. 2 THE COURT: Okay. Mr. Park, that Is the answer that 3 I said was not responsive to the question. How, I will allow 4 the Court Reporter to read the question back once and answer 5 that question, please. 6 ' (Question read.) 7 A (By the Witness) I am having difficulty because of 8 the constraints you have placed on my answer. You won't allow 9 me to give the answer X feel is appropriate. I guess I would 10 have to answer that that is less important than the toxicity 11 of the entire product under concern Including whatever con 12 stituents it may contain. 13 Q (By Mr. Carr) Is it important that you know what toxic 14 substances- are in your product when you attempt to make a 15 determination as to whether or not your product is in fact 16 toxic and whether or not it imposes a substantial risk to the 17 public and whether or not you should notify the EPA that your 18 product contains toxic substances? 19 A When our product contains toxic substances at a suffi 20 ciently high concentration that they inpact the toxicity of the 21 product itself, then it is important to know that. 22 Q And then it is important to know whether or not what 23 levels of the tridloxin is in the product, is it not, sir? 24 A You are asking me to speak now to toxicity -- 7 1 Q Yes, I am, Mr. Park. 2 A -- of a substance that X an not familiar with. 3 Q Please answer that question. 4 A X don't know. 5 Q You don't know whether it is lsportant? 6 A It depends on the toxicity of the tri. 7 Q That Is correct. X certainly agree with you one 8 hundred per cent. Xt does depend on the toxicity of the tri* 9 chlorcphenol dioxin doesn't it, sir? 10 A Yes. 11 Q And In exercising your judgment In deciding whether 12 or not you should notify the EPAt is it Important to you to 13 know whether or not these dioxins listed here from the mono 14 to the octa are toxic and the extent of their toxicity. Isn't 15 that correct, sir? 16 A And the concentration. 17 Q And the concentration to be sure. Those things are IS important, aren't they, sir? 19 A If they are toxic, yes. 20 Q Yes. That is what I said. X posed it is important 21 to know whether or not these things are toxic. Isn't that 22 correct, sir? That is what I have been asking you for the 23 last five minutes. 24 A X thought you were asking me If the tri was toxic or 8 not and I just have to say -I Q Now, Hr. Park, you know good and veil I didn't ask you 2 3 that. What I asked you was whether or not it Is Important 4 that you should know whether or not trlchloredibenzo-p*dioxin 5 is toxic. That Is all I asked. X didn't ask you whether or not It was toxic, did 1/ sir? I Just asked you whether or 6 7 not it is important that you in functioning on this committee 8 should know whether or not the substances that go into your 9 product and go out in the public, whether or not they are toxic. 10 That is what I have asked you. 11 A Irhave got .to respond that it is important that I know 12 what our toxicologists tell me is important. 13 Q And what he tells you is important is the toxicity of 14 the substances that go into your product. Isn't that correct? 15 A If he considers that to be sufficiently toxic and of 16 a sufficiently high concentration that it affects the toxicity 17 of the product in a significant degree, then he may consider 18 that so important that he should make it known. 19 Q And on your committee you understand that to be his 20 function, don't you, sir? Isn't that correct, sir? 21 A The function of the medical department representative 22 is to bring toxicity information to us. 23 Q Surely. You cannot function without that being done. 24 If you are sitting on that committee in determining whether or 9 I not to notify tho EPA, you hove to know whether or not the 2 substances that go Into your product are toxic. Don't you, 3 sir? 4 A What is considered important to the toxicologist -- 5 X think you are asking me to state what is considered important 6 to our toxicologist and I am just not in a position to do that. 7 Q That is not what X am asking you, Hr. Park. You are 8 serving -- Your Honor, is it necessary that X reestablish 9 everything that X established yesterday with this witness? 10 Mr. Park, assume, if you would, that yesterday you responded 11 to similar questions that It is important in the functioning 12 of your duty as a member of this committee that you know and 13 be advised as to the toxicity of the substances that go into 14 your product and that we discussed that at some length lncludln 15 the toxicity of 2,3,7,8 and including the effect of 2,3,7,8 16 upon the systems of man and you responded as to whet you knew 17 about it. Assume that we did all these things and let's not 18 spar anymore on whether or not you need to know the toxicity 19 of the substances in exercising your functions. Would you 20 direct the witness, Your Honor, to assume that we established 21 those yesterday? 22 THE COURT: You are to assume that, Mr. Park. You 23 may continue, Mr. Carr. 24 Q (By Mr, Carr) How, Mr. Park, when you sat at the 10 meeting on May 11 and May 22, did your toxicologist discuss 1 with you the fact as it is written on this piece of paper that 2 3 2.3.7 trichlorodibenzo-p-dioxin is nearly as bad as 2,3,7,8 4 tetra? 5 A I cannot remember that at all* Q All right. Did he discuss with you whether or not the 6 7 octa dioxin is toxic? A Mr. Carr, this seating was five years ago. I cannot 8 9 remember the specific discussion. 10 Q 1 understand that and if you can't remember, singly 11 say you don't remember. 12 A That is why we record it in the minutes so we will 13 have a record. 14 Q You didn't record in your minutes though anything as 15 to -- and these, of course, are notes of Individual members. 16 They are not your minutes. They are not recorded there a n y 17 thing except the toxicity of 2,3,7,8 and the toxicity of 18 2.3.7 dioxin. Isn't that correct, sir? I 'm sorry. There is 19 another notation that 2,7 dichloro, that would be the one with 20 the two chlorine atoms, is much less toxic, but still and that 21 Is blank and monochloro is practically non*toxic. 22 MR. MUSGRAVE: Are you reading from the notes or the 23 minutes, Mr. Carr? 24 MR. CARR; From the notes, 1290. 11 1 MR. MtlSGRAVE: Just so you got It clear* 2 Q (By Mr* Carr) And he Is discussing, this note, 1290, 3 Is discussing, when he says mono he says GL1. You understand 4 that, don't you, sir? Let me give you 1135 so you don't need 5 to strain your eyes* How, you can look at that and this is 6 just illustrative of table 3 that is on here now. He is dis 7 cussing, when this note refers to monochloro he is talking 8 about that which is in the first column, CLl is he not, sir? 9 A (By the Witness) I really don't know. I don't know 10 who authored these notes. I don't know what he is referring 11 to. * 12 Q Mr. Park, I didn't ask you that. These notes are 13 obviously Jim Wilson's notes* X don't care whether you know 14 the author. It la sufficient that it is one of the five people IS that attended that meeting and you said it is not yours and 16 the note refers to -- it tells about what Callis would recosmen 17 that you disclose the 2,4,6. content to Fallek-Lancro "Corey 18 agreed. Park generally agreed, but said it should be low-key." 19 Corey recommended something else. So, there are four people 20 identified by the author of this document. Four of the five 21 people is discussed. The only person not discussed is Jim 22 Wilson who I am representing to you is the author of this 23 document. But it is not material. What is important is the 24 person that wrote this talking about monochloro, you understand 12 1 monochloro to be the one that has the one chlorine molecule 2 attached to the dioxin particle* Don't you* sir? 3 A You are asking me to add to the notes of some author4 less piece of paper. I will not add to it* .S Q 1 am not asking you to add* 6 MR. MUSGRAVE: You are, Mr. Carr. 1 object. He is 7 asking him to assume what the author of this document meant by 8 that. That is exactly what you are asking. Z object. 9 THE COURT: Objection is overruled. Mr. Park* you 10 have to answer the question as it Is put to you. 11 A (By the Witness) All right. I don't know what -- it 12 could have been monochlorobenzene. I am not a chemist. It is 13 my understanding there are other products. There are some 14 products that have the prefix* if you will* monochloro* 15 Q (By Mr. Carr) Would there be any reason for you to be 16 discussing benzene when you are at a meeting determining 17 whether or not you should notify the EPA about a chlorinated 18 phenol such as 2*4 dichlorophenol? 19 A A meeting five years ago? Perhaps there could be. X 20 don't know what the author intended when he said monochloro. 21 Q I am not asking you that. I am asking you whether or 22 not you know that monochloro is referred to when you are dis 23 cussing dioxin referring: to that which has the one dioxin 24 particle -- molecule? 13 1 A 1 donft know what this author referred to. 2 Q I am not asking you that, sir. Mr. Park, you under 3 stand what I am asking you? X am asking you whether or not 4 you understand monochloro? Not what this author says but 5 whether or not you know that monochloro Is referring to that 6 dioxin -- does refer to dioxins that have the one chlorine- 7 molecule attached thereto? 8 A In this context, I will say I do not. If you wish to 9 ask me do 1 understand that monochlorodlbenzo paradioxin -- JO Q Mr. Park, please, If you don't know say you don't know. JI That Is all I am asking you, Mr. Park. If you don't know say 12 It and we will pass onto the next one. 13 A I did say that a moment ago, Mr. Carr. 14 Q And do you know whether or not 2,7 dlchlorophenol 15 represents or is commonly referred to as to that dioxin that 16 has two chlorine molecules? 17 A 1 think you named two different substances. 18 MR. MUSGRAVE: 2,7 dlchlorophenol. 19 MR. CARR: 2,7 dlchlorodibenzo-p-dioxin and it is 20 abbreviated here, 2,7 dichloro. 21 A (By the Witness) I don't know what the author meant 22 when he wrote that. 23 Q (By Mr. Carr) Well, do you see just faintly the 24 quotation or ditto marks right behind the dichloro? 14 1 A 1 see the little mark on the sheet. 2 Q Two little marks, don't you, sir? Barely legible on 3 the copy that you have given us. 4 A Perhaps. 5 Q And could you Interpret that just barely, possibly 6 since you are discussing dioxin in your context that that just 7 might possibly refer to 2,7 dichlorodibenzo-p-dioxln? 8 A I don't know. 9 Q All right. And what about the 2,3,7 dichlorodlbenso* 10 p-dioxin? Is there any doubt In your mind as to what is repre 11 sented there, Mr. Park? 12 A There is doubt simply because I am not a chemist. I 13 am not a toxicologist and 1 am uncomfortable talking on this 14 lubject. 15 Q I didn't ask you that, Mr. Park. 16 A However, I guess I wish the column heading on this otheir 17 exhibit that you have up here had the word spelled but. But I 18 guess I would say that CL3 could mean trichlorodlbenzodioxin. 19 Q Now, to help you refresh your memory, would you turn to 20 the memo that you wrote on May 14, 1979? The one that you gave 21 us yesterday afternoon about 1:30. The last paragraph on that 22 page and did not you write at that time and sign at that time, 23 Mr. Park, "It was mentioned that the product (93% 2,4-dlchloro- 24 phenol) may contain mono, di, trl and tetrachlorodlbenzo dioxins 15 In trace amounts." Did you write that, air? 1 A Yes. 2 3 Q Now, does that refresh your recollection? The fact 4 that you did indeed discuss and when you used the phrase mono 5 at that time, what did you mean by that, Mr. Park? A That would have meant the mono or mono would replace 6 7 the letters tetra in that subsequent word. 8 Q And you understand and when you, of course, use words, 9 you don't use words that you don't understand the meaning of, 10 do you, sir? You are an educated man and you know that you do 11 not use words that you don't know the meaning of. Don't you, 12 sir? 13 A In these minutes which express the conclusion of the 14 committee -- 15 Q Would you answer that question? 16 A I will sometimes use words given to me by toxicologists 17 which I do not fully understand the meaning. 18 Q I didn't ask you if you fully understood it. I asked 19 you if you know the meaning of monochlorodibenzo dioxin. 20 MR. MUSGRAVE: That wasn't you question, Mr. Carr. 21 You asked him if he ever used words he didn't understand and he 22 answered your question. 23 THE COURT; Overruled. 24 Q (By Mr. Carr) Mr. Park, what do you understand mono* 16 1 chlorodibenzodioxin to mean? 2 A (By the Witness) To mean -- bear with me because I 3 am a lawyer trying to speak in chemistry terms. 4 Q Mr. Park, you have said that fifty times already. 5 That does not exempt you from using knowledge that God gave 6 you and you learned in the twenty years you worked at Monsanto. 7 It is no defense, Mr. Park. 8 A I am trying to answer you now, Mr. Carr. 9 (Whereupon the witness and Mr. Carr 10 and Mr. Musgrave spoke at the same 11 time which caused their remarks to 12 be unintelligible and not reported 13 in this record.) 14 MR. MUSGRAVE: I object, Your Honor, to counsel IS saying it is no defense. This gentleman is trying to answer 16 the questions within his knowledge and Mr. Carr is badgering 17 him and belittling him and it is totally improper here. The 18 man is simply trying to answer the questions. .19 MR. CARR: The man is doing his best not to answer .20 the questions. 21 MR. MUSGRAVE: I object to that, Mr. Carr. 22 THE COURT: I am afraid, Mr. Carr, you are right. 23 Your objection is overruled. Now, please answer responsively 24 to the question, Mr. Park. 17 A (By the Witness) I am trying to. I am just explainin g 1 1 may make an error or two here. 2 3 THE COURT: Well, everyone is subject to errors, 4 Mr. Park. Just go ahead and answer the question as beet you 5 can responsive directly to the question that 2s posed directly to you, sir. 6 - 7 A (By the Witness) Okay. : Recalling some instruction or information that I have been given on this, I believe a dioxin 8 9 consists of two chemical rings. They are six sided things that 10 are joined together by some other atoms. And around the out 11 side of these two rings there can be or X guess in a chloro- 12 dioxin there would be chemical atoms coming off. And as I 13 recall, the mono would mean one chlorine atom on the entire 14 ring. Deux or do or di would mean two chlorine atoms. The IS trl would mean three chlorine atoms. The tetra would mean 16 four and so on. 17 Q (By Mr. Carr) And you understood then at that raeting, 18 indeed your recollection is now refreshed, that you did discuss 19 those various dioxins, didn't you, sir? 20 A I don't recall discussing all the various dioxins off 21 the top of my head, Mr. Carr. 22 Q Well, when you read this memo, did it refresh your 23 recollection that you discussed whether or not the 2,4 dichloro24 phenol contained these things in trace amounts? 18 1 A We would have discussed these four here* 2 Q And my question that led up to this, on this board the 3 CLl stands for mono* You understand that, dorft you, sir? 4 You have seen exhibits like this. 5 . A Yes. 6 Q You have seen a number of things which break down 7 these various dioxins into the eight sectors, haven't you, 8 sir, over these past twenty years? 9 A I am sure 1 have seen some. JO Q And CLl stands for mono then, doesn't it, sir? 11 A Yes. 12 Q And CL2 stands for di? 13 A I would think so. 14 Q And CL3 stands for tri? 15 A Yes. 16 Q And CL4 stands for tetra? 17 A I would think so. 18 Q Now, at chat meeting did you discuss as near as you 19 can remember the various toxlcities of these various dioxin 20 components? 21 A I suspect that we did, but, I'm sorry, 1 just cannot 22 recall that discussion. 23 Q Well, it would have been Important for you members of 24 that committee to know at what levels your products contained 19 these various substances that are toxic relatively so speaking 1 Isn't that correct, sir? 2 A Well not If they were not considered toxic. 3 4 Q Well, you have to certainly consider them to know 5 whether or not they are or are not toxic, don't you, sir? A I'm sorry. I misunderstood you. I thought you said 6 7 we considered their toxicity. Q Yes* Toxicity can go all the way from very little 8 9 toxicity to very great toxicity like 2,3,7,8, can't it, sir? A I recall that 2,3,7,8 -- 10 11 Q My question is, sir, toxicity can go all the way from 12 very little to a great deal so that the utmost caution should 13 be used at all times when you can possibly expose to 2,3,7,8 14 TGDD, That is my question. 15 A Certainly toxicity -- are you speaking of dioxin? 16 Q Yes, I am. 17 A It is my understanding that the toxicity of these 18 various types of dioxin can vary from extremely low to what 19 is considered the most toxic and that is 2,3,7,8* 20 Q And It Is important that you in functioning on this 21 committee know, that your group as a whole know, first of all, 22 what dioxins are in the product and, secondly, the various 23 toxiclties of those dioxins. Isn't that important, sir? 24 A From my perspective, I would say that since exposure | 20 | to anyone or the environment will be to the product as a I whole including all Its constituents, the most critical thing 2 3 is the toxicity of the product Including its constituents. 4 Q Again, that is not responsive to my question* The 5 witness Insists -- A I'm sorry, Hr* Carr. I am trying to be responsive. 6 7 Q The witness Insists on adding his view to my question 8 rather than the answer that is appropriate. 9 A You didn't let me finish. 10 Q Would you direct the witness to answer the question. II THE COURT: You are so directed, Hr. Park. Answer 12 the question that was posed to you. 13 A (By the Witness) It is not Important to know the 14 presence of chemicals of such a low toxicity that they have IS no bearing on the toxicity of the entire product. 16 Q (By Hr. Carr) And is that then true for tetrachloro* 17 dlbenzo in what you call trace amounts? 18 A It could bev depending upon the product use. 19 Q Well, assume that there Is exposure to your product. 20 Would you please assume that and let's get that out of this 21 question. Let's get that factor aside. Assume there is 22 exposure. Give no weight at all to the question or give very 23 little weight to the question of exposure. Just assume that 24 the mere fact that it goes out of the plant, goes into commerce 21 ] constitutes exposure. Will you assume that, please, sir? 2 Sir, will you do that? 3 A I will assume It. 4 Q And put exposure out o it. How, is it important that 5 you know these facts about the levels of tetra, for instance, 6 in your product? 7 A If the level of tetras were sufficiently low, 1 don't 8 think it would be important. 9 Q Well, it is important that you know what the level is 10 before you can even begin to determine whether or not it is 11 sufficiently low. Isn't that correct, sir? 12 A I don't think that would always be the case. 13 THE COURT: I'm sorry. I didn't hear your answer. 14 A (By the Witness) I don't think that would always be 15 the case. 16 Q (By Mr. Carr) You mean to say you don't need to know 17 -- we don't need to go through this half a tank car of cyanide 18 again, do we, Mr. Park? You mean to say it is not important 19 that you know at what level 2,3,7,8 TCDD Is in your product 20 when you are functioning on this committee? 21 A I merely responded that I don't know that it is always 22 the case that it must be known. 23 Q In what circumstance could you possibly Imagine that 24 it would not be important that you know how much of a toxic 22 substance like 2,3,7,8 is in your product ben it is given that: 1 everybody is going to be exposed to it? On what possible baair 2 3 could you say that It would not be Important to know how much of that poison is In your product? 4 5 A If the concentrations were so low it could have no toxicity in the product as a whole* 6 7 Q You have to know the concentration to know that it is 8 that low, don't you, Mr* Park? 9 A But if it is that low, you don't need to know It* 10 Q You have to know it, don't you, Mr. Park, before you 11 can decide whether or not it is so low that it won't hurt ,,n 12 ' anybody? Don't you have to know the concentration, sir? 13 A Mr. Carr, I Just said -- you asked my opinion. My 14 opinion was you don't need to know if it is sufficiently low. 15 Q You are automatically saying that you do know that It 16 is sufficiently low. In order for you to make a judgment as 17 to the toxicity of your chemical, you have to know how much 18 in the amount of toxic substances In that chemical. Don't you, 19 sir? Whether it is one millionth, one billionth, or one per 20 cent or 90 per cent, you got to know, or one trillionth, you 21 got to know the level that it exists In your product, don't 22 you, sir? 23 MR. MUSGRAVE: Mr. Carr, are you talking about Mr. 24 Park having to know or Monsanto -- 23 MR. CARR: I am talking about this committee when 1 it makes Its determination as to whether or not to notify the 2 3 EPA. 4 MR. MUSGRAVE: That may be the problem that Mr. Park 5 Is having, that he thinks you are talking about him, sir, as a lawyer as opposed to the toxicologist or a doctor. 6 7 A (By the Witness) I think another reason, another 8 basis on which one might not need to know that is when the 9 given product itself is toxic. 10. MR. CARR: Your Honor, would you direct the witness - 11 A (By the Witness) I'm -~ 12 THE COURT: X don't believe that was responsive. I 13 am directing you to answer the question as posed to you. 14 A (By the Witness) I did answer. I will answer again. 15 1 don't feel that It is an absolute necessity that that be 16 known and X was explaining why. 17 Q (By Mr. Carr) Mr. Park, a toxic substance that is 18 toxic by Itself has its toxicity added to it when It has con 19 taminates that are more toxic than It. Isn't that correct* 20 sir? 21 A X don't know what the chemical reaction would be, Mr. 22 Carr. 23 Q Oh, can't you add? Xf a substance is toxic by Itself 24 and if you put a toxic substance In It that is more toxic than 24 < 1 that, hundreds of thousands of tines more toxic than that, 2 doesn't that add to the toxicity of your product? 3 A Now, you are asking me a hypothetical question. 4 Q I am asking you that you said it is not important to 5 know it when the substance itself is toxic. You gave that as 6 an example where you don't need to know the level of the toxic 7 substances that contaminate your product and I am suggesting 8 to you that example is no good. It won't wash. Isn't that 9 correct, Hr. Park? 10 A No. 11 Q All right. Then let's go a step at a time. Doesn't 12 adding poison, a greater, a more intense, hundreds of thousands 13 of times more Intense poison to a poison add to the toxicity 14 of that poison to which it is added? 15 A If it is added in a sufficient amount. 16 Q And you have to know that amount, sir, to make that 17 determination, whether or not it is sufficient, don't you, sir3 18 A You don't if the product to which it Is added is alreac 19 considered to be so toxic or caustic or whatever that it is 20 handled in a very, very careful manner. 21 Q Well now you are talking about exposure again, aren't 22 you? I gave you the predicate, Mr. Park, that you got to assun 23 that everybody is exposed to it. It is going to be out in the 24 public and people are going to be exposed to it. Don't give ms 25 1 this business about handling* MR* MUSGRAVEt Object to that, Your Honor. He talkec 2 3 about an assumption about six questions ago* 4 THE COURT: Overruled* I think It went to the line 5 of questioning as an assumption. MR* MUSGRAVE: Well, how is the witness supposed to 6 7 read his mind, Your Honor? THE COURT: X don't think it took mind reading* X 8 9 think it was perfectly clear in the context of the assumption as given to this witness and the subsequent line of questions 10 11 and we are still on the same line of questions* Overruled* 12 Q (By Mr* Carr) Would you answer that question, Mr* 13 Park? 14 A (By the Witness) Would you repeat the question? 15 Q Ho, X won't repeat the question, Mr. Park. 16 A Okay. Then X guess X have to say I don't know* 17 Q And have you always exercised -- has this committee 18 always exercised Its function without knowing the level of 19 additional toxic substances that are being added to your pro* 20 duct? So far as you know and you last exercised your function 21 as far as X know on January 25, 1985* 22 A Xt is unusual in a way to be considering the ingredient 23 of the product* 24 Q Your Honor, the witness is not answering my question* i 26 A I ara trying to answer the question. Your Honor* Would 1 you allow ras to finish, please, Hr* Carr? 2 3 Q No, I won't* X would like for this case to be flnlsbec 4 someday and it won't if you decide that you want to answer the questions that you want to answer and don't answer the ques 5 tions that I want to ask you* Xt will never end* 6 7 A X am answering Just exactly what you asked rae, Mr* Carr* 8 9 MR* MUSGRAVE; Just a minute* X object to counsel 10 not permitting the witness to answer the question with what 11 he believes is the appropriate explanation to the question as 12 phrased* 13 THE COURT: Overruled* I don't think it was respon 14 sive* IS MR* MUSGRAVE: X think he is entitled to do that. 16 THE COURT: Not if the answer is not responsive and 17 in ray determination, it was not responsive to the question* 18 Objection is overruled* Mr* Park, will you please answer the 19 question, as posed* 20 A (By the Witness) Most of our 8E considerations deal 21 with new health effects resulting from toxicity studies as to 22 whether is this new information* Xf it is, is the information 23 sufficiently significant that it could represent a substantial 24 risk of injury to health and the environment* Only a very few 27 have dealt with ingredients of chemicals* So I wanted to 1 explain why I would answer that it is unusual to consider 2 3 ingredients* 4 Q (By Mr* Carr) Mr* Park, I didn't ask you for an 5 explanation* A Okay* It is unusual to consider ingredients in the 6 7 product* Q That isn't responsive to my question* My question is, 8 9 does your committee function this way that you pay no attention to the concentration of these toxic substances that may go 10 11 into your chemical when you determine whether or not you should 12 notify the EPA? 13 A No* That is incorrect. When It is appropriate, we 14 would consider that* 15 Q When is it appropriate, sir? 16 A Whenever the toxicologists feel it is appropriate. 17 Q And did he feel it was appropriate In 1979? 18 MR* MUSGRAVE: With regard to what, Mr. Carr? That 19 Is vague and indefinite* 20 Q (By Mr* Carr) Whatever he is talking about. I am 21 going with the witness now. Whatever he is talking about* If 22 he Is vague, then I am vague* Did you consider the level of 23 the toxic substances that was in 2,4 dichlorophenol when you 24 decided in June of 1979 not to notify the EPA? 28 1 A (By the Witness) It isn't clear -- it isn't really 2 clear the specifics of what was considered in the minutes of 3 the meeting. The toxicity of the whole product I think was 4 considered. I see that a reference was made to the long 5 experience in manufacturing and use of the product with no 6 known adverse effects 7 Q Do you also see the paragraph where you considered 8 the possible level of dioxin In the product, Hr. Park? 9 A Yes. 10 Q Hr. Park, you did consider the level of concentration 11 of dioxin in the product didn't you sir? 12 A Considered the presence in the product. 13 Q And you considered the levels also did you not sir? 14 A I would say so yes. 15 Q And Hr. Park as a matter of fact you knew at the 16 time you had this meeting that your product 24 dichlorophenol 17 contained dioxins at the level of 5 parts per million. Didn't 18 you sir? 19 A 1 would have to refresh myself. Is that in the notes 20 here somewhere? 21 Q Do you remember that it had 5 parts per million? 22 A Not offthe top of my headMr. Carr. 23 Q Now, let me hand you your notes then. Would you mark 24 this exhibit, please? 29 1 (Plaintiff*s Exhibit No* 1292 2 was marked for Identification.) 3 Q Handing you now what has been marked Plaintiff's 4 Exhibit 1292 which la your memo of May 14, 1979, but this tin 5 It was delivered to us yesterday afternoon and it has your 6 notes attached to it. Look at your notes, please. I will off 7 that exhibit into evidence if It please the Court* You recog 8 nize the attachment as your notes, don't you, sir? 9 A Give me just a moment here. 10 Q Do you recognize the attachment as your notes, sir, 11 ' because it was represented to us that it was your notes? 12 A May I ask you a question first? 13 Q Ho* You will answer that question, please, Mr. Park. 14 Are.those your notes? 15 A 1 can hear you, Mr. Carr* 16 Q Well, I'm sorry, Mr. Park. 17 A Right. I would say these are my notes* 18 MR. CARR: Offer that exhibit into evidence if it 19 please the Court. 20 MR* MUSGRAVE: Same objection as previously* It 21 deals with chlorophenol, with 2,4 dichlorophenol 22 23 24 been THE COURT: Okay* Your objection is noted* MR. MUSGRAVE: And the other objections that have 3D 1 THE COURT: I'm sorry. I didn't hear you. HR. HUS6RAVE: And the other objections that have 2 3 been made to these documents previously. 4 THE COURT: Fine. It Is admitted over objection. 5 Q (By Hr. Carr) Do you have in your handwritten notes, Hr. Park, the statement that prior to process change this 6 7 product contained up to 5 parts per million of dioxin? The first page of your notes. Bottom of the page of the document 8 9 that has been numbered by Monsanto as C03522. A (By the Witness) Okay. 1 do see this, Mr. Carr. 10 11 Q And that Is your handwritten note, isn't it, sir, that 12 this product contains 5 parts per million of dioxin on the 13 one to the four trichloro? 14 HR. MUSGRAVE: Well, I object to that, Tour Honor. IS 16 17 Carr? HR. CARR: Does It say that -- HR. MUSGRAVE: Why don't you read what it says, Mr. 18 Q (By Hr. Carr) Does It say it contains up to 5 parts 19 per million dioxin? 20 A (By the Witness) What It says here -- 21 THE COURT: I don't have a copy of the note here. 22 HR. CARR: X only have two, Tour Honor. 23 THE COURT: If you bring It up then I could rule on 24 the objection because X don't have a copy of the exhibit. 31 1 Objection Is overruled. Thank you. 2 A (By the Witness) The statement says, "Prior to this 3 time -- " 4 Q (By Mr. Carr) My question Is, does It say that, Mr. 5 Park? 6 A No, It does not, Mr. Carr. 7 Q What does it say then, Mr. Park? 8 A It says, "Prior to this time product contained up to 9 1-4 per cent trlchloro, 5FPM dioxin." ( 10 Q What does 5PFM dioxin mean, Mr. Park? 11 A .Zt means that the product contained amounts up to or 12 less than 5PPM dioxin. 13 Q What does 5PPM dioxin mean, Mr. Park? 14 A 5 parts per million of, I guess, of the total dioxin 15 spectrum. 16 Q Now, Mr. Park, you let this product go out and you did 17 not notify the EPA, did you, sir, that It contained 5 parts 18 per million of dioxin? 19 MR. MUSGRAVE: Object, Your Honor. That is a mis- 20 characterization of the prior testimony. No testimony that 21 this product contained 5PPM of dioxins. 22 THE COURT: Overruled. 23 A (By the Witness) You are going beyond my knowledge. 24 1 am familiar -- you are going beyond the 8E thing here. The 32 I conclusion of the group that considered -2 Q (By Mr* Carr) Mr, Park, my question is your product 3 that is not what you made, but Monsanto shipped out product 4 in commerce that contained up to 5 parts per million of dioxin 5 and you did not notify the EPA of that fact. Isn't that 6 correct, Mr. Park? 7 A The 8E deliberation does not consider -- 8 Q Your Honor, would you direct the witness to answer 9 that question? 10 THE COURT: Mr. Park, you have to answer the question 11 as posed to you. Answer the question. 12 A (By the Witness) We did not notify the EPA about the 13 dioxin content at this time. 14 Q (By Mr. Carr) Mr. Park, have you ever notified the 15 EPA of the dioxin content? 16 A I don't know. 17 Q Thnwhy did you add "at this time" because if you ever 18 notified them I haven't seen the document and your company is 19 under orders to produce all those documents to me. Now, Mr, 20 Park, if they had been notified you were serving on the 21 committee that had the responsibility of making the determina 22 tion to notify them. Isn't that correct, sir? 23 A That is correct. 24 Q And you have no knowledge that the EPA has ever been 33 1 notified. Isn't that correct, sir? 2 A I would have knowledge of 8E notifications. 3 Q And that is what I am talking about. 4 A Our company has personnel that have a great deal of 5 contact with EFA. 6 Q The question is, do you have any knowledge, Mr. Park, 7 that the EFA was ever notified of the 5 parts per million, 8 up to 5 parts per million contamination the 2,4 dlchlorophenol 9 had? 10 A I can't recall off the top of my head. 11 Q Hr. Park, do you consider that 5 parts per million of 12 dioxins Is a trace amount? 13 A I think so. 14 Q And, therefore, your judgment trace amounts need not 15 be reported to the EPA. Is that correct, sir? 16 A When they do not represent a substantial risk of Injury 17 Q Would you answer that question, please, sir? IS A That Is correct. 19 Q And does the rest of your committee so far as you know 20 share this view? 21 A The committee varies from meeting to meeting, but those 22 present at this meeting did share that view. 23 Q Well, at any of the meetings that have been had talking 24 about 2,4 dlchlorophenol or Santophen or orthochlorophenol crud 34 1 or parachlorphenol, did any committee at anytime that you 2 served on it ever determine that the EPA should be notified 3 when the product contains in many instances over 5 parts per 4 million? Were they ever notified, sir? 5 MR, MUSGRAVE; What product are you talking about, 6 Mr, Carr? 7 MR. CARR: 1 enumerated those, counsel. 8 MR. MUSGRAVE: Hot in that question you didn't. 9 THE COURT: I believe he did. Overruled. 10 A (By the Witness) We have notified the EPA in two 11 instances but they did not relate to product ingredients; 12 They related to health effects determined in toxicity studies. 13 Q (By Mr. Carr) My question is, did you ever notify 14 -- did the committee on which you served ever notify the EPA 15 that these products, parachlorophenol, 2,4 dichlorophenol, 16 orthochlorophenol, Santophen, contained levels of dioxin up 17 to 5 parts per million? 18 MR. MUSGRAVE: Object to that. There is no evidence 19 to that effect, Your Honor. 20 THE COURT: Overruled. 21 A (By the Witness) I do not recall. X would have to 22 review the minutes of those meetings. 23 Q (By Mr. Carr) Mr. Park, were you not contacted, there 24 has been a lot of motions for discovery been going on for these 35 1 last three months and we have been getting documents in 2 dribbles day after day Now, have you not been a part of 3 searching for documents that .would be responsive to tny request 4 for production in this area? 5 A No, X haven't. 6 Q Have you not examined your files for such documents? 7 Sir? 8 A These last few months? 9 Q Yes, ` 10 A No. 11 MR. CARR: Your Honor, may we approach the bench? 12 THE COURT: Yes, you may. 13 Q (By Mr. Carr) Have your files been examined by any* 14 body? 15 MR. MUSGRAVE: Right question, Mr. Carr. 16 A (By the Witness) I am not sure. 17 MR. CARR: May we approach the bench, Your Honor? 18 THE COURT: Yes, you may. 19 (The following proceedings were 20 had at the bench outside the 21 hearing of the jury.) 22 MR. CARR: I would like to have an in*camera examina tion of this man relative to his files and th contents and what discovery has taken place. 36 1 THE COURT: I am not quite sure what you mean. Do 2 you mean to bring him back or his files back or both? 3 MR, CARR: I would like to examine him about his 4 files and what has been discovered from his files, what was 5 gone through in his files, who did It and when they did it to 6 determine whether or not discovery of his files have been 7 complete before I continue on with the cross-examination of 8 him, I would think it would be more appropriate that it be 9 done outside the presence of the Jury. 10 THE COURT: What is your position? 11 MR, MUSGRAVE: My position is that as directed by 12 the Court -- this would be something for Mr, Nassif, Mr. Carr 13 Is moving for an In-camera examination of Mr, Park to determine 14 whether his files have been reviewed In connection with deter 15 mining if everything has been produced out of his files and I 16 believe you have been through his files yourself, 17 MR. MASSIF: I have. They were pulled, 18 MR. CARR: Your Honor, I have never gotten an 19 affidavit of compliance from Mr. Heineman, He has been under 20 a court order to give it and I have never got such an affidavit 21 MR. MASSIF: You want me to respond to that, Your 22 Honor. 23 THE COURT: If you want, 24 MR. CARR: I want your representation that we have 37 I all the possible files that could relate to TSCA notification. 2 MR. MASSIF: Yes. 3 MR. CARR: Then I won't need anything further. 4 THE COURT: Okay. 5 (The following proceedings were 6 had In the presence and hearing 7 of the Jury.) 8 Q (By Mr. Carr) How, Mr. Park, one of your attorneys 9 has represented to us that he has gone through your files and 10 given us everything that would relate to this subject. Now, 11 have we got everything then to your knowledge, sir? 12 A (By the Witness) I don't know from my personal know 13 ledge, sir. 14 Q Well, would you accept your attorney's representation? 15 A Yes 16 Q Did you go through and pull out these notes yourself? 17 Your handwritten notes. Did you furnish those to Mr. Nassif 18 and Mr. Musgrave, Mr. Helneman, Mr. Comfeld, Mr. Tice and 19 Mr. Ryder? The handwritten notes. 20 A Yes, X understand. I am trying to think back here. 21 I think I furnished the files to them. 22 Q Did you go back after you furnished the files and go through your notes and pull out these handwritten notes that we got yesterday? 38 I A I don't recall doing that. 2 Q Mr. Park, then if what your attorney said -- 3 THE COURT: Gentlemen, could you approach the bench 4 for a minute, please? 5 (The following proceedings were 6 had at the bench outside the 7 hearing of the jury.) 8 THE COURT: If I remember correctly, either you or 9 Massif told me when these were submitted that he pulled those 10 out of his file in preparation for his testimony today and 11 furnished them. 12 MR. MUSGRAVE: Let's ask Joe. 13 THE COURT: Yeah. As I said, I don't remember. 1 14 have been allowing both of you to participate in those motions. 15 I don't remember who said what. 16 MR. MUSGRAVE: I haven't participated in the discover 17 motions. 18 THE COURT: Right. If I remember correctly, you 19 told me when those notes were given to me for in-camera inspec 20 tion that he pulled them out of his file and gave them to you 21 in preparation for his testimony. 22 MR. MASSIF: That's right, Your Honor. I will tell 23 you he gave them to me. Did I give them to you yesterday? I 24 gave them to you the same day I got them from him. 39 1 THE COURT: You gave me two sets of notes* 2 MR. CARR: What good Is It? 3 MR. NASSIF: He handed me a file. I went through a 4 file. X pulled the stuff out. I showed him I was taking them 5 out of his file. He was right there. 6 THE COURT: In answer to your question, you gave me 7 two sets of notes and 1 don't remember which ones. 8 MR. MASSIF: They were In the ones that you just 9 ruled on yesterday. 10 THE COURT: You gave them to me yesterday morning II and I don't remember. 12 MR. MASSIF: Yes. I got them at the same time. He 13 told me -- X said open it up. X went through it with him. 14 MR. CARR: Then all you have done Is go through the 15 files that he has given you. 16 MR. MASSIF: Mo. X had his secretary pull the files. 17 He was In Arizona. When he was In Arizona X had his 8E files 18 pulled and we gave him copies and we produced them to the Judge 19 ln~camera about a week ago. 20 THE COURT: Something like that. 21 MR. MASSIF: Okay. Then when he came back X was 22 given the impression, X was given the understanding from his 23 secretary In his absence that we had his files. When he came back, X said, X raised the issue X told you about the other day. 40 1 said, "We don't have handwritten notes of your 8E meetings. 1 Did you keep those?" And he said, "Yes* They ar in another 2 3 file." He brought that file in with him and that is why I 4 produced them yesterday. I had reviewed previously what were 5 supposed to be all of his 8E files. MR. CARR: All X have got if X remember are these 6 7 notes. 8 THE COURT: There were two sets of notes. 9 MR. NAsSXF: There are four sets* The first note 10 that you got was a handwritten note, but not on an 8E meeting. n Xt was a handwritten note following the Sturgeon spill of that 12 February 9, 1979. Remember? That was the first one, Rex. I? And then X gave to you yesterday, X think it was yesterday 14 morning, four sets of the minutes with four sets of the notes 15 attached. 16 THE COURT: How, wasn't there a submission of notes 17 before that, too? 18 MR. NASSIF: They weren't notes of Phocion Park, 19 except for that one handwritten note which was not an 8E note. 20 THE COURT: Veil, perhaps it was these other notes. 21 MR. NASSXF: Yes. X gave Jerry one handwritten note 22 of Mr. Park that related to the tetrathal meeting that we 23 didn't ask for a ruling. So, Rex, you have his minutes from 24 the five meetings on dioxin and all his handwritten notes to 41 1 the extent that there are any handwritten notes and I certify 2 that 1 did myself personally In his presence* 3 MR. CARR: I will accept that. The man's memory 4 Isn't that good. 5 THE COURT: Okay. Flue. 6 (The following proceedings were 7 had in the hearing and presence 8 of the jury.) 9 Q (By Mr. Carr) Mr. Park, X take It then that if it is 10 not in your files it doesn't exist. 11 A (By the Witness) X don't understand the context of 12 your question. 13 Q Notification or memos relating that you are notifying 14 the EPA about the presence of dioxin in Monsanto products. IS Xf they are not in your file, they do not exist. Is that 16 correct? 17 A Xf It was pursuant to an 8E meeting, it would be in my 18 files. 19 Q And is the answer to my question that they don't exist 20 then? 21 A What does not exist? 22 Q Notification of the EPA under Section 8E that toxic 23 substances such as dioxin were present in your chlorinated 24 phenols. 42 1 MR. MUSGRAVE: You say toxic substances such as 2 dioxin, are you talking about dioxins or are you talking about 3 everything? Have they ever notified EPA under 8E if there is 4 some problem with some chemical? Because that is what your 5 question encompasses, Mr. Carr. 6 7 sir? MR. CARR: Could you answer that question, please, 8 MR. MUSGRAVE: Veil, I object to the question as 9 being overly broad and Including chemicals that have nothing 10 to do with this lawsuit. 11 MR. CARR: I precisely said chlorinated phenols. 12 MR. MUSGRAVE: You did not, Mr. Carr. 13 THE COURT: Overruled. 14 A (By the Witness) My. files on the, what is it, the 15 four meetings I guess concerning chlorinated phenols would 16 contain any record of notification to the EPA with respect to 17 the 8E meeting and, therefore, with respect to the 8E m e t i n g 18 there would be nothing that existed outside of those files. 19 Q (By Mr. Carr) And if it is not there, then it does 20 not exist. Isn't that correct, Mr. Park? 21 A I can't say that it doesn't exist, Mr. Carr. 22 Q 1 thought you Just got through saying in other lan 23 guage, but I wanted it a little more precise that if it is not 24 in those files, that it would be in those files and not outside 43 1 those files* 2 A Any record of EPA contact pursuant to the 8E meeting 3 would be in my files* 4 Q And if they are not in those files, then they do not 5 exist* Isn't that correct7 6 A I can't say that. 1 can say to the best of my know 7 ledge that no EFA contact was made. 8 Q Do you understand the contradiction between the two 9 things that you have Just said, Mr. Park? 10 A Would you explain that? 11 Q Do you realize that you are saying two contrary, con 12 tradictory things? 13 A I don't believe I am, Mr. Carr. You asked me if some 14 thing exists. 15 Q Is it true that if there were any notification to the 16 EPA of an 8E finding that there was dioxin in your chlorinated 17 phenols, is it true that a copy or a record of such notifica 18 tion would be in your files? 19 A It certainly should be. 20 Q Should be. Where else would they be? 21 A Itshould be in my files. 22 Q And if they are not in your files, then is it true 23 that so far as you know they do not exist? 24 A A record of notification to the EPA pursuant to 8E? 44 1 Q That is correct. 2 A Then to the best of my knowledge, It would not exist. 3 Q All, right. Mr* Park, then the EPA has never been 4 notified to the best of your knowledge of the fact that dioxin 5 is in your product of chlorinated phenols* Is that correct, 6 sir? - 7 A I cannot go that far* 8 Q Sir? 9 A I said no. I cannot answer affirmatively to that 10 question because you did not limit it to 8S* 11 Q Under 8E, 12 A Under 8E, the answer would be yes* 13 Q Now, Mr. Park, you have suggested that perhaps one 14 reason for not notifying the EPA was because of the fact that 15 you believe the product when it is put to use, there wouldn*t 16 be any exposure. Is that correct, sir? 17 MR. MUSGRAVE: Your Honor, we have been down this 18 repeatedly. I object to the repetitive nature of the cross19 examination of this witness about this topic. You know, we 20 have now been on it for probably the better part of three 21 quarters of the day and it is the same questions phrased in 22 different fashions. It is just all repeat testimony. Object 23 to It 24 THE COURT: Objection is overruled* 45 1 A (By the Witness) What Is considered important at any 2 8E meeting Is whether there Is evidence of a substantial risk 3 of Injury to the health or environment 4 MR CARR: Your Honor, would you direct the witness 5 to answer my question? 6 THE COURT: Mr* Park, that Is not responsive* Pleas^ 7 answer the question that has been posed to you* 8 A (By the Witness) I am trying to see If 1 remember 9 correctly, Mr. Carr. Your question was, did ve consider the 10 toxicity of the Ingredients? 11 Q (By Mr Carr) Your Honor -- Agnes, could you read the 12 question to him one time? 13 (Question read*) 14 A That could be considered, yes* 15 Q Now, you do agree that -- I want you to assume, if 16 you would, that there has been testimony that dioxins can cause 17 serious health effects upon human beings, cancer and the long 18 list of things that we have read to you before* You do agree 19 that those are serious health effects, don'tym, sir? If In 20 fact it is true. 21 A X don't understand the medical terms there, Mr* Carr. 22 Q You don't understand the word "liver damage"? 23 A I do understand that. 24 Q Is that a serious health effect? 46 A I would consider it a serious health effect. 1 Q Dojou understand what porphyria is? 2 3 A I'm sorry. I don't. 4 Q Do you know whether it is or is not a serious health 5 effect? 6 A No, 1 don't. 7 Q Do you know what "cardio-vascular disorders" means? 8 A I think I do, yes. 9 Q Is that a serious health effect? 10 A Yes, sir. 11 Q Do you know what cancer means? 12 A Yes, I do. 13 Q Is that a serious health effect? 14 A Yes, it is. 15 Q Do you know what polyneuropathy means? 16 A I am not sure. 17 Q You are not sure and you haye been sitting on this 18 committee and you have been discussing what dioxin does to 19 people and considering the health effects of dioxin and you 20 don't know what neuropathy means. You know what poly means. 21 A Yes, sir. 22 Q And you know what neuro means, don't you, Mr. Park? 23 A It would relate to the nerves. 24 Q That's right, Mr. Park. And you know what pathy means. 47 1 It aea&s disease. You know that,too don't you sir? Patho 2 logical, P-A-T-H, disease. So, polyneuropathy means many 3 nerve diseases, doesn't it, sir? Now, is that a serious health 4 effect? 5 A That would be a serious health effect. 6 Q Then you also understand that if dipain can cause 7 serious health effects that you may not consider exposure. S You know that, too, don't you, sir? 9 A I don't know that I do. 10 Q I hand you now what has been marked Plaintiff's n Exhibit, I'm sorry, Monsanto's Exhibit 881 and ask you, do you 12 recognize that? And ask leave to pass copies to the.jury. 13 THE COURT: Any objection? 14 MR. MUSGRAVE: The same objection I made previously IS about cross-examining this man with regard to the law. The 16 law is the province of the Court and also object to the rele 17 vancy of the application of this law to the entire issue, 18 Your Honor. 19 THE COURT: Objection is overruled on both points. 20 Those being the only objections, you may pass them to the jury. 21 A (By the Witness) This appears to be an excerpt from 22 a -- 23 Q (By Mr. Carr) I haven't asked you a question. 24 A I'm sorry. 1 thought you did. 48 Q will give the entire exhibit, Monsanto Exhibit 881 1 You may read it, If you like. Do you recognize that as part 2 of the EP consent published in th Federal Register on March 3 4 16, 1978, that is to be Used in conjunction with the Act. S Itself* Do you not, air? A Yes 6 7 Q And the column that we have in front of us is what 8 constitutes substantial risks. You recognize that, don't you, 9 sir? You see it headed that way, sir? You see what constl* 10 tutes substantial risks? 11 A Yes,, When you said -- |v 12 Q You see that, sir? ' *' \\ 13 A I see that, but that is not part of the statute. :Nor i 14 is it a regulation. IS Q Mr. Park, did I say that it was part of the statutj e? 16 1 said it is the comment, it is the Interpretation of the EPA H that was published in the Federal Register that goes with the 18 Act and that you use in determining what you do under the Act. 19 Isn't that correct, sir? 20 A That's right, although our primary reference is to the 21 Act itself. 22 Q I understand that. Do you understand what I said is 23 to take away from that? Isn't this something that you probably 24 had a part to preparing part of making up Monsanto Exhibit 881 49 that you understand goes along with the Act; that you are 1 obligated to use that in making determinations under that 2 3 Toxic Substances Control Act. You know that don't you 4 Mr. Park? 5 A Obviously 1 do Mr. Carr. But I am drawing a dis tinction though. It does not go along with the Act. We make 6 7 use of it. \ 8 Q X understand that Mr. Park. It is what you are 9 supposed to do. You are supposed to make use of it in order 10 to interpret the law in order to help you decide what you II should or should not notify the EPA about. Isn't that correct 12 sir? ! 13 A We do make use of it. It is as you know it is `not 14 a regulation. It is not enforceable. 15 Q Your Honor would you direct the witness to answer 16 that question? i 17 THE COURT: Answer the question Mr. Park. 18 A (By the Witness) Yes. We make such use of it as is 19 deemed appropriate. 20 Q (By Mr. Carr) Could you answer my question please 21 Mr. Park? 22 A I thought I just did. 23 THE COURT: Overruled. I don't think so. Answer the 24 question Mr. Park. i 50 A (By the Witness) We do .make use of It, 1 Q (By Mr Carr) Yes, but you said ~~ you added some 2 3 What you deem appropriate, I don't accept that, Mr, Park 4 Would you read the question back to him that 1 asked him? 5 MR, MUSGRAVE: Well, I object to counsel*s not 6 accepting It, Your Honor, It is a properly legitimate ant 7 THE COURT: Well, no, it Is not In view of the 8 question that was asked. Your objection is overruled, P] 9 read the question back once, 10 (Question read 11 A (By the Witness) If you are compelling me to say 12 either this has the same weight as the statute or not, I ! 13 to say It does not. 14 Q (By Mr, Carr) Mr. Park, will you listen to that 15 question again? 16 A Yes, sir, 17 Q Do you understand that I asked you whether or notj i 18 had the same weight as the statute? What do you believe !f 19 1 asked you? 20 A I would be glad to explain what I -- 21 Q Mr. Park, I want you to answer that question. The 22 if you want to make an explanation, you can explain all & 23 long once you answer the question, I am not barring you i 24 making explanation. You can give any explanation you want i 51 1 first answer the question, 2 A Thank you, Hr* Carr. Yes, we do make use of this In 3 interpreting the statute. Now, let me explain. When this 4 interpretive statement by the EPA was adopted, the EPA recog 5 nized that the statute Itself was brief and the EPA intenj 6 tlpnally adopted what they called an Interpretive statement, Ji 7 if you will, a policy and not a rule or ngulatlon because the 8 EPA went a little bit beyond what they felt the statute would 9 require and they did not want to go through hearings on this 10 question, did not want to go through a possible challenge of 11 EPA exceeding its authority* So, this interpretive statement 12 or statement of policy or whatever does not have the force of 13 law. It is an aid which we use, but many companies have taken 14 issue with different parts of it. There la a portion here, 15 for example that deals with what is called blo-accumulation 16 in fish. This is in the environment when a substance might 17 tend to accumulate in different organisms. The formula used 18 i by the EPA it was felt was incorrect. They stay have subse 19 quently changed that. I am not sure, but a number of people 20 commented to EPA that this was in error and that people did j 21 not intend to follow it. 1 just point out that this policy 22 statement does not have the force and effect of the statute 23 which is the primary thing with which we are concerned. 24 THE COURT: Mr. Carr, is this a good point for i 52 short break? 1 MR. CARR: I would like to ask one question. This 2 3 does contain the statement, does It not, sir, "the human health 4 effects listed In sub-part A below, for example, are so serlouii 5 that relatively little weight is given to exposure. The mere fact the Implicated chemical Is in commerce constitutes 6 7 sufficient effldence of exposure." That Is In the law, is it 8 not, sir? 9 A (By the Witness) No, it is not. 10 Q (By Mr. Carr) That Is in the statement. I'm sorry. 11 It is not In the law, but It is* in their Interpretation of , 12 what constitutes substantial risk. 13 A It is in the EPA policy statement. 14 Q And they are telling you, are they not, that once you 15 ship it out of the plant that Is exposure by itself? Suffi 16 cient evidence of exposure. 17 A It says, "Relatively little weight should be given to 18 exposure." 19 Q What else does It say? 20 A It goes on to say that, "The fact that the Implicated 21 chemical is in commerce constitutes sufficient evidence of 22 exposure." 23 Q And that means that you don't need to consider any 24 other fact about exposure other than the fact that It leaves 53 the plant* Isn't that correct, air? 1 A I don't Interpret it that way* No, sir. 2 3 Q Well, we will have a recess and then we will get back 4 to your interpretation. 5 THE COURT: ladies and gentlemen, we are going to take a short recess at this time. I would remind you and this 6 7 goes for any other breaks that we take during the day, you are 8 not to discuss this matter among yourselves, with anyone out 9 side the jury panel, or as yet form any opinions or conclusions 10 about the matters in trial. Court will be in short recess. 11 (Short recess taken.) 12 MR. MUSGRAVE: Can we approach the bench, Your Honor? 13 THE COURT: While you are standing, why not? 14 (The following proceedings were 15 had at the bench outside the 16 hearing of the jury.) 17 MR. MUSGRAVE: I would anticipate that Mr. Carr in 18 tends now to conduct an examination of this witness as to the 19 application of the statute, Section 8E that has been mentioned 2Q here and the evidence or the policy that supports it and get 21 into what it means. An attempt to apply this witness's inter 22 pretations of the situations as to whether or not Monsanto fol 23 lowed it or didn't follow it, was it in violation of the Statute 24 or not in violation of the Statute. I would like to make an 54 1 objection at this time as to getting Into that and pending the 2 Court's ruling would request It be a continuing objection so 3 I don't have to continually object on the ground that this Is 4 not a lawsuit that Involves whether or not Monsanto has vlolati 5 Section 8E of TSCA. The Interpretation of the Statute Is not 6 a topic, a proper subject of examination of the witness. It 7 is a question for the Court and it Is totally improper and has 8 no probative value In this lawsuit or weight against prejudi 9 cial effects that It may have and as I have Indicated this Is 10 not an issue In this lawsuit whether Monsanto has violated or 11 not violated the Statute* 12 MR. CARR: Your Honor, we are in the punitive part 13 of the case and their action with regard to this Statute has 14 a lot of probative value as to the notices that they have 15 given the plaintiffs in this case, th cover-up that they have 16 undergone. This is part of a broad plan of cover-up. As a 17 matter of fact, the exhibits brought in in question were brougl 18 in by Mr. Musgrave. 1 didn't get into really any attempt to 19 interpret the law until such time as Mr. Musgrave started 20 asking his witness whether or not the rules and regulations 21 and what they meant and Monsanto's attitude toward what was 22 toxic substances and what Is not. It has a great deal of 23 importance in this case as to their attitude toward OOP and 24 what the clean-up should have been. It's all -- it would be 55 1 Impossible to separate their action with regard to considering 2 2,4 dichlorophenol as a toxic substance because of its dioxin 3 content or lack of content and their attitude and knowledge 4 about the OCP. And itfs all -- one bears on the other. It is 5 intermingled so much it would be impossible to keep it out. 6 MR. MUSGRAVS: Just one quick statement. The record 7 will reflect that he opened up this topic and marked the 8 Statute and cross-examined a witness about whether Monsanto 9 had complied with it or not, which would be fir. Mleure on his 10 cross-examination. Number two, I would also add that the 11 topics developed here are remote, so remote In time from the 12 occurrence, whether the state of mind of Monsanto is the real 13 Issue that they are of no probative value weighed against the 14 other effects that they have. 15 THE COURT: X think it is properly part of the 16 punitive aspect of the case. I think this person, whoever 17 brought it up and it is not really material as to who opened 18 it up. It is properly a matter that can be considered in thiB 19 aspect of the case. I think it is intricately Interwoven with 20 these other aspects that are properly part of the punitive 21 case. And I think that this person as a member of the committis 22 that takes actions or decides not to take action under TCSA 23 and is the attorney on that is the person who can and should 24 be examined on these points on all these bases. X will overrun. 56 1 your objection. I will make it a continuing objection going 2 to this entire line of questioning so that it does not have to 3 be renewed. 4 (The following proceedings were 5 had in the hearing and presence 6 of the Jury.) 7 Q (By Hr. Carr) Hr. Park, to get the record straight 8 as to what this la that we are about to discuss, this is part 9 of the Environmental Protection Agency statement of interpre JO tation and enforcement policy. Is It not, sir? II A (By the Witness) Yes. This is Defendant*s Exhibit 12 880. Is that what we are talking about? 13 Q Yes, 14 A Yes. 15 Q And it was published in the Federal Register, was it 16 not, sir? 17 A Yes. 18 Q And those who wish to take issue with it or to argue 19 with it or to say that it should not be enforced, all had an 20 opportunity to reply to that publication, did they not, sir? 21 A Ho. It Is not enforceable, Hr* Carr. 22 Q Excuse me. Could you please answer that question, sir? 23 A I am. 24 HR. MUSGRAVE: You asked him about enforcement and he 57 1 answered the question* 2 Q (By Mr* Carr) I asked whether or not everyone had an 3 opportunity to comment on it prior to its enforcement* 4 A (By the Witness) A t It la not enforceable* B, an 5 earlier draft as X recall was published, Comments were request 6 A number of parties did consent on lt> The policy statement wa 7 revised and was republished without any further allowance for 8 comments or for challenge or anything else* 9 Q Did anyone challenge that part of the policy of the 10 EPA dealing with the criteria for exposure? 11 A I frankly cannot recall offhand* 12 Q Well, you have the exhibit that has the comments there 13 and you have had an opportunity to review It before you came* 14 You surely reviewed this matter before you came in here today, IS did you not? 16 A I did not review all these comments that are shown 17 here. 18 Q Well, do you have any knowledge that anybody at all 19 has ever challenged the definition of exposure; that matter 20 dealing with exposure? 21 A This policy statement was not the subject of hearing* 22 Q Can you answer that question? 23 A Wo* There has been no judicial Interpretation of the 24 law* 58 ] Q And no one has ever challenged that, have they, sir? 2 A There is no weight you could challenge. 3 Q Excuse me, sir. Could you answer that question, pleasi 4 A I am not aware of it. 5 Q All right. Now, what this is, this is published and 6 it does control and is the policy of the EPA and they tell you 7 this is the way they are going to administer this law. Isn't 8 that correct, sir? 9 A No, it is not correct, Mr. Carr. This does not control 10 the law. 11 Q Does it tell you the way they Intend to enforce the 12 law? 13 A It is a statement of EPA policy. 14 Q And what other word goes before policy? You didn't 15 read that. It is statement of interpretation and enforcement 16 policy, is it not, sir? 17 A That is in here, yes. 18 Q And this is the way the EPA tells you they intend to 19 enforce and the way they intend to enforce it. Isn't that 20 correct, sir? 21 A Well, they say that the action is -- statement of 22 policy. Over here in the middle column -- 23 Q Could you please answer that question, Mr. Park? 24 A They refer to it as a policy statement. 59 1 Q Would you please direct the witness to answer that 2 question, Your Honor? 3 THE COURT: Mr. Park, you have to answer that ques 4 tion. 5 A (By the Witness) I have to answer no. They refer to 6 as a policy statement. 1 am reading in the middle column, 7 Mr. Carr* 1 guess the second full paragraph. It says, "Pursu 8 to some question over the definition and nature of guidance, 9 this document is now described more accurately as a policy 10 statement." 11 Q (By Mr. Carr) And what' does it say when they enacted 12 it, the very second paragraph at the top, sir. What does it 13 say tinder action? 14 A "Action; Statement of interpretation and enforcement 15 policy." 16 Q Thank you, sir. And this policy they told you is in 17 effect as of the date of the publication. Didn't they, sir? 18 A I don't see it, Mr. Carr. 19 Q First column, fourth paragraph of Exhibit 880. 20 A Yes. That is correct. 21 Q And the date of publication was March 16, 1978, wasn't 22 it, sir? 23 A That is correct. 24 Q And this policy, therefore, was in effect at the time 60 1 o the Sturgeon spill. Wasn't it, sir? 2 A I believe that la correct. 3 Q And it was in effect at the time that you met in May 4 of 1979. Wasn't it, sir? 5 A That is correct. 6 Q And until challenged In court by somebody this does 7 control those who come under the jurisdiction of the Act. 8 Doesn't it, sir? 9 A No, it does not. 10 Q It does not? II A No. 12 Q Do you mean to say that you at Monsanto believe that 13 you can refuse to follow this policy? 14 A This policy is not enforceable. 15 Q Could you answer that question, please, sir? 16 A Anyone could decide to follow the law which might be 17 different from the policy. 18 Q Your Honor, would you direct the witness to answer 19 that question. 20 THE COURT: Mr. Park, you have to answer the question 21 as it is posed to you. 22 A (By the Witness) Yes, it Is possible. 23 Q (By Mr. Carr) And if you do, you would subject your* 24 self to action on the part of the EPA if they wanted to take 61 1 action* Couldn't they, sir? 2 A 1 would think not. 3 MR* MUSGRAVE: I object to that, Your Honor, as being 4 vague and indefinite. It depends upon what action was taken 5 in what context* There is no way that question can be answered 6 It ia pure speculation without facts as to what action might be 7 taken and not to be in accordance with the policy and whether 8 the EPA would decide their policy was or wasn't a proper 9 Interpretation of the law and would decide to challenge or not. JO That is totally speculative and conjecture and an improper 11 question. 12 THE COURT: Overruled. I think it is directed to the 13 capacity of EPA to take action, not whether they would or not* 14, Overruled* Mr* Park, please answer the question. 15 A (By. the Witness) Your Honor, I 'm sorry, but I can't 16 recall it* 17 THE COURT: I didn't hear your last words. 18 A (By the Witness) I can't recall what the question was* 19 THE COURT; Would you read it back once, please? 20 (Question read.) 21 A (By the Witness) I would think the EPA would not take 22 action so long as we were In compliance with the law. 23 MR* CARR; Your Honor, would you direct the witness 24 to answer the question? 62 I THE COURT; Mr* Park, you have had the question 2 read to you. You have to answer it as it is posed to you. 3 A (By the Vltness) No, 4 Q (By Mr, Carr) The EPA you don't believe has the 5 capacity to bring action against you if you refuse to follow 6 their policy and the law as they have interpreted it for your 7 guidance. 8 A This would be a discretionary decision by the EPA. 9 Q Well then, they do have the power to prosecute you if 10 you fail to follow the policy they have set down. Isn't that 11 correct, sir? 12 A Conceivably they could attempt to do so. 13 Q Then they could prosecute you for it, couldn't they, 14 sir? 15 A It is conceivable a complaint could be filed. 16 Q And they could prosecute you, couldn't they, if you 17 failed to follow the policy as they set it down, the law as 18 they say it is, the x*ay they have interpreted it? Isn't that 19 correct, sir? 20 A I'm sorry. Maybe I have a semantic difficulty here. 21 But I don't believe they could as long as we were in compliance 22 with the law, 23 Q What you are saying is that you may have decided that 24 their statement was wrong and that you might win the case is 63 1 what you are saying, aren't you, sir? 2 A If they for some reason decide to file a complaint, 3 Q My question was, they could prosecute you if you 4 failed to follow the law as they have interpreted it and 5 follow the policy as they set it down. Isn't that correct, 6 sir? , 7 A I guess that is conceivable. 8 Q Now, have you ever notified the EPA that you do not 9 intend to follow the policy as they have Interpreted it? 10 A No. 11 Q To the best of your knowledge, has Monsanto always 12 followed the policy as they have set.it down in this document? 13 A I don't know that I can answer that because our 14 primary concern is full compliance with the law. 15 Q And are you attesting to comply with it as it has 16 been interpreted and set down by the EPA? 17 A We give our concern and our attention to the law. 18 Q Would you direct the witness to answer that question, 19 Your Honor? 20 THE COURT: Mr. Park, you have to answer the question 21 as it is posed to you. Please do so. 22 A (By the Witness) In every 8E situation we do not 23 refer to the policy because it is not appropriate to every 24 situation. II 64 HR. CARR: Your Honor, would you direct the witness 1 to answer the question? 2 3 THE COURT: Mr. Park, that is not the question that 4 was asked of you. Please answer the question as it was posed. 5 A (By the Witness) Okay. The question was as I recall, 6 do we follow this EPA policy in every instance? 7 MR. CARR: Would you read the question to him again, 8 please? 9 (Question read.) 10 A (By the Witness) I cannot recall an Instance in which 11 we actedoontrary to this. 12 Q (By Mr. Carr) Would you answer the question, please, 13 Mr. Park7 14 A Yes, where it applies. 15 Q Now, part of this policy that you have been attempting 16 to comply with is the section that we have been -- we have 17 started to discuss. Isn't that correct, sir? 18 A Yes. 19 Q And that section that you have been attempting to 20 comply with is the statement that as far as the human health efi 21 that are listed below, they are so serious that relatively 22 little weight is given to exposure. The mere fact the impli 23 cated chemical in commerce constitutes sufficient evidence of 24 exposure. Isn't that correct? 65 1 A That Is part of the policy statement. 2 Q That Isn't what I asked yoa though. 3 A I 'm sorry. 4 Q Would you read the question that I asked him? 5 (Question read.) 6 A To the extent this would be applicable to a given 8E 7 meeting or situation we would -- we would follow It. 8 Q And this -- It Is a poor blow-up, but nevertheless It 9 does set out that part of the law or this policy statement 10 that we are now discussing. Isn't that correct, sir? 11 A Yes, that Is a sentence from the statement. 12 Q Could we mark this Plaintiff's Exhibit, whatever the 13 number might be? 14 (Plaintiff's Exhibit No. 1293 15 was marked for identification.) 16 MR. CARR: Your Honor, I will offer into evidence 17 Plaintiff's Exhibit 1293. 18 MR. MUSGRAVE: Same objections as previously made 19 at the bench, Your Honor, and also would object to cotinsel -- 20 you want to wait until it is introduced before it is shown to 21 the jury? Thank you. 22 MR. CARR: Your welcome. 23 MR. MUSGRAVE: I object to counsel taking out of 24 context one sentence from a policy of many pages for purposes 66 1 of emphasis because it ia misleading and not representative, 2 out of context of what was Intended by the one sentence or two 3 sentences that he has taken out. 4 THE COURT: Your objection Is overruled on both 5 points. It Is admitted over objection. 6 Q (By Mr. Carr)- Now, Mr. Park, this statement that you 7 have attempted to comply with provides that the -- and we have 8 no quarrel with that meaning. That meaning Is clear, isn't it, 9 sir? ! 10 A (By the Witness) I don't feel it Is clear, Mr. Carr. II Q Well, do we have a problem with the -- 12 A It Is Inconsistent in its wording. 13 Q Do you understand what the words ''mere fact" mean, sir? 14 A Of course, I do, Mr. Carr. 15 Q And "the implicated chemical". That is the chemical 16 that we are talking about that is contaminated with dioxins. 17 There is no quarrel about the meaning of that word,is there,six 18 A I think that is unclear in the context of the policy. 19 Q Well, it is unclear as to what the words "implicated 20 chemical" mean. Is that what you are saying, Mr. Park? 21 A That is what I said, Mr. Carr. 22 Q Mr. Park, and have you always, you being the one to 23 interpret this law for (thla committee for Monsanto since 1977, 24 since 1978 when it was published, have you always believed that 67 it Is unclear as to what the words "implicated chemical" mean? 1 A I think there is a feeling among environmental lawyers 2 in general that this is an unclear policy. 3 4 Q Have you always believed that it is unclear as to 5 what "implicated chemical" means? A Except insofar as it applies to toxicity studies of 6 7 a given chemical. Q You think this only applies to studies as to whether 8 9 or not a chemical is toxic? A I feel -- 10 11 Q Is that what you are saying, Mr. Park? 12 A I feel that this policy statement was directed -13 (Whereupon Mr. Carr and Mr. Musgrave 14 spoke at the same time which caused their remarks to be unintelligible and not reported in this record.) MR. CARR; I asked if what I said is what he is saying. Is that what you are saying, Mr. Park? A (By the Witness) I think it is primarily directed toward toxicity studies. Q (By Mr. Carr) Well now, you said primarily, but I iidn't say primarily. Are you saying that this policy state- lent that we are discussing and the implicated chemical only .s talking about toxicity studies of the chemical Itself and 68 not the manufacture of the chemical and sending It out into 1 commerce. 2 A I think this wording here is directed toward toxicity 3 4 studies of a given chemical or a chemical that is implicated 5 by epidemiological studies. 6 Q And the chemical to be implicated then in Monsanto's 7 judgment has to be one that has been studied through an 8 epidemiological study. Is that what you are saying? 9 A That is right. A chemical that has been -- 10 Q Where in the EPA policy does it say that the implicated 11 chemical has to be one that has been sent out in the public 12 and a large enough group of people that it can cause damage 13 or not damage to and then, only then the industry has to pay 14 attention to the TCSA law? Where does the EPA statement say 15 that? Where does the law say that? 16 A I don't think it says that exactly. 17 Q Did you ever read a court decision that says this 18 applies only in the case where the chemical has been studied 19 with an epidemiological study? 20 A There are Implications in the policy -- 21 Q Is that what you are saying, sir? 22 A There are implications in the policy Itself. 23 Q Is that what you are saying, sir? 24 A Yes. There are implications in the policy. 69 1 Q And, Mr, Park, what you are saying then, has there ever 2 been an epidemiological study undertaken with 2,4 dlchlorophenu 3 that contains 5 parts per million of dioxin to your knowledge? 4 A I am not aware of one. S Q Then a chemical in your Judgment that contains 5 parts 6 per million of dioxin Is not subject to this law. Is that 7 correct, sir? .8 A X would not say that. 9 Q You would not say that. Then It is subject to the law, 10 isn't it, sir? 11 A All chemical substances are subject to the Toxic 12 Substances Control Act. 13 Q Indeed it is. And when the implicated chemical is one 14 that contains toxic substances it is covered by the law. IS Isn't it, Mr. Park? 16 A The word indicated is a funny word. It is not in 17 the law. 18 Q It is not very funny. Implicated simply means the 19 chemical that is involved in or implicated with these terrible 20 health effects. That is what it means. 21 A And that is why we get back to studies, Mr. Carr. 22 The studies that Implicate -- 23 Q Is there any question but what the words "implicated 24 chemical" means and refers to that chemical substance that can 70 1 cause these injurious health effects? Any question about that, 2 sir? 3 A Well, the policy, of course -- 4 Q Now, Mr. Park, is there any question about that in 5 your mind, but that that is what that word means, those two 6 words mean? 7 A The two words "implicated chemical" -- 8 Q Means a chemical that contains in its substances, part 9 of its chemical make-up are contaminates that can cause the 10 serious human health effects* 11 A In the policy the "implicated chemical" I feel is one 12 that has been Implicated as causing new previously unknown 13 health effects through -- I think Section 6 of the policy gets 14 that pretty dearly* 15 i Q Mr. Park, is what you are saying then that since the 16 health effects of dioxin is pretty well known and they are not 17 i new, they have been known since et least 1949 when tha Monsanto 18 workers were exposed to it in an accident that took place at 19 Hitro, Vest Virginia, and prior to that time for that matter, 20 since those health effects have been known since then they ere 21 not new and, therefore, the fact that the health effect of TCDD 22 is known and, therefore, it is in your chemicals, that you do 23 not have to tell the EPA that the toxic substance is in the 24 chemicel* Is that what you are saying, sir? 71 A No. 1 Q 1 didn't think you were saying that becauso you don't 2 3 naan that, do you, sir? And wo established yesterday, did we 4 not, sir, that if this chemical has In it a contaminate that 5 you didn't know about and the EPA didn't know about and that that chemical is one that can cause the serious health effects, 6 7 it is covered by the Act, Isn't It, sir? A I 'm sorry, but, of course, there are exclusions in the 8 9 Act. It might or might not be. Q Oh, Hr. Park, didn't we establish It yesterday when we 10 went through the business of cyanide in the tank? Don't you 11 recall that, Hr. Park? 12 13 A X don't recall establishing that the Act would cover 14 the type of situation you have described. IS Q Then Monsanto's position is that It need not report 16 anything to the EPA that any of its chemicals contain dioxin. 17 Is that correct, sir? No matter what the level. 18 A I would not say that that Is Monsanto's position. 19 Q Well, Is it Monsanto's position that they are obligated 20 to report to the EPA that it contains dioxin? Which is It? 21 It has got to be one or the other. 22 A It would depend upon the circumstances, Hr. Carr. 23 Q It depends upon whether or not the implicated chemical Is in commerce, doesn't It, sir? ] A And here you get back -- 2 Q Isn't that correct, air? 3 A Veil, there are other factors. 4 Q What other factor is there Involved in it, sir? Would 5 you tell me that? 6 A Yes, I am trying to answer you, Hr. Carr. There are 7 three criteria that must be met. The first is that the che 8 mical mist be produced by the party considering notification. 9 Q Ve met that. 10 A And be produced for comnercial purposes. 11 Q Sure. We got that. Monsanto produces it. 12 A The. second is that there must be evidence that the 13 chemical presents a substantial risk of injury to health or 14 the environment. 15 Q We have got that, don't we, sir? 16 A No. 17 Q Well, here Is where we -- 18 A Let me finish, Mr, Carr. And third, the EPA mist not 19 already be aware of the information. There are three criteria 20 that must be met. If the three criteria are met, then there 21 is a reporting obligation to the EPA. 22 Q All right. Now, Monsanto produces the chemical. 23 Correct? 24 A Are ve talking specifically now about a -- 73 I Q 2,4 dichlorophenol, orthochlorophenol crude, Santophen. 2 A Yes. 3 Q All right And you are aware o the fact that there 4 is testimony in this case because 1 aslced you to assume it 5 yesterday that there was testimony that these things result 6 from exposure to this chemical and you agreed yesterday that 7 those are serious health effects. So that Is covered, isn't 8 it, sir? 9 A What Is covered, Mr Carr? JO Q That dioxin can cause serious health effects in human 11 beings and we went through it Just this morning that these are 12 serious health effects. 13 MR. MUSGRAVE: Object, Your Honor. It is incorrect, 14 Mr. Carr. You are misleading the witness because the witness 15 is talking about the chemical and you are talking about dioxin. 16 He is talking about the substance, the product, and you are 17 talking about dioxin. You are misleading him and you know it. 18 X object. 19 THE COURT: Overruled. 20 A (By the Witness) Okay* My answer frankly very clearly 21 Is that the chlorophenol does not present a substantial risk `22 of injury to health or the environment. 23 Q (By Mr. Carr) Well, the chlorophenol by itself. 24 A With its constituents. With its contaminates. 74 1 Q No matter how ouch dioxin Is In it, it doesn't pose a 2 health risk. Is that what you are saying? 3 A No. I am saying -- 4 Q Is that what you are saying, sir? 5 A X did not say that. Hr. Carr. 6 Q All right. Then It does depend upon its contaminate, 7 doesn't it, sir? The level of its contaminate. 8 A X am not saying that. X am saying that the chlorophen 9 that was produced in 1979 did not present a substantial risk 10 of injury to health or the environment. 11 Q All of the chlorophenol produced didn't, sir? 12 A In terms of the 8E. 13 Q Xn terms of 8E. Do you know whether or not all the 14 chlorophenol had dioxin in it or not, sir? Do you know that, 15 sir? 16 A Whether all of it had dioxin in it or not. 17 Q That's right. 18 A I believe there were trace amounts. 19 Q And those trace amounts varied from batch to batch, 20 didn't they, sir, from up to 5 parts per million by your own 21 handwritten note. Isn't that correct, sir? 22 A They apparently did vary from batch to batch. I'm 23 sorry. Let me pull out the other note. 24 MR. CARR: Tour Bbnor, it's past noon and I can wait 75 1 until 1:30 for the answer to that question. 2 A (By the Witness) 5ppm dioxin yes. 3 THE COURT: Thank you. Ladles and gentlemen, we 4 will break for lunch at this time. The admonishments that 1 5 have given you earlier will apply during this lunch break and 6 we will resume agaln at 1:30. Court Is in recess. 7 (Luncheon recess taken.) 8 Q (By Mr. Carr) Mr. Park 1 believe we were discussing 9 the. section of the EPA policy dealing with the Implicated JO chemical and I would like to ask you now whether or not any 11 dispute or any vagueness in your mind about what the word 12 "constitutes" or rather what the phrase "in commerce" means? 13 A (By the Witness) Ho. That is defined in the statute. ,14 Q And it means that when it leaves the plant on Its way 15 to a customer it la In commerce, isn't It, sir? 16 A Certainly. 17 Q Yes. How, that doesn't mean to the ultimate user of 18 the product. That is If it is something that is going to be 19 taken by another chemical company or by a drug company and 20 made into another product or further refined. It is not refer** 21 ing just to that. It means any product that leaves your 22 company's premises and sold to somebody else Is in commerce. 23 Isn't It, sir? 24 A Yes. The statute says that, I think, for commercial 76 1 purposes means any product that is produced and put into 2 commerce. 3 THE COURT: 1 didn't hear the last phrase. 4 A (By the Witness) I'm sorry. Any product that is 5 produced and goes into commerce. 6 THE COURT: Thank you. 7 Q (By Mr. Carr) And of course what we are defining 8 "in commerce" is that which leaves your plant on its way to 9 somebody else. When it leaves the control of your plant and 10 it's on its way to an ultimate customer the customer that you II sold it to it is in commerce isn't it sir? 12 A (By the Witness) t would say that would be in commerce 13 Q And if you assume that the tank car in question in 14 this case contained orthochlorophenol crude that was manufac IS tured by Monsanto and sold to a chemical company in the westere 16 part of the country when it left your plant in that tank car 17 on the way to that chemical company it was in commerce wasn't 18 it sir? 19 A Certainly. 20 Q And the same thing holds true for 2,4 dlchlorophenol 21 that is sold to those people that use it whether they use it 22 for oil well additives or for lawn weeds is in commerce as the 23 time it leaves the plant. Isn't that correct sir? 24 A Yes. 77 1 Q Even though It la not yet made into Weed-B-Gon or 2 2,4 D. And the same thing holds true for Santophen even though 3 it's not yet made Into Lysol. It is in commerce, isn't it, 4 sir? When it leaves the plant. 5 A Enroute to a customer? 6 Q Yes. 7 A Yes. 8 Q All right. So there is no dispute about that. The 9 next phrase, "constitutes"; you know what constitutes -- there 10 is no quarrel about what that means, is there? Consists of; 11 is* No quarrel with that meaning, is there, sir? 12 A I don't think so. 13 Q And "sufficient evidence". That means enough proof, 14 doesn't it, sir? IS A Yes. 16 Q And "of exposure" means that people are going to be 17 exposed to it in the state that it is In at that time and in 18 the state -- well, that's far enough. Just in the state that 19 it is in at the time that it leaves the plant. Isn't that 20 correct, sir? 21 A I don't know about that, Nor. Carr. 22 Q Well, Mr. Park, isn't that what it says? When It is 23 placed in commerce, that is when it leaves the plant, that is 24 adequate proof of exposure. Isn't that what it says? 78 1 A Mr. Carr, I feel Chat pulling one sentence out of -- 2 Q Excuse me. Your Honor, would you direct the witness 3 so that we might not spend forever on this subject, direct 4 the witness to answer the question. 5 THE COURT: Please answer the question as it is 6 directly posed to you, Mr. Park. 7 A (By the Witness) Will you repeat the question, please? 8 Q (By Mr. Carr) No, Mr. Park, I won't repeat the ques 9 tion. You know what I said. You know exactly what I said. 10 A I don't remember what you said, Mr. Carr, or I would 11 not have asked you to repeat It. X am concerned that we are 12 getting off on a wrong track. 13 Q Mr. Park, we may be off the track that you want us on. 14 A No. No. 15 Q But you are not asking the questions. I am asking the 16 questions and I am going on a particular point. I want to 17 establish a particular point. The point I want to establish 18 and I am asking you, sir, when It leaves the plant it Is in 19 commerce, isn't it, sir? 20 A We have covered that, yes. 21 MR. MUS6RAVE: That's been covered now about four 22 times. 23 THE COURT: No. It has been asked and answered once. 24 Q (By Mr. Carr) And the leaving of the plant is adequate 79 1 evidence, is adequate proof that someone is going to be exposed 2 to it. Isn't that what that says? 3 A (By the Witness) I can agree with you that that sen 4 tence is in the policy. I think you are misconstruing it Mr. 5 Carr. 6 Q 1 knew *he sentence is in the policy Mr. Park. What 7 I am asking you whether or not what this means is when it 8 leaves the plant when it leaves your gates that that is all 9 the proof you need to show that someone is going to be exposed JO to it. II A I think you are misinterpreting the policy by taking 12 one sentence out of context. . 13 Q I am asking you sir whether or not this phrase means 14 as I stated it to you. 15 A I don't think it relates to a single tank car. 16 Q Mr. Park the chemical goes in a tank car. Doesn't It 17 sir? 18 A It can -- a chemical can be placed in a tank car. 19 Q And If you only make one tank car every five hundred 20 years that contains 2,4 dlchlorophenol or orthochlorophenol and 21 that tank car contains a toxic substance that can imperil or 22 represents a substantial hazard to someone's health it is 23 relevant and it is the chemical we are talking about. Isn't it 24 sir? 80 1 A I don't know. We are talking about Section 8E of TSCA, 2 Q Now Mr. Park you told me it is not sufficient for 3 one tank car and I am asking you it doesn't make any different: 4 how much it is. It could be a bottle couldn't it sir? 5 A X am not talking quantity. I'm saying I think the -- 6 Q Now Mr. Park since we are not talking quantity we 7 are talking about the chemical manufactured by Monsanto. 8 Aren't we sir? 9 A We could be. 10 Q Xn this case. 11 A All right. Yes. 12 Q And it is in commerce isn't it sir? 13 A Yes. 14 Q It is shipped from the plant isn't it sir? And if IS it is shipped from the plant this statement says the mere 16 fact that it is shipped from the plant is all the proof you 17 need to show that someone is going to be exposed to it. Isn't 18 that what that says sir? 19 MR. MUSGRAVE: Object. Mlscharacterizatlon of what 20 it says. Clear mischaracterisation of what It says. It says 21 implicated chemical. 22 THE COURT: Overruled. .Answer the question please 23 Mr. Park. 24 A (By the Witness) No it doesn't. 81 1 Q (By Mr. Carr) And the way you have been Interpreting 2 this law then, you do not agree that this law saya and Monsanto 3 la not following, if I stated the way this law reads and what 4 it means, is it a fair statement to say that Monsanto has not 5 been following that particular Interpretation that I have 6 placed on it? 7 A No. That's incorrect. 8 Q Then you have been following it. 9 A We follow -- -- 10 Q Have you been following it with the interpretation II that I placed on it that the moment it leaves the plant, that's 12 all the proof you need that somebody is going to be exposed 13 to it? Has Monsanto been following that interpretation? 14 A Would you allow me to describe to you what we -- IS Q I will not, Mr. Park. I want you to answer that ques 16 tion. 17 MR. MUSGRAVE: Object to the question as being 18 vague as with regard to what leaves the plant. 19 THE COURT: Overruled. It is not at all vague. 20 A (By the Witness) I don't understand your question 21 then. 22 MR. CARR: Read the question to him. 23 (Question read.) 24 A (By the Witness) If I am required to answer either 82 1 yes or no, X will have to answer no. 2 Q (By Hr. Carr) Your answer Is no. 3 A X would like to explain. 4 Q Now, Hr. Park, Monsanto has placed on this particular 5 phrase its judgment that consideration of the use to which 6 this^ product is going to be put, whether or not It is going to 7 be diluted by further customers or by further use; Monsanto 8 has been considering that, haven't they, sir, in interpreting 9 whether or not a notification is required by Section 8E? 10 Isn't that correct, sir? II A X have a little difficulty. Your question now was, 12 do we consider dilution of the product by the customer -- 13 MR. CARR: Would you read the question to him, 14 please? 15 (Question read.) 16 MR. MUSGRAVE: Object. It's vague; this phrase. 17 THE COURT: Overruled. It's not at all vague. Mr. 18 Park, please answer the question. 19 A (By the Witness) This phrase applies to health studies. 20 Q (By Mr. Carr) Your Honor, would you direct the wit 21 ness to answer the question? 22 THE COURT: Mr. Park, answer the question. 23 A (By the Witness) No. No. Xf X have to answer, no. 24 Yes, sir* 83 1 Q (By Mr. Carr) Then you don't consider the use to 2 which the product is going to be put. Is that correct, sir? 3 You do follow this rule that the moment it leaves the plant 4 someone is exposed to it* Is that correct, sir? 5 A You have asked me two questions. Would you read them 6 back, ma'am, in order, please? 7 THE COURT: Walt a second. Can you rephrase that? 8 X think you have asked two questions. 9 MR. CARR: All right, Your Honor. Then you follow 10 the interpretation that when it leaves the plant someone is 1] exposed. Is that correct, sir? 12 MR. MUS6RAVE: Object. It's been asked and answered. 13 THE WITNESS: I believe it has been answered. 14 THE COURT: No, I don't think so. Overruled. 15 A (By the% Witness) If you will not allow me to explain 16 how we interpret -- 17 Q (By Mr. Carr) Mr. Musgrave will give you that oppor 18 tunity, Mr. Park. 19 A Okay. 20 Q Right now I would like to have my question answered. 21 A If you require me to just go yes or no, 1 have to say 22 no. 23 Q Then you consider what may happen to it after it leaves 24 the plant. Don't you, sir? 84 1 A Yea* 2 Q Now is there anything in this phrase or in the law 3 aa you see it or as you read it9 or in the interpretation the 4 EPA puts on it, that permits you to consider the use to which 5 it is going to be put in determining whether or not there is 6 going to be an exposure? 7 A Certainly* -- 8 Q And will you point that out, please sir? Point out 9 the section where that appears* 10 A It's on the law itself* 11 Q Point that outt please* 12 A Let pie read it here. 13 HR* HUSGRAVE: Do you need a copy of the statute 14 Mr* Park? IS A (By the Witness) Yes* That*s what I*m -- \ 16 Q (By Mr* Carr) If you have the Monsanto Exhibit 881 17 you have a copy of it there. It is attached to it* 18 MR* MUSGRAVE: No that19 not the statute* 19 MR* CARR: There is attached to Monsanto Exhibit 881 20 the section of the statute* 21 THE WITNESS: I do have it* 22 MR* MUSGRAVE: Is that all that you need Mr* Park? 23 THE WITNESS: I think so. 24 MR. MUSGRAVE: I think so. . 85 1 A (By the Witness) The statute reads, "Any person who 2 manufactures, processes or distributes in commerce a chemical 3 substance or mixture and who obtains Information which reason 4 ably supports the conclusion that such a substance or mixture 5 presents a substantial risk of injury to health or the environ 6 ment shall immediately inform the administrator of such infor 7 mation unless such person has actual knowledge that the 8 administrator has been adequately informed of such information. 9 Q (By Hr. Carr) Now, Is there a statement in there, 10 Mr. Park -- 11 MR. MUSGRAVE: Are you going to let him finish his 12 question -- his answer? 13 HR. CARR: 1 asked him to point out the section of 14 the law that he says allows him to Ignore what this says. 15 THE WITNESS: It#s not -- \ 16 MR. CARR: Is there any other section of the law 17 that you rely upon to tell you that you need net pay any atten 18 tion to the policy as published in the Federal Register of the 19 UDA that when it leaves the plant that Is sufficient evidence 20 of exposure? 21 MR. MUSGRAVE: Object. Counsel -- 22 MR. CARR: Or any other section of the law. 23 MR. MUSGRAVE: Object. Counsel assumes In his ques 24 tion that that Is not following the policy of the EPA because 86 1 of his interpretation. Object. That's an improper question. 2 THE COURT: Overruled. Proper cross-examination. 3 A (By the Witness) The law requires that we consider 4 every factor -5 Q (By Hr. Carr) Excuse me. Is there any other section, 6 Mr. Park, is what I am asking you. You have pointed out one 7 section. Is there any other provision in the law that you 8 believe exempts you from considering the chemical as being 9 exposed to people once it is placed in commerce? JO MR. MUSGRAVE: That wasn't your question, Mr. Carr. 11 You asked him if there was a section that he relied upon that 12 said he could look at exposure. That wasn't you question, 13 Mr. Carr. How, you are turning it all around again. Object 1 14 to the question. * 15 THE COURT: Overruled. 16 A (By the Witness) I have pointed to the law as a 17 requirement that we consider every factor. 18 Q (By Mr. Carr) And the EPA in interpreting the factors 19 that you are to consider has said, has it not, If it is going 20 to have substantial Injurious effects to the health of people, 21 then you must decide, you must determine that there is exposure 22 the moment It leaves the plant? Isn't that correct, sir? 23 Isn't that what the EPA has said here? 24 A No. ."-V"^ 1'- ; Vt > 87 1 Q What did the EPA say here then? What does this phrase 2 mean, sir, if it doesn't mean that? 3 A What it means, Mr. Carr, is that either as a result 4 of toxicity studies or the study of population, epidemiological, 5 studies. If it becomes evident that a given chemical or a 6 mixture or a small number of chemicals are causing human healtty 7 effects so serious, and some are listed here, and this is new 8 knowledge, it was not known before, that that information 9 should be reported. Those health effects, as it is stated 10 there, those health effects should be reported. 11 Q Mr. Park, you are talking about toxicity and health 12 effects which we discussed at length this morning. I am talk 13 ing about if those things are present, assume what you say has 14 already been shown, that it Is a new health effect, that you 15 didn't know before it was in the chemical, that it is in there \ 16 and all these epidemiological studies have been done and the 17 scientists said yes, it can be a health effect. What Is there 18 In the law that exempts you from concluding that you must 19 report to the EPA the moment It leaves your plant that it is 20 going to be exposed? What is there in the law that permits 21 you to Ignore this policy of the EPA? 22 A Presence of a contaminate in trace amounts is not a 23 human health effect. 24 Q And what you are saying then, if I understand you 88 1 correctly, that there has to be a health effect and If there 2 Is a health effect, then this applies* Is that what you are 3 saying? 4 A I am saying this applies to human health effects; new S human health effects 6 Q Right. So, If there are human health effects, then 7 you have to consider that the moment It leaves the plant some 8 body Is going to be exposed to that. Is that correct, sir? 9 A This sentence applies -- 10 Q Would you answer that question, please, sir? II A You are rephrasing that sentence, Mr. Carr. 12 Q X am asking you whether or not this sentence applies 13 to the moment you find out that there is going to be health j 14 effects from exposure to that chemical. 15 A You know, I could maybe even broaden what you are \ 16 saying. I -- i 17 Q I am not asking you that, Mr. Park. 18 A Okay. 19 Q I am asking you simply to say, yes, this sentence does 20 apply if there is going to be human health effects or you can 21 say, no, it is not going to apply if there is going to be human 22 health effects. 23 A It does not apply if they are going to be. It applies 24 when you have knowledge. 89 1 Q All right. 2 A New knowledge of hew human health effects. i 3 Q All right then. Once you have knowledge that there 4 are going to be serious health effects as pointed out In the 5 statute, then there doesn't have to be any evidence of expo 6 sure other than the fact that It leaves the plant. Isn't 7 that correct, Mr. Park7 8 A Well, I guess to read the sentence completely, It 9 says, "Relatively little weight to be given to exposure." 10 But this Is not directed toward a single -- 11 Q Your Honor, would you direct the witness to answer 12 the question. 13 THE COURT: Mr. Park, please answer the question 14 as posed. X don't believe that was responsive. i IS A (By the Witness) I'm sorry. I have forgotten the \ 16 sense of the question. Could you repeat It, please? 17 THE COURT: Agnes, could you read It back just once, 18 please? 19 (Question read.) 20 A (By the Witness) The statute doesn't mention human 21 health effects. The policy Is directed toward new human 22 effects, health effects, that have just become known to the 23 notlfler and not yet known to the EPA. The question singly 24 doesn't make sense to me, Your Honor* 90 1 THE COURT; Mr. Carr* 2 Q (By Mr. Carr) Mr. Park, if Che EPA does not know 3 chat your chemical contains in it substances Chat can cause 4 serious harm Co people exposed to it, Chen they don't know 5 it. Do they, sir? If you haven't Cold them that your chem 6 ical contained a toxic like 2,3,7,8 TCDD, they don't know 7 that. Do they, sir? Unless you tell them. 8 A (By the Witness) No. They may well know it. The 9 EPA, of course, has very capable research laboratories and 10 they know a great deal. 11 Q Do you know that they know that Monsanto is producing 12 2,4 dlchlorophenol that contains 2,3,7,8 TCDD and other harm 13 ful dioxins? 14 A I would suspect that they are very well aware that 15 chlorophenols contain dioxin. Yes. \ 16 Q You believe and you know that, sir? 17 A Well, certainly at the time of the Sturgeon spill the 18 EPA was aware then if not before and I suspect they were before 19 that chlorophenolic products might contain small amounts of 20 dioxin. 21 Q Does the fact that and you are aware, of course, that 22 at that time Monsanto took the position that this was a freak 23 occurrence because they claim that the pipes froze up in that 24 very bad winter they had and a worker went out and rapped on 91 1 the pipes and that is the reason that the dioxin got into the \ 2 orthoehlorophenol crude* You are aware of the fact that that 3 is the position Mr. Heineman has taken in this Court Room in 4 front of this jury and has taken elsewhere that that is how 5 the dioxin got in that one tank car. 6 MR. MQSGRAVE: Object. 7 MR. CARR: You are aware of that, aren't you, sir? 8 MR. MUSGRAVE: Object. That is a mlscharacteriza- 9 tion and -- 10 THE WITNESS: I am not aware of that, no. 11 THE COURT: Overruled. It is a proper characterize* 12 tlon. 13 Q (By Mr. Carr) That is not the equivalent to 9aylng 14 that the EPA knows that your chlorinated phenols, the 2,4 IS dlchlorophenol and the Santophen contains dioxin in harmful 16 levels, is it, sir, if it was a freak accident? 17 A (By the Witness) I would suspect that the EPA is aware 18 that pentachlorlnated phenol, that many products contain 19 dioxin. 20 Q That isn't what 1 asked you, sir. I asked you a 21 specific question. Whether or not that freak accident is 22 equivalent to saying the EPA knows that all of your chlorinated 23 phenols contain dioxin routinely In harmful levels? 24 A X am not aware of what is going on in this Court Room 92 1 or elsewhere. 2 MR. CARR: Your Honor, I ask you to direct the 3 witness to answer. 4 THE COURT: Mr. Park, please answer the question. 5 A (By the Witness) Yes. I guess the two are different 6 things. I would feel -- 7 Q (By Mr. Carr) they are not equivalent. Are they, 8 sir? And that Is all I am asking you to s a y ; whether it Is 9 or Is not equivalent. Is that correct, sir? 10 A That the EPA knowledge of dioxin concentrations In 11 chlorinated phenolic compounds Is not the same as, what you 12 say, freezing of pipes at the Monsanto facility. I agree 13 that they are not the same. i 14 Q And you do understand that Dow produces and has pro 15 duced for many years products that are free of detectable 16 V dioxins. You are aware of that, aren't you, sir? 17 MR. MUSGRAVE: Object to that, Your Honor. That is 18 a generalized, vague statement. **Many products" and there is 19 no evidence to support that generalized, vague statement. 20 It's totally improper. Request that the jury be instructed 21 to disregard it. It is also irrelevant and immaterial. 22 THE COURT: Overruled. 23 A (By the Witness) I am not aware of that. 24 Q (By Mr. Carr) Are you aware that your management 93 1 when they learned of the report of dioxin In the OCP professed surprise that dioxin In these levels were In -- In detectable 2 3 levels were In the products. Are you aware of that, sir? 4 A I don't remember that. 5 Q You don't remember that. Are you aware of the fact 6 that because they said they were surprised that your manage* 7 ment ordered an Investigation and analysis to take place on 8 all the chlorinated phenol produced by Monsanto and that this 9 exhibit which X have shown you before, 1135B, was published, 10 put out by Monsanto for your confidential ln*house knowledge 11 as to the level of dioxins In the products? Did you know that, 12 sir? 13 A Mr. Carr, I may have. I read many things and I can 14 recall very few specifics after a year or two. 15 Q Well now, Mr. Park, If Monsanto didn't know that the V* 16 dioxin was In their product, how do you expect the EPA would 17 know that Monsanto Is producing products that contain dioxin 18 levels in parts per million? 19 MR. MUSGRAVE: Object to the use of the vague term, 20 "Monsanto didn't know dioxin." It Is contrary to the testi 21 mony and the evidence that has been here in the Court Room, 22 Your Honor. Surprise with regard to tetras. Mr. Carr knows 23 that very well with regard to OCP crude. 24 THE COURT: Overruled. 94 1 A (By the Witness) It's my understanding that part of 2 this is from a little contact with EPA people and X guess 3 reading EPA documents from time to time, but that the EPA 4 chemists, people in their laboratories, do have pretty good 5 familiarity with different chemical processes. 6 Q (By Mr. Carr) They have to, Mr. Park, in order to 7 interpret the things that you send them. 8 A And they -- 9 MR. MUSGRAVE: Mr. Carr, could the witness finish 10 his answer, please? 11 A (By the Witness) And they have determined that cer 12 tain processes, I can't list them all right here, can generate 13 dioxin and that some products, therefore, can contain trace 14 amounts of dioxin. 15 Q (By Mr. Carr) It is a chemically known fact that if V 16 you have a dirty manufacturing process you can contaminate the 17 product with dioxins. Now, that is a known fact. That's in 18 the chemistry books. 19 MR. MUSGRAVE: Object to that. 20 MR. CARR: It is a known fact from 1976 that your 21 product, because you use caustic in producing it, did indeed 22 create dioxin at harmful levels. That is also known. Now, 23 Mr. Park, what makes you think that EPA knew that Monsanto 24 was thusly producing dioxin if Monsanto has never notified 95 1 them? MR. MUSGRAVE: Object to counsel's speech in making 2 3 a statement with regard to production of dioxins at harmful 4 levels. Request that it be stricken and the jury be instructed 5 to disregard it. 6 THE COURT: Overruled. It's not a speech. It's a 7 proper question. 8 A (By the Witness) There were not harmful levels of 9 dioxin in the product to the best of vsy knowledge. 10 Q (By Mr. Carr) And you have been relying on that, 11 haven't you, Mr. Park, In every TSCA meeting you have ever 12 had? Haven't you, sir? Without ever knowing the levels. 13 A That's false, Mr. Carr. 14 Q All right, Mr. Park. Back to my question. Did you at IS Monsanto in functioning in your committee ever notify the EPA \* 1 16 that dioxins at whatever the levels were were contained in 17 your product? 18 MR. MUSGRAVE: Object. 19 MR. CARR: 2,4 dlchlorophenol, Santophen or ortho- 20 chlorophenol crude or parachlorophenol. 21 MR. MUSGRAVE: Object. It's been asked and answered. 22 THE COURT: It has been asked and answered. 23 Q (By Mr. Carr) Well then, your answer is that you 24 never notified them, If 1 understand you correctly. 96 ] MR. MUSGRAVE: Object. That's been asked and 2 answered, Mr. Carr. The Court sustained my objection. 3 MR. CARR: Your Honor, I want to establish that as 4 a predicate to my next question. 5 THE COURT: Go ahead, Mr. Carr. 6 Q (By Mr. Carr) I am correct in the statement that 7 Monsanto has never notified the EPA. We established that this 8 morning. 9 MR. MUSGRAVE: Under 8E, Mr. Carr. 10 Q (By Mr. Carr) Under 8E. 11 MR. MUSGRAVE: To this witness's knowledge. 1 2 . Q (By Mr. Carr) Isn't that correct, Mr. Park? 13 A (By the Witness) About dioxin content? 14 Q Yes. 15 A Yes, to the best of my knowledge. 1 \ 16 Q How, you do know that the EPA depends upon -- let me 17 back up a minute. EPA is a governmental agency that has a 18 certain amount of funds to do its job. It is responsible for 19 the entire breadth of the environment in the entire United 20 States, Isn't it, sir? 21 A It has broad responsibility. 22 Q And it is isq>ossible for it to go into every chemical 23 plant and every drug plant and every steel plant and every plarn 24 that may produce things that could harm humans and the environs* 97 ] It's literally impossible for the EPA to police each plant, 2 isn't it? 3 A No, it's not. They do a fine job, 4 Q And what they do, Mr. Park, they rely upon your 5 reporting to them, don't they, sir? 6 MR. MUSGRAVE: Object, Your Honor, to calling upon 7 this witness now to state conclusions as to what EPA does and 8 relies upon. 9 THE COURT: Overruled. 10 A (By the Witness) The EPA personnel come into many of 11 our plants as well as others and take samples and analyze those 12 samples. They blanket the country. 13 Q (By Mr. Carr) Have they come to the Krummrich Plant 14 and taken samples from the Krummrich Plant, Mr. Park? In 15 Sauget, Illinois? v 16 A I would have to check the files on that, I am sure 17 EPA personnel have been at the plant. But I can't off the 18 top of my head recall !-- 19 Q And when has the EPA personnel been at your plant, 20 Mr. Park? 21 A I'd have to think. 22 Q Well, why don't you think? 23 THE COURT: I'm sorry. I can't hear you. 24 A (By the Witness) I'm sorry. I'd have to think a 98 1 minute about that as to exactly when. I'm sorry. I fd have to 2 look that up. 3 Q Do you have any knowledge that they have ever been to 4 the Krummrich Plant at Sauget, Illinois? 5 A I would certainly think they have been. 6 Q I know you would think that, Mr. Park. But I am asking 7 you whether or not you have any knowledge and I will remind you 8 that you are under oath, sir. 9 A I'm sorry. I Just cannot recall specifics. 10 Q You do know OSHA came to the plant and took a sample 11 and perhaps that is what you were thinking about, Mr. Park? 12 A No. I was trying to recall EPA. . 13 Q Have you ever had any knowledge that EPA ever at any \ 14 time took a sample other than the sample that you sent them of 15 the OCP reserve sample when it spilled in Sturgeon? Other thai 16 that, do you have any knowledge of any time that they have evez 17 taken any of your chlorinated phenols and tested them? 18 A No. 19 Q And, Mr. Park, you know that it Is a physical impossi 20 bility for the EPA to do that otherwise we wouldn't need the 21 law, would we, sir? 22 A The law is directed toward prompt notification concern 23 ing new health effects and many of us feel that it serves a vec 24 good purpose. 99 1 Q Mr* Park, I know you like to say that litany, but 2 that isn't what the law says. The law says that chemicals 3 that can be injurious to the health or to the environment and 4 I am not asking you that question. I am asking you, sir, you 5 know the law puts the burden not on the EPA to come into your 6 company and be a Gestapo and go through your books and check 7 your samples. The law puts the burden on the company to 8 notify the EPA. Isn't that correct, sir? 9 A Section 8E does. That's correct. 10 Q Isn't that correct, sir? 11 A That's right. 12 Q It is not the PA's obligation to ferret it out, is . 13 it, sir? 14 A No. > 15 Q And it, therefore, has to depend upon the law; that 16 you will obey the law. Isn't that correct, sir? 17 A Section 8E? 18 Q That's correct, 19 A That's right. 20 Q And if you do not interpret the law -- strike that. 21 Doesn't the EPA have the right to assume that you are going 22 to interpret the law the way they set it out to you unless you 23 notify them in. some form or another that you are not going to 24 follow their interpretation? 100 1 MR. MUSGRAVE: Objection to that question, Your 2 Honor. That is totally improper as to what the EPA has a 3 right to assume, vague people having rights to assume. Vague 4 statements like that, that is totally Improper. I object to 5 It. 6 THE COURT: Overruled. It's a proper question. 7 A (By the Witness) I think I'd answer no. 8 Q (By Mr. Carr) They don't have the right to assume that 9 you are going to Interpret the law as they tell you it should 10 be interpreted. Is that what you are saying, Mr. Park? 11 A That Is correct. Their interpretation is not broad 12 enough for one thing. Doesn't cover every situation. 13 Q It covers every situation where the product leaves 14 the plant, doesn't it, sir? 15 A It's broader than that. v 16 Q Does it except any product leaving the plant from its 17 jurisdiction where that chemical has injurious health effects IS or can have injurious health effects? Does it except, make an 19 exception for any single chemical that meets those qualifica 20 tions? 21 A There is an exception when any of the three criteria 22 are not met. 23 Q My question, Mr. Park, as you know, is directed to the 24 chemical and I am asking you whether or not there is any 101 I exception in the law for the products that are made by Mbnsantc 2 if they leave Monsanto's possession? 3 A Those would be products in commerce and would be 4 covered by -5 Q Is there any exceptions? 6 A -- the statute. 7 Q I'm sorry. 8 A Those products that leave the plant in commerce would 9 be products in commerce covered by the Toxic Substances Con 10 trol Act. II Q And doesn't the EPA have the right to assume that you 12 are. going to consider that you don't need to worry about 13 exposure if the chemical leaves the plant. Don't they have 14 the right to assume that you are going to follow that law? IS MR. MUSGRAVE: Same objection. 16 MR. CARR: Their interpretation of the law. 17 THE COURT: Same ruling. 18 A (By the Witness) That's a misinterpretation of the 19 policy. 20 Q (By Mr. Carr) Is there any other interpretation you 21 can place oh this and I have asked you for it, Mr. Park, and 22 you didn't give it to me. Now I am asking you again. Does 23 the EPA -- there is no quarrel about what these words convey. 24 The meaning they convey to you. They say that if the chemical 102 1 Is one that is going to cause serious health effects you shall 2 consider that the moment it leaves the plant somebody might be 3 exposed to it. Isn't that exactly what it says? 4 A No, it's not, Mr. Carr. 5 MR. MUS6RAVG: Just a second. I object to that, Your Honor. He started off by saying, "I ask you what inter 7 pretation you put on this and you wouldn't give me one." Then 8 he went on to another speech. I object to this continual 9 speech making by Mr. Carr of five or six statements that are 10 not questions, ended then by a question that is not even 11 related to the first part of it. It's totally improper. I 12 object to it. I request that the Court instruct the jury to 13 disregard it. 14 THE" COURT: Overruled. 15 Q (By Mr. Carr) Would you answer that? 16 \ A (By the Witness) And I said no, it was not. I have 17 attempted several times and I have completed a couple of times 18 telling you how you are misinterpreting the policy. The human 19 health effects that are mentioned there on that placard in 20 your hand are new human health effects discovered as a result 21 of toxicity studies or other similar studies, epidemiological 22 studies that indicate a new adverse human health effect of a 23 substantial nature on products that are in commerce. 24 Q And if 1 understand you correctly then, whatever the 103 1 level of dioxin that you may discover In your product just as 2 the level of cyanide yesterday, whatever the level Is since 3 the health effects of dioxin is well known and not new, you do 4 not have to tell the EPA that you are shipping out products 5 that are going to be exposed to people the moment It leaves 6 the plant. 7 A I am saying this wording does not apply to that. It 8 was not intended to apply to product composition. 9 Q My question -- I'm sorry. What? 10 A It was not intended to apply to product composition. 11 It applies to new human health effects* 12 Q It was not intended to apply to the things that go 13 Into the product? The composition of the product? Is that 14 what you are saying, sir? IS A Will you read back what I said? I thought I said it \ 16 clearly, Mr, Carr. 17 Q Is what you are saying that it doesn't apply to pro 18 ducts, the composition of the products? 19 A Perhaps it would be useful to look at other parts of 20 this policy. 21 Q Would you answer that question, Mr. Park? 22 A This is directed toward new human health effects. 23 Q Your Honor, would you direct the witness to answer 24 that question? 104 1 THE COURT: Mr. Park, please answer the last ques 2 tion as it was posed to you. 3 THE WITNESS: Did I not answer that? 4 THE COURT: I don't believe you did, sir. Please 5 answer. 6 A (By the Witness) I am having difficulty following 7 Mr. Carr's questions, Your Honor. Would you repeat it; please? 8 Q (By Mr. Carr) Would you read the question to him? 9 (Question read.) 10 A Yes. It was intended to apply to new human health 11 effects. They are listed further on down. 12 Q And the composition of the product if it is made up 13 of all kinds of poisons, it doesn't apply. Is that correct? 14 A This portion of the policy was not intended to apply 15 to that in my opinion. \ 16 Q And you can ship any product out that you want and 17 contain whatever composition of poisons It might contain and 18 you believe that you need not notify the EPA of that. 19 A 1 am not saying that at all. 20 Q Well, that is what I am asking you, sir. 21 A You did not ask me that. 22 Q Mr. Park, this morning, if I understood you correctly, 23 you said the test for the reporting under the TSCA Section 8E 24 is that it must be produced by a party considering notification 105 1 for a commercial purpose. Did you not, sir? 2 A Well -- 3 Q Didn't you say that this morning, sir? 4 A I don't recall using those exact words. It's roughly 5 -- I think you have them out of order. I would be glad to 6 repeat it. 7 Q No, I really don't need it repeated. ^ 8 A Okay. 9 Q Do you not recall saying that it is a chemical that 10 must be produced by a party for a commercial purpose -- 11 . A That's right. Yes. 12 Q And these chemicals meet that requirement, doesn't it, 13 sir? 14 A Yes. 15 Q And there must be evidence the chemical presents a * 16 substantial injury to health. You said that as well, did you 17 not, sir? 18 A Right. 19 Q And you said that the EPA must not already be aware 20 of the substantial injury to health effect, didn't you, sir7 21 A Or the Information that is being considered for 22 reporting. 23 Q And those are the three things that you said is the 24 test. Is that correct, sir? 106 1 A The three criteria, yes. 2 Q And if I understand you correctly, It is your judgment 3 that the 2,4 dichlorophenol that was the subject of the May 4 meeting does not meet that requirement -- does not meet that 5 test. If I understand you correctly. 6 A That is correct. ^ 7 THE COURT: Did you say that is correct? 8 A (By the Witness) Yes. I 'm sorry. That is correct. 9 Q (By Mr. Carr) We took the liberty at the lunch hour 10 of asking Mrs. Hackmann to check her notes to make sure that 11 we would be correct and we put on this board the criteria that 12 you mentioned. Must be produced by a party considering noti 13 fication for commercial purpose. Must be evidence chemical 14 presents a substantial risk of injury to health. EPA must not 15 already be aware of It. Now, those are the three things. Is \ 16 that correct, sir? 17 A That's correct. 18 Q Can I mark this as an exhibit, please? 19 (Plaintiff's Exhibit No. 1294 20 was marked for identification.) 21 A Mr. Carr, could I -- 22 Q We offer into evidence Plaintiff's Exhibit 1294 if it 23 please the Court. 24 A A slight refinement there -- 107 Q Mr. Park, there Is no question pending. Your attorney 1 will have the chance to refine what he wants refined. 2 3 A Okay. 4 THE COURT: Mr. Musgrave, do you have any objection? 5 MR. MUSGRAVE: I have no objection. 6 THE COURT: Admitted without objection. - 7 Q (By Mr. Carr) Now, the 2,4 dichlorophenol that con 8 tains the dioxin is produced by Monsanto. Correct, sir? 9 A (By the Witness) That's correct. 10 Q And X am asking you to assume that this chemical, the 11 dioxin that is found in this chemical is at levels that pre 12 sent substantial risk of injury to health. Will you assume 13 that, please? 14 A- Well, it -- but that's not true, Mr* Carr. 15 Q Will you direct the witness to assume that is a fact? 16 MR. MUSGRAVE: Object, Your Honor. He is talking 17 about a hypothetical and there is no evidence with regard to 18 this hypothetical under TSCA reporting. 19 MR. CARR: There is weeks, months, years of evidence, 20 Mr. Musgrave. 21 MR. MUSGRAVE: Mr. Carr, you are talking about 22 specific chemicals, specific mixtures. 23 MR. CARR: I am talking about dioxin. 24 MR. MUSGRAVE: You are talking about 8E, Mr. Carr. 108 1 I object to it, Your Honor. It*a an Improper hypothetical 2 given the framework of the question. 3 THE COURT: Objection is overruled. Mr. Park, you 4 have to assume it. You are ordered to assume it. 5 THE WITNESS: Your Honor, can I -- am I to under 6 stand that I am being put in the position to say, okay, assume 7 that your client is guilty -8 THE COURT: No. Mr. Park, that is a total mis- 9 characterlzatlon of what you have been asked to assume. You 10 were told to assume, requested to assume what was argued to 11 me and which I have decided it is proper for you to assume is 12 what was stated to you by Mr. Carr. No more and no less and 13 It is absolutely not analogous to what you just stated to me. 14 Now, assume what he told you to assume, sir. 15 THE WITNESS: You are telling me to assume -r \ 16 THE COURT: No. I am ordering you to assume, sir. 17 A (By the Witness) No. I am asking Mr. Carr now. You 18 are asking me to assume that there is evidence that a Monsanto 19 product presents a substantial risk of injury to health or 20 the environment. 21 Q (By Mr. Carr) I am asking you to assume that dioxin 22 in the 2,4 dichlorophenol produced by Monsanto is at such 23 levels as it can cause serious health effects. That is what 24 I am asking you to assume. 109 1 MR, MDSGRAVE: Well, Your Honor, I hate to keep 2 Interrupting, but if he is going to ask him to assume facts 3 with regard to an interpretation of 8E, then he must ask him 4 to assume facts that track the language of the statute, Your 5 Honor, or it's totally improper and that is exactly where Mr. 6 Carr is trying to go. And now he is watering down and chang 7 ing the language that he is using here and it*s totally im 8 proper. 9 THE COURT: Would you read back the original request 10 that he was asked to assume? And that is what you are ordered 11 to assume. 12 (Question read.) 13 A (By the Witness) I don't believe that to be the case. 14 THE COURT: Mr. Park, you have been ordered to assume 15 it. Mr. Carr, you may move on. X 16 Q (By Mr. Carr) And assuming that to be so, the second 17 requirement has been met, hasn't it, sir? 18 A (By the Witness) I don't know whether it ha3 or not. 19 I don't know. 20 MR. CARR: Your Honor, the witness is obviously not 21 assuming that which the Court ordered him to assume and I am 22 at a loss how to proceed other than to ask the Court to have 23 some sanction against the witness, but X am reluctant to do so. 24 THE COURT: Gentlemen, can you approach the bench for 110 I a minute? 2 (The following proceedings were 3 had at the bench outside the 4 hearing of the jury.) 5 THE COURT: There Is no excuse for a licensed 6 attorney not to follow an order of this Court. I am willing 7 to take a five minute recess and you had better tell your 8 witness remind him of the contempt powers of this Court If 9 he does not follow the orders of this Court. I think unfor 10 tunately Mr. Carr's characterization happens to be right and 11 I don't want to hold anyone especially a fellow attorney 12 in contempt. But I don't want to be put in a situation where 13 I have no choice. You are experienced competent counsel. X 14 think you better tell him where he is headed. We'll take a 15 five minute recess. \ 16 MR. MUSGRAVE: Thank you. 17 (The following proceedings were 18 had In the hearing and presence 19 of the Jury.) 20 THE COURT: Ladies and gentlemen we are going to 21 take a short recess at this time. The admonishments I have 22 given you earlier will apply during this recess. Court is in 23 short recess. 24 (Short recess taken.) 111 THE COURT: Mr. Carr, you may proceed. 1 Q (By Mr. Carr) Yea, Your Honor. How, Mr. Park, will 2 you now assume as I hove asked you to assume earlier that there 3 1$ evidence that this chemical presents a substantial Injury 4 to health? Will you do that, sir? 5 A (By the Witness) A substantial risk of Injury to 6 health and the environment? 7 Q Yes. 8 9 A Okay. On the assumption that this product presents a substantial risk of Injury to health and the environment, then 10 criteria number two would have been met. 11 Q Would you read the exact question back to him? Did 12 13 you assume that which I asked you to assume, Mr. Park, because 14 you modified the language somewhat? A I was trying to track IS 16 Q 1 know.' But Z want you to answer the question as X 17 gave it to you, sir. Whuld you read that question back to him again? 18 19 (Question read.) 20 MR* MUSCRAVE: I 'm sorry. I couldn't hear you. This 21 is a different question that he just asked. 22 Q (By Mr. Carr) Doctor, let me ask It again In this 23 fashion. If you assume that dioxin has been found in this 24 chemical at such levels that it presents a risk to the health I 112 of human beings, is the second criteria of your three criteria 1 for tests met? 2 3 A In my opinion, not yet. Without consideration of how 4 health or the environment would be subject to substantial risk, 5 Q Well now, I asked you to assume, and that is the rea son X am going back to this. 1 have asked you to assume and 6 7 the Court has ordered you to assume it does. MR. MUSGRAVE: You Just asked him if in his opinion, 8 9 Mr. Carr -- 10 Q (By Mr. Carr) 1 am asking you whether or not this 11 has been met when the dioxin level in that chemical presents 12 a substantial risk of injury to the health of the people. 13 A (By the Witness) You did, Mr. Carr. I am wrestling 14 with this the best I can. You are not following what I feel 15 is the entire scope of the second criteria. I think there is 16 more to it and so my answer is, no, X think a little more 17 would have to be considered. 18 Q Now, you are assuming that the dioxin in this chemical 19 is going to injure people. It is a substantial risk to the 20 health. You are assuming that. Aren't you, sir? 21 A Perhaps 1 am having difficulty understanding your 22 hypothetical. There must be some method of bringing the 23 toxicity to the people. 24 Q Now, Mr. Park, we have gone through that already. Thai 113 1 Is exposure. You are talking about exposure now. 2 A Yes. 3 Q And the EPA says the sere fact that it Is in commerce 4 Is sufficient evidence of exposure. Doesn't it, sir? 5 A Not as applicable to this type of situation, Hr. Carr. 6 I tried to explain that awhile ago. 7 Q If the people, if the tank car breaks down on the way 8 to wherever It is going, is there going to be exposure, sir? 9 A There should not be if it is properly handled. 10 Q Will there be exposure, sir? If properly handled. Is II there anything In EPA that says properly handled? Doesn't it 12 say -- isn't the meaning of it to protect the public against 13 the hazards that are existent in that chemical, sir? Isn't 14 that what it is all about? The entire intent of the Act is to 15 protect us if there is an accidental escape or if it does get \ 16 involved in products that people are going to be exposed to. 17 Isn't that what it is all about, Mr. Park? 18 A Mr. Carr, you have asked me about three questions right 19 then. I think the first one was -- 20 Q Assume if you will that there will be exposure. Will 21 you assume that, please, sir? Assuming that there is exposure 22 Is this prerequisite then met when I ask you to assume that 23 dioxin is in the chemical and that that will cause -- presents 24 a substantial risk of injury to the health of the people to 114 1 whom It will be exposed -- who will be exposed to that. 2 A I am to assume exposure -- 3 Q Yes. 4 A -- to humans. 5 Q Yes. 6 A And you are saying that this product now is o such 7 a toxicity that it presents a substantial risk of injury. 8 Q That the dioxin in the chemical presents a substantial 9 risk of injury to the people. 10 A If the dioxin content were to be so high? II Q That it presents a substantial risk of injury to the 12 people, yes. 13 A And there is exposure of people? 14 Q Yes. IS A I guess so, and with those assumptions, I would have 16 to answer yes. \ 17 Q And we have already established that the EPA is not 18 aware of the fact that the 2,4 dichlorophenol contains such 19 levels of dioxin. Haven't we, sir? 20 A Perhaps with someone else, Mr. Carr. 21 Q Will you direct the witness to agree that he Just 22 testified before the break that he hasn't notified the EPA and 23 that nobody else has to his knowledge and EPA has never tested 24 any samples? 115 1 ,THE COURT: Could you phrase an assumption? Some 2 thing you would like him to assume* 3 Q (By Mr. Carr) Yes. Will you assume, please, that 4 Monsanto has never advised the EPA that the 2,4 dlchlorophenol 5 contains these high levels of dioxin, that the level is at 6 such levels that it may be injurious to the health? Will you 7 assume that, sir? 8 MR. MUSGRAVE: I object to that, Your Honor. Number 9 one, It is not his prior testimony. He has previously testi 10 fied to his knowledge. There has been no notification under 11 8E with regard to dioxin and 2,4 di and Mr. Carr is now asking 12 him to assume a Monsanto product that has high levels that 13 are injurious to health and that is not in evidence.. Those 14 are ultimate conclusions of fact in this case for the jury in 15 any event. It invades the province of the jury. It is an \ 16 improper hypothetical. It assumes facts not in evidence. 17 THE COURT: Overruled. It does not invade the pro 18 vince of the jury. It is a proper hypothetical with the 19 Inclusion of the notice under 8E and your objection is over 20 ruled. 21 Q (By Mr. Carr) Then if that is true, Mr. Park, these 22 criteria have been met, haven't they, sir? 23 A (By the Witness) The EPA could have been made aware 24 of it, sir, through some other source. 116 I MR. CARR: Your Honor, would you direct the witness 2 to answer the question? 3 THE COURT: You have to answer the question as It 4 Is posed to you. I ruled with the Inclusion of 8E notice that 5 the assumption that is posed to you la correct and it has to, 6 therefore, be accepted by you. So, answer the question on 7 that basis with that in mind, Hr. Park. 8 A (By the Witness) May I Just point out that the EPA -- 9 THE COURT: Mo, sir, you may not. X am directing 10 you to answer the question as it Is posed to you. 11 A (By the Witness) Okay.* All the criteria may not yet 12 have been met. 13 Q (By Hr. Carr) And did we meet number one? 14 A Yes, we met number one. 15 Q Z)ld we meet nucber two? \ 16 A On the basis of the assumptions, yes. 17 Q Did we meet number three? 18 A That is the one that I said may not have been met. 19 MR. CARR: Your Honor, would you direct the witness - 20 MR. MUSGRAVE: He assumed your fact, Mr. Carr. Mow 21 you asked him whether it's been met and he said no. 22 MR. CARR: Mow he is quarreling with it. He Is now 23 saying that It may have been met. 24 MR. MUSGRAVE: You are quarreling with him, Mr. Carr. 117 1 You are arguing with the witness. 2 THE COURT: Well, I am not really clear. Co^ld the 3 two of you approach the bench for a minute, please? 4 (The following proceedings were 5 had at the bench outside the 6 hearing and presence of the 7 Jury.) 8 THE COURT: I may have lost him partway In one of 9 his answers. He said that one and two were met, but not three 10 MR. MUSGRAVE: Yes. Mr. Carr asked him to assume a 11 fact. He assumed it and then he said is three met and he said 12 no. 13 THE COURT: Okay. 1 know what went up to that. I 14 just wanted the last. He drops his voice so much I had 15 trouble understanding the last thing that he said. Okay. Why 16 don't you proceed then? \ 17 (The following proceedings were 18 had in the hearing and presence 19 of the Jury*) 20 Q (By Mr. Carr) To your knowledge, Mr. Park, has any 21 body informed the EPA that your 2,4 dlchlorophenol contains 22 these levels of dioxin? 23 MR. MUSGRAVE: Under 8E, Mr. Carr? 24 Q (By Mr. Carr) Under 8E. 118 1 A (By the Witness) No. 2 Q Then these criteria have been met to your knowledge. 3 Isn't that correct, sir? 4 A Hr. Carr, I was just saying EPA might gain the knowled] 5 through some other source. 6 Q You have any knowledge of that, Mr. Park? 7 A No. 8 Q Then to your knowledge these criteria have been met, 9 haven't they, sir? 10 A I have no knowledge that Monsanto notified them. The n EPA does -- 12 - Q Do you have any knowledge that anybody else has noti~ 13 fied them that 2,4 dichlorophenol manufactured by Monsanto had 14 these levels of dioxin in it? Do you have any knowledge that 15 anybody else told them that? 16 A I don't. % 17 Q Then these criteria have been met, haven't they, sir? 18 A On the basis of that assumption, I would say yes. 19 Q Now, have you at Monsanto relied upon some outside 20 person telling the EPA that your 2,4 dichlorophenol contains 21 hazardous levels of dioxin? 22 MR. MUSGRAVE; Same objection; assumes facts not in 23 evidence. 24 THE COURT; Same ruling. It is overruled. 119 A (By the Witness) For what? 1 Q (By Mr* Carr) For an 8E notification* 2 3 A Oh* No, we haven't*. 4 Q Or to give them knowledge that your product contains 5 these high levels of dioxin? A We have not relied upon someone else to notify the EPA. 6 7 Q And you haven't notified them? 8 A Ho* The EPA may have generated this information them 9 selves* 10 Q Now you are speculating again, aren't you, Mr. Park? II A 1 hove been speculating the whole time* 12 Q And you have no knowledge of that which you are specu 13 lating about* Isn't that correct, sir? 14 A That is wrong* I do have some knowledge of the EPA 15 research capabilities. 16 Q EPA does know that 2,4 dlchlorophenol produced by 17 Monsanto contains hazardous levels of dioxin. Do you have that 18 knowledge? Where is it? 19 A I have knowledge that the EPA researchers know a great 20 deal about the different processes in use in the country today. 21 Q Mr. Park, will you tell me wherein they know this batch 22 of 2,4 dlchlorophenol contained these high levels of hazardous 23 tetrachlorodlbenzo dioxin? 24 A Which batch? 120 1 Q Any batch, sir. 2 MR. MUSGRAVE: Object to counsel's Inference that 3 any batch contains high levels. It is vague and indefinite 4 and it is counsel's testimony. 5 THE COURT: Overruled. 6 A (By the Witness) It Is my- assumption that the EPA is 7 aware they chlorinate -- 8 Q (By Mr. Carr) I am not asking for your assumption. 9 Mr. Park, ve can go forever on your speculation. I am asking 10 your knowledge, sir. 11 A Knowledge of what, Mr. Carr? 12 THE COURT: Mr. Park, I am directing you to answer 13 the question. 14 THE WITNESS: Did I not answer that last question? 15 THE COURT: No, sir, you did not. s 16 MR. MUSGRAVE: Do you have the question in mind, 17 Mr. Park? 18 THE WITNESS: No, I do not. I'm sorry. I am trying 19 to reconstruct it. 20 THE COURT: Can you read it back once, please? 21 (Question read.) 22 A (By the Witness) I don't know that the EPA would have 23 been Informed about the exact contents of each batch. 24 Q (By Mr. Carr) As a matter of fact, Mr. Park, isn't it 121 1 a fair statement, that you and others at Monsanto believed that 2 if you would inform the government agencies that there were 3 levels, parts per trillion or quadrillion or whatever, what 4 ever level that you were afraid that if you Informed the 5 government that some how or another this would get out to the 6 public and the press would learn about it and print it up? 7 A Absolutely not* 8 (Plaintiff's Exhibit No. 1295 9 was marked for identification.) 10 Q Handing you what has been marked Plaintiff's Exhibit II 1295 and ask you if you recognize that as a memo prepared by 12 you at the same time you were considering notification to the 13 EPA as we have just discussed on June 11, 1979? 14 MR. MUSGRAVE: Can I take this down so I can see the 15 witness? 16 MR. CARR: Surely. Does it bear your signature, 17 Mr. Park? 18 A (By the Witness) Yes. .This is a copy of my memorandum 19 It was later than this other event. 20 MR. CARR: Offer this exhibit Into evidence if it 21 please the Court. 22 MR. MUSGRAVE: What is the number on It, please? 23 THE COURT: 1295. 24 MR. MUSGRAVE: No objection, Your Honor. i 122 1 THE COURT: Admitted without objection. 2 Q (By Hr. Carr) Now, Hr. Park, this memo that you pre 3 pared on June 11, *79, did you not say relating to the news 4 media infatuation with dioxin that, "It Is a contaminate in `5 some products and In some instances Is highly toxic, but this 6 does not mean that an all-out effort should be made to detect 7 extremely low levels of dioxin in a product after it has been 8 determined that any dioxin present is less than the highest 9 non-hazardous level." 10 A (By the Witness) Yes. 11 Q And did you not conclude on that page with saying, 12 "I am afraid that disclosure to governmental agencies or the 13 public that a contaminate has been detected in a product at 14 parts per trillion or parts per quadrillion levels far below 15 the non-hazardous level will merely add fuel to the media fires \ 16 which already burn furiously." Didn*t you say that, sir? 17 A Yes, I did. 18 Q Now, Hr. Park, has not that been the policy of Monsanto 19 with relation to reporting the existence of TCDD or any other 20 dioxin in your chlorinated phenols from that time to the pre 21 sent time? 22 A Under 8E? 23 Q Under any policy, sir? 24 A It has not. This merely expresses ray view. 123 1 Q Do you know of any single Instance when the EPA has 2 been notified from June 11, 1979, to the present time that 3 dioxin is present In its chlorinated phenols at any level? 4 A Off the top of my head, I am not aware of any. 5 Q How far up the corporate ladder did your recommendation 6 as contained in -1295 about public disclosure go? Who is 7 Callls? 8 A This has nothing to do with -- 9 Q Who is Callls? 10 A This has nothing to do with reporting whatsoever, Mr* 11 Carr* 12 Q Who is Callls? 13 MR* MQSGRAVB: Well, I would request, Your Honor, 14 that Mr* Carr's statement then before the question, who is 15 Callls, which is a statement and an improper statement be \ 16 stricken and the Jury Instructed to disregard it* 17 THE COURT: Overruled. 18 A (By the Witness) Callls at this time 1 believe was a 19 director of Environmental Operations* 20 Q (By Mr. Carr) And who is W. D* Carpenter? 21 A I believe he was also a director of Environmental 22 Operations. 23 Q Who is 6* L. Jessie? 24 A I believe that at the time of the memo he was -- I may 124 1 be incorrect about some of these. I am trying to think back 2 five years but I believe he was on the Environmental Policy 3 staff with responsibilities for hazardous waste disposal. 4 Q We know who J. P. Mieure is. Who is W. B. Papageorge? 5 A I believe he was also a director of Environmental 6 Operations. 7 Q And we know who Dr. Roush is and we know who Dr. J. D. 8 Wilson is. Do you know who else besides those and Dr. Paget 9 is mentioned as well. Who else besides those people got a 10 copy of this memo? 11 A I have no idea. You have read the names of those 12 listed on it. 13 Q Do you know of any public disclosure, not just to the 14 governmental agencies, of any public disclosure from that day 15 to the present time in which Monsanto said publicly we have 16 \ dioxins in our products; in our chlorinated phenols? 17 A I can certainly recall times when we have provided 18 information to the public about dioxin. 19 Q I understand that. 1 am asking you specifically have 20 you ever told a governmental agency -- I have asked you that 21 before. Have you ever told the public that the products, the 22 chlorinated phenols produced by Monsanto from June 11, 1979, 23 to the present time contain dioxins? 24 A I believe we did inform customers of some products. 125 I Q What customers did you Inform? A 2 can't recall right now. 2 3 Q Is there a single letter that you know of that you sent 4 to a customer? Did you notify the people that made Lysol? 5 A I wouldn't be aware of that, Hr. Carr. 6 Q Then if you are not aware of It, Hr. Park -- 7 A I would not be Involved In the actual letters. 8 Q Because I am telling you we have never had produced to 9 us such a letter. 10 A I was trying to answer your question. 11 Q My question Is, to your knowledge. Do you have any 12 knowledge at any time with one exception, Diamond Shamrock 13 when they wanted to go to Canada and Canada has got a require 14 ment of either 10 parts per billion or 1 part per billion. 15 Diamond Shamrock then asked you the dioxin content and you \ 16 Informed them at that time. But other than that one exception 17 when they came to you and gave you a direct question from 18 June 11, 1979, to the present time, have you Informed any 19 customers? 20 A That really is not in my area of responsibility and I 21 am not aware. 22 Q Then you have no such knowledge? 23 A That is right. 24 Q Do you have any knowledge from June 11, 1979, to the 126 1 present time that any customer, any governmental agency or 2 the public has been informed that your chlorinated phenols 3 contain dioxin? 4 A I have no personal knowledge 5 Q Did anybody write a memo back saying we are not going 6 to follow this policy, that we are-going to disclose to the 7 governmental agency, we are going to disclose to the public, 8 we are going to disclose to the customer? 9 A This memorandum does not recommend against disclosure 10 at all, Mr, Carr. 11 Q Could you answer that question, please? 12 A But you are implying something -13 MR, MUSGRAVE: Object to counsel's characterisation 14 of this as a policy. This is not a policy. It has not been 15 identified as a policy. *\ 16 A (By the Witness) It is an analytical policy is all. 17 THE COURT: Overruled. 18 A (By the Witness) There is no recommendation against 19 disclosure here, Mr. Carr. 20 Q (By Mr. Carr) I'm sorry. 21 A There was no recommendation against disclosure here, 22, Me. Carr. 23 Q That is not what I asked you, sir. Mr. Park, you know 24 what I have asked you. 127 A 1 am so sorry. Would you mind repeating the question, 1 please, sir? 2 3 Q I will, Mr. Park. Did anybody write a memo suggesting 4 that what you recommended or stating that what you recommended in this memo should not be followed? 5 6 A 1 am not aware of a memo, but I am aware that my 7 recommendation was not followed by the company and what Z 8 objected to 9 Q Mr. Park -- 10 A Yes. 11 Q You are recommending against disclosure to the govern 12 mental agencies and to the public and you Just stated a moment 13 ago that you don't know that the governmental agencies were 14 ever advised. You don't know of any customer that was ever 15 advised and you don't know of any public disclosure. And you 16 don't know of any memos that came in recommending against it; 17 recommending against that what you said. Isn't that correct, 18 sir? Have I properly stated what you said? 19 MR. MUSGRAVE: Object to the question. It has got 20 about five questions in it and also misstates the witness's 21 prior testimony. 22 THE COURT: Overruled on both points. 23 A (By the Witness) I don't think X said quite that. 24 This has no relationship to chlorophenols or dioxin. 128 1 Q (By Mr. Carr) Mr. Park, I am not asking you that. 2 A Mr. Carr, let me Just answer your question. While I 3 am not aware of any memoranda objecting to what X said, none 4 were necessary. What I suggested was not followed by the 5 company. 6 Q X am not even asking whether or not you believe one 7 was necessary. All X am asklj^ for is a simple fact so that 8 we can deduce from that fact what indeed took place. You said 9 that the company did not follow this policy is what you said. JO A Did not follow my recommendation. 11 Q Did not follow your recommendation. But X have asked 12 if you have any knowledge of any public disclosure of the 13 dioxins either to the customers, to governmental agencies or 14 to the public and you said you have no such knowledge. So, 15 It would appear that what you said should be done was in fact 16 followed, doesn't it, sir? 17 A No, it doesn't,Mr. Carr. 18 Q You know that dioxin is present. You.have seen the 19 memo. You. know the dioxin is present in the product. You knoi 20 that, don't you, sir? 21 A Apparently so. 22 Q And this information to your knowledge until we dis 23 closed it in this Court Room, to your knowledge was never made 24 public, was it, sir? 129 A I don't know, Mr. Carr. 1 Q Aa a matter of fact, you know that when OSHA came In 2 3 and discovered it In a product that was spilled on the track 4 that Monsanto took great pains to deny that It was there even 5 though they knew that It was there. Don't you know that, sir? MR. MUSGRAVE: Object to that, Your Honor. That is 6 counsel's testimony, characterization Improperly done. 7 Object and request that It be stricken and the jury instructed 8 9 to disregard It. 10 THE COURT: Overruled. 11 A (By the Witness) X can't recall the wording of any 12 Monsanto statements about that right now. 13 Q (By Mr. Carr) And you do know that your counsel filed 14 documents under oath In the fall of 1983 denying that dioxin 15 was present In the tank car, the 2,3,7,8 TCDD was present in 16 the tank car that spilled In Sturgeon. You know that. That 17 was four years, nearly five years after the spill. You know 18 that, sir, don't you? Denied under oath that it was in the 19 tank car when they knew it had been sent to Rappe and Rappe 20 had said there was 45 parts per billion 2,3,7,8. They filed 21 documents In this Court swearing under oath that it wasn't 22 trite. The lawyers did that. You are aware of that, aren't 23 you, sir? 24 A Mr. Carr, X am not. This is far and away my closest 130 I involvement In this matter* I am not aware of other things 2 that went on in connection with the lawsuit* 3 Q And what I am telling you now that your attorneys 4 swore under oath that 2,3,7,8 wasn't in that tank car, that 5 the first time they admitted it was there it had been found 6 by Dr. Rappe, was in this Court Room and they said before this 7 jury, well, for the purposes of this case they will say -- 8 they will admit that it was in there. Is this the first you 9 have learned of that? 10 A I don't recall having.heard that. 11 Q Mr. Park -- 12 MR. MUSGRAVE: I object to this as irrelevant and 13 immaterial to the cross-examination of this witness. Your Honor 14 This is going nowhere* We are just wasting time with this. IS THE COURT: Overruled* It is proper cross-examlnatich 16 in this part of the case. 17 Q (By Mr* Carr) Do you know how far up this apparent 18 policy of no disclosure -- do you know how far up it goes? 19 Does it go to the President of Monsanto? 20 MR. MUSGRAVE: Object to counsel's characterization 21 of something as apparent policy* 22 THE COURT: Overruled. 23 Q (By Mr. Carr) What I have explained to you, you 24 haven't said it to the public. You haven't said it to the 131 1 customers You haven't sold it to the governmental agencies. 2 You haven't said it in this Court Hoorn, You denied it every 3 where, How far up does it extend? 4 A (By the Witness) There is certainly no policy of 5 over-up that 1 am aware of, Mr, Carr, 6 Q Well, if it la not a cover-up, la it a policy of dis 7 closure? 8 A 1 don't know what policy you are speaking of, 9 Q Would you say documents filed In this Court Boom where 10 they refused to admit the truth of the fact that 2,3,7,8 TCDD 11 was in that tank car, would you say that is a cover-up or is 12 that a disclosure? 13 MR, MUSGKAVE: 1 object to that as an improper ques 14 tion, Your Honor, phrased only for inflammatory purposes and IS I object to it and request that the jury be instructed to dls- 16 regard it, i 17 THE COURT: . Overruled, 18 A (By the Witness) I have no knowledge of, Mr, Carr, of 19 what has gone on In the trial of this matter, 20 Q (By Mr. Carr) At the time you met in May of '79 to 21 consider the 2,4 dlchlorophenol product, were you Informed or 2 did you know that your chemists had stated that the 2,4 dlchloi 23 phenol may contain hazardous dioxins and furans? Did you know 24 that air? 132 A 1 would hove to rely on the minutes of that meeting. I Q Did the minutes of that meeting reveal to your TSCA 2 3 Committee that Dr. James D. Wilson knew that the DCP may con 4 tain hazardous dioxin and dibenzo furans? 5 A At what concentrations? Q Don't care. Hazardous. At whatever level meets the 6 7 definition of hazardous. MR. MUSGRAVE: To whom, Mr. Carr? Asking this man 8 9 to set that level? Q (By Mr. Carr) Did Dr. Wilson Inform the committee 10 11 that.the 2,4 dichlorophenol contained, may contain hazardous 12 chlorodibenzodioxin ? 13 A (By th Witness) 1 can't recall the specifies. 14 Q Does it appear anywhere in your minutes that he Infor IS you? 16 A Now, which particular meeting?, 17 Q The meeting dealing -- that we have been discussing 18 on Kay 11, May 22 and June. 19 A May 11 and May 22. 20 Q And your June memo. 21 A Which June memo? 22 Q Any June memo that you may have. 23 A I have no June memo relating to the dioxin. 24 Q Well than please answer in accordance to the memos 133 that you do have. You have got a June 6, 1979 memo. 1 Plaintiff's Exhibit 1275. 2 3 A Yes. 4 Q That is in June isn't it sir? 5 A That relates to the May 11 and May 22 meetings. 6 Q Yes indeed it does. Did Dr. Wilson mention to you 7 as 1 have stated that the 24 DCP may contain hasardous 8 chlorodibenzodioxins7 9 MR. MUSGRAVE: Some 1 think it says if you are 10 quoting what Dr. Wilson said Mr. Carr. 11 MR. CARR: Mr. ttisgrave I would appreciate it if 12 you would let me ask my questions and you may ask yours. 13 MR. MUSGRAVE: Well if you are quoting what Dr. 14 Wilson said you are misquoting him. 15 MR. CARR: If you are telling the witness now that 16 1 have a document in my hand -- 17 THE COURT: Gentlemen that Is enough. 18 MR. MUSGRAVE: X am objecting then Your Honor to 19 counsel's misquoting a document. 20 MR. CARR: Your Honor I am not even attempting to 21 quote. X am asking whether or not Dr. Wilson told him. 22 THE COURT: Objection is overruled. 23 A (By the Witness) X cannot remember the specific con 24 versations that took place at thse meetings. 134 1 Q (By Mr. Carr) I understand that. You don't have any 2 memory of It other than what Is In your memos. Is It men 3 tioned In your memos? 4 A I don't see that mentioned. I don't see that men 5 tioned in these memos. 6 Q I will hand you now Plaintiff's Exhibit 1243 dated 7 April 10, 1979, a good month before your Initial meeting on 8 May 11. Did Dr. Wilson tell you that one lot of 93 per cent 9 DCP may contain some hazardous chlorodibenzo dioxins and 10 dibenzo furans? 11 A Well now, our minutes do indicate that it contains 12 1 to 4 per cent 2,4,6 trichlorophenol. 13 Q That is not dioxin, is it? 14 A No. IS Q Could you answer my question then? 16 A I'm sorry. Let me read this memorandum then. Can you 17 point me to a specific reference in here, Mr. Carr. 18 Q There isn't any reference in there. I am asking you 19 for your analysis if there is any statement at that TSGA meet- 20 ing, any of the memos relating to the TSCA meeting that he 21 informed you that one lot of DCP may contain some hazardous 22 chlorodibenzo dioxins and dibenzo furans? 23 A I don't see a statement in here. But that doesn't mean 24 that he would not have mentioned it during discussion. 135 1 Q You have no recollection of him telling that 10 to 200 2 parts per million were present in the para-rich cut and DCP 3 samples. Do you, sir? 4 A 1 cannot remember that during discussion. 5 Q 200 parts per million Is very high, isn't it, or is 6 it in your judgment, Dr. Park?- 7 A It would depend upon the substance, its use. Could 8 be -- 9 Q X am not asking you that. 200 parts per million. 10 Have you heard of a product of chlorinated phenol that contains 11 200 parts per million? 12 MR. MUSGRAVE: Object, Your Honor. .Para-rich is 13 not a product. Mr, Carr knows that. 14 MR. CARR: Would you read the entire sentence, 15 counsel? It says, "Para.rich cut and DCP sasples, levels of 16 10 to 200 parts per million were present in the para-rlch cut 17 and DCP samples." 18 A (By the Witness) Can you point out where it Is in the 19 memorandum, please? Am I to read it? 20 THE COURT: Go ahead. 21 A (By the Witness) "Higher," this is a memorandum -- 22. THE COURT: Ho. No. I thought you meant read it to 23 yourself. 24 A (By the Witness) Oh, I'm sorry. Yes. 136 THE COURT: Take a minute and read It to yourself. 1 2 I misunderstood what you were asking. 3 A (By the Witness) Okay. 4 Q (By Hr. Carr) Now, Mr. Park, you know at this period 5 of time that Monsanto was testing the chlorinated phenols, all 6 of the chlorinated phenols because of what it claimed to be 7 was its surprise. You know that, don't you, sir? 8 A 1 don't know that I am fully aware of that, no. 9 THE COURT: I didn't hesr the last thing* 10 THE WITNESS: I am not aware of the testing that 11 Monsanto was doing at that time; 12 THE COURT: Please try to keep your voice up. 13 Q (By Mr. Carr) Don't you think it would be important 14 to your committee, to you as one of the persons responsible 15 for making the decision of whether or not the EPA should be 16 notified that you should be told that your DCP contains these 17 hazardous levels perhaps up to 200 parts per million of dioxinV 18 MR. MUSGRAVE: Object to counsel's assumption or use 19 of the word hazardous levels* It is counsel's testimony. 20 MR. CARR: I am using the words Dr. Wilson used, 21 Your Honor. 22 THE COURT: Overruled. 23 A (By the Witness) I think our committee should be made 24 aware of all information of importance. 137 Q (By Mr* Carr) And Is that fact that the DCP has got 1 dioxin at 200 parts per million at that time, it was being 2 3 manufactured in early '79, is that Important? 4 A Mr* Carr, not being the author, in fact this is the 5 first time I can recall having seen the memorandum. Q ity question is, is that important* 6 7 A It may or may not be. Q I understand it is the first time you saw this docu 8 9 ment* JO A Tea* It may or may not be. In fact, this sentence 11 could be read to say that the 200 parts per million were pre 12 sent In the para-rich cut* Whatever that means* 13 Q How can you read that to say it was present in that 14 cut? Is there an "and" in there or not? 15 A Tee 16 Q And does the word "and" mean that it relates to that 17 which precedes it? 18 A The "and", it means that these two different things 19 contain a number of different levels. 20 Q When I say that I give my children or my child, Glenn 21 and Rex, Glenn and Rex their allowance, do you understand that 22 I would be telling you that I gave an allowance to both of ny 23 children or all five of my kids. If I said all their names? 24 A Ho* But if you. said I gave Glenn and Rich a baseball 138 bat and baseball glove, I would assume you gave one the bat an< I one the glove. 2 3 Q Yes, but Dr. Wilson didn't say that, did he? 4 (Both counsel and the witness spoke 5 at the same time making their remark unintelligible and not reported In 6 7 this record.) Q He said 10 to 200 parts per million In the para-rich 8 9 cut and the DCP samples, didn't he, sir? MR. MUSGRAVE: May I -- just a moment. I would like 10 11 to object to counsel continuing- to have this witness Inter 12 pret a document and what somebody meant by a document that 13 this witness Is not the author of beyond what the words say. 14 the words speak for themselves. If he la not the author, he 15 Is not qualified to go Into the mind of the author to say any 16 mere than what the document says. The document speaks for 17 itself and X object. 18 THE COURT: Overruled. 19 Q (By Mr. Carr) It does use th word "and", doesn't It, 20 sir? 21 A (By the Witness) Yes. 22 MR. MUSGRAVE: May this be a continuing objection, 23 Your Honor? 24 THE COURT: Sure. 139 1 Q (By Hr. Carr) Do you believe chat It would be impor 2 tant to you as a member of that committee when you are dis 3 cussing whether or not to notify the EPA that It contained -- 4 was It Important that you knew it contained levels of dioxin 5 up to 200 parts per million? 6 A (By the Witness) X note that these are the mono di 7 and tri, not the tetra. X guess as a member of the committee 8 X would like to have all available important information. 9 Q And when you concluded that you should not notify the 10 EPA, you didn't have a single bit of information, did you, sir, 11 that the 2,4 dlchlorophenol contained any levels of dioxin? 12 Isn't that correct, sir? 13 MR. MUSGRAVE: You mean him or the committee, sir? 14 MR. CARR: He and the committee as reflected from, 15 your minutes and your notes. 16 i MR. MUSGRAVE: Well, Mr. Carr, the Exhibit 1243 was 17 shown as going to Mr. Callls or Dr. Callis who was present at 18 the meeting. He would have received it in April of *79. Cer 19 tainly had it before the May meeting. 20 MR. CARR: He sure should have had it. 21 MR. MUSGRAVE: He sure should have. 22 Q (By Mr. Carr) Mr. Park, do you believe that the 23 committee decided at that time not to notify the EPA knowing 24 that the DC? contained 200 parts per million? 140 1 A (By the Witness) 1 really cannot recall all of the 2 Information that was discussed at this meeting, 3 Q Now yesterday when X asked you what levels you would 4 consider significant and hazardous and that needs to be reportei 5 something above trace you vent up to parts per million didn't 6 you sir? 1 or 2 parts per million. Didn't you, sir? 7 A That was not reported. We were talking about what 8 would X consider trace amounts. 9 Q I asked you and if you want to know specifically I 10 asked you what you would consider of significance and you said II that Is of significance which is above the level of trace. 12 And X asked you what Is trace and you went up to 30 parts per 13 million. Didn't you, sir? 14 A X think X said 30 could be, yes. 15 Q Now, this document mentions 200 parts per million 16 which is a lot more than 30 parts per million. Isn't it, sir? 17 A 200 Is more than 30. 18 Q A lot more than 30, sir. Isn't it, sir? 19 A Pardon? 20 Q It Is a lot more than 30, isn't it, sir? 21 A Yes. 22 Q And It is significant then. Isn't it, sir? 23 A It might or might not be in a given situation. 24 Q It meets your definition of significance. But you did r 141 1 report that to the EPA, did you, air? 2 MR. MUSGRAVE: Objection, Your Honor. Mr. Carr 3 hasn't established 200 parts per million in any particular 4 product. This document I believe refers to still bottoms, 5 para-rich cuts, things that are not product. If he wants to 6 show us where it is 200 parts per million. _ 7 THE COURT: Overruled. 8 MR. MUSGRAVE: It is misleading the jury. Well -- 9 A (By the Witness) There is apparently no basis for 10 reporting that information to the EPA. 11 Q (By Mr. Carr) You say apparently. Did you discuss 12 this at your meeting? 13 A I do not remember whether we did or not. 14 Q Is it mentioned in your notes that you discussed it? IS A I don't see a reference to that specific information 16 in the notes. 17 Q Doctor, insofar -- I'm sorry. Mr. Park, Insofar as 18 this meeting was concerned, were you apprised of and were you 19 aware of the fact that 250 parts per billion, not million, 20 parts per billion of dioxin Is sufficiently toxic that the EPA 21 should be notified? 22 MR. MUSGRAVE: Which meeting are we talking about, 23 please? 24 MR. CARR: The meeting in May of '79. 142 A (By the Witness) I don't recall that. 1 Q (By Hr. Carr) When did you first learn that 250 parts 2 3 per billion Is considered by a company toxicologist to be a 4 level that should be reported to the EPA? Total dioxins, not 5 just tetra. A X am not sure I understand your question, Mr. Carr. 6 7 Q Isn't It a fact that your toxicologist advised you that polychlorinated dibenzodloxln contamination of 250 parts S 9 per billion In a product should be reported to the EPA? 10 A When did that occur? 11 Q My question Is, Isn't it a fact that he advised you 12 of that? 13 A I cannot recall an Instance directly on point. I guest 14 I can -- IS Q 1 will help you in a moment. All right. Mark this, 16 please, as an exhibit. i 17 THE COURT: Before we get Into that exhibit, Is this 18 a good point to take a break? 19 MR. CARR: Yes, Your Honor. 20 THE COURT: Ladies and gentlemen, we will take about 21 a ten minute break and then resume questioning. The admonish* 22 xaents that I have given you earlier will apply during this 23 break also. 24 (Plaintiff's Exhibit Ho. 1296 143 1 was marked or Identification.) 2 (Short recess taken.) 3 Q (By Mr. Carr) Doctor, I hand you -- doctor. Mr. Park, 4 there have been so many doctors around 1 have fallen in the 5 habit. Mr. Park, I will hand you what has been marked 6 Plaintiff's Exhibit 1296 and ask you if "you recognize Mr. Nair 7 there? Dr. Nair is a product toxicology specialist for 8 Monsanto. 9 A (By the Witness) 1 do. Actually it is Ms. 10 Q All right. Offer 1296 into evidence, if it please the 11 Court. 12 MR. MUSGRAVE: May I see it, please? This is a docu 13 ment that deals with not even a chlorinated phenol and I would 14 object to it as having no materiality or relevancy and any 15 other information in it given the date- of January, 1985, is so 16 i remote in time from the date of the spill it has no probative 17 value of any issue in the lawsuit. 18 MR. CARR: Your Honor, it deals with chlorinated 19 dioxins which is the subject of this lawsuit. It deals with 20 the levels that a toxicologist at Monsanto believes is toxic 21 for total dioxins. It is absolutely relevant and material. 22 What is toxic in January of f85 was toxic in 1979. 23 THE COURT: Let me finish reading it. 24 MR. MUS6RAVE: I would disagree with counsel1# 144 Interpretation of what the document says. The document speaks 1 for itself. 2 3 THE COURT: Just a second. Objection is overruled. 4 It is admitted over objection. 5 MR. CARR; Ask leave to pass Exhibit to the jury 6 if it please the Court* - 7 THE COURT; Yes, you may. 8 Q (By Mr. Carr) Now, Mr. Park, this memo went to you 9 and others who constitute this TSCA Section 8E Committee, 10 didn*t it, sir? 11 A (By the Witness) I certainly received a copy of it, 12 yes. 13 Q And Ms. -- Dr. Nair is a toxicologist for Monsanto, 14 is she not? IS A Yes, she is. i 16 Q And she stated on the second page that the average 17 amount of this particular product -- the average amount of 18 dioxin contamination therein was 250 parts per billion. 19 A Average amount of polychlorinated -* 20 MR.MUSGRAVE: That is an improper characterization. 21 That is an assumption she makes giving a calculation she is 22 making. She does not make that statement in the document. 23 MR. CARR: She says, "The average amount of poly 24 chlorinated dibenzo dioxin contamination is 250 parts per blllio 145 MR. MUSGRAVE: Yes, Mr. Carr, that la number five* 1 The paragraph starts, "I have taken the conservative approach 2 3 to determine If the low levels of dioxins found pose a health 4 hazard. I have calculated the potential body burden of dioxin 5 among workers exposed to tetrathal using the following assump tions :M. 6 7 MR. CARR: In the third paragraph on the first page, does It count up the number of dioxins in sample number five? 8 9 MR. MUSGRAVE: What are you asking now? MR. CARR: 1 am asking whether she referring to the 10 ranges in the second paragraph and the third paragraph, whether 11 or not she refers to the various ranges of these dioxins in 12 13 this tetrathal product. Three of the twelve samples that were 14 tested contained pentachlorodibenzo dioxins and gave the 15 various levels -- 16 MR. MUSGRAVE: You want to read the levels, Mr. Carr? 17 MR. CARR: Range 5.1 to 530 parts per billion and 18 she gave the average as 250 parts per billion,did she not, 19 Mr. Park? 20 THE WITNESS: She assumed an average of 250. 21 THE COURT: Your objection Is overruled. 22 Q (By Mr. Carr) And based upon the average contamina 23 tion of 250 parts per billion, she concluded, "Since the poten 24 tial calculated dally Intake exceeds the virtually safe dose by 146 1 "a factor 1,000, 1 feel this Information should be submitted 2 to EPA under Section 8E of TSCA." 3 A (By the Witness) She did say that, yes. 4 Q She is saying that based upon her calculations as a S toxicologist based upon total dioxin content averaging 250 6 parts per billion* Does she not, sir? 7 A Well, she says that in her memo apparently based'upon 8 the assumptions she has in her memo* 9 Q Doesn't she say that, sir? 10 A She said just what you read there, Mr* Carr* 11 Q Was the EPA -- you told us earlier yesterday that if 12 a toxicologist told you that 250 parts per billion, because 1 13 asked you. This was delivered to me yesterday at 1:30 and 1 14 asked you if that were true, 250 parts per billion, and you 15 said, "Yes, 1 would accept the word of th toxicologist." 16 Did you not, sir? 17 A 1 did. 18 Q Now this is the toxicologist that told you and your 19 committee that 250 parts per billion should be reported to 20 the EPA, did she not, sir? 21 A She did. 22 Q And did you report it to the EPA? 23 A We did not* She did exactly what she should do as a 24 toxicologist* May I explain a little bit here? 147 Q Mr. Park -- I will ask the Jury be Instructed to 1 2 disregard the latter part of his answer. It Is not responsive 3 to my question. 4 THE COURT: I agree with you. It is not responsive. 5 The jury Is ordered to disregard It. 6 Q (By Mr. Carr) Now, Mr. Park, the 250 parts per 7 billion that she considers should be reported to the EPA is 8 many times less than the amount of dioxin contained in the 9 2,4 dichlorophenol or for that matter in the orthochlorophenol 10 crude. Isn't that correct, sir? 11 A (By the Witness) True. 250 parts per billion would 12 be less than a part per million. 13 Q The tank car that spilled in Sturgeon contained a 14 total dioxin -- strike that. The tetradloxln as described in 15 this particular product as what level and it was In the dust. 16 i Not even in the product. What was the amount of tetra describe 17 by Dr. Nair as in the dust, the residue of the product? 18 A I think they detected none in the product. 19 Q That is correct. 1.5. 20 A 1.5 parts per billion. 21 Q How does that compare with 45 parts per billion that 22 was in the tank car that spilled at Sturgeon? 23 A Well, It is less. 24 Q Significantly less. 30 times less, isn't it, sir? 148 A Yes. 1 Q 30 times more of tetra was In the tank car that spilleci 2 3 In Sturgeon. She didn't even take Into consideration the 4 tetra content, did she, sir, and she didn't even describe it 5 as being 2,3,7,8. Did she, sir? A Well, It wasn't in the product. 6 7 Q She didn't describe it as being 2,3,7,8. Did she, sir? A No, she did not. 8 9 Q But without the tetra being in the product and only 10 the lesser toxic dioxins being in the product at the level of 11 250 parts per billion, she said the EPA should be notified. 12 Didn't she, sir? 13 A Yes. She says she feels like this information should 14 be submitted. IS Q Because she considers that it meets the criteria that 16 the EPA sets out. Doesn't she, sir? 17 A No, she doesn't say that at all. 18 Q What other reason could she have to report it to the 19 EPA unless it meets the EPA's criteria? . 20 A 1 don't know. 21 Q Who is the person on that committee other than Dr. Nair 22 charged with giving an opinion on the toxicity of that product? 23 A What other person? What other toxicologist on that 24 committee? 149 1 MR, MUSGRAVE: That assumes that Dr. Nair Is on the 2 committee, Mr. Carr. I don't think that has been established 3 and I object to that. 4 THE COURT: Objection is sustained. 5 Q (By Mr. Carr) Was there a toxicologist on the commlttc 6 A (By the Witness) As I recall you probably have a copy 7 of the minutes there, Mr. Carr. X don't have that in front of 8 me, but as I recall I believe Dr. Roush represented toxicology. 9 Q Dr. Roush is not a toxicologist, is he, sir? He is 10 on M.D.? 11 A Yeah. Am I correct in that? X am trying to go on my 12 recollection. 13 Q X can help you. I can give you a copy. X will have 14 it marked. 15 A Thank you. 16 i (Plaintiff's Exhibit No. 1297 17 was marked for identification.) 18 Q Handing you what has been marked Plaintiff's Exhibit 19 1297 and ask you If you recognize that as a memo to the file, 20 not to the EPA, of this TSGA Committee? 21 A Yes. 22 MR. CARR: Offering 1297. 23 MR. MUSGRAVE: Same objection as before, Your Honor. 24 THE COURT: I'm sorry X didn't hear. 150 1 HR* MUSGRAVE; Same objection as before with regard 2 to Plaintiff's 1296 3 THE COURT: You mean 1297? 4 MR. MUSGRAVE: The same as 1296. 5 THE COURT: Okay. It is admitted over objection and 6 I will incorporate those objections in the arguments of both 7 counsel. 8 MR. CARR: Ask leave to pass this exhibit to the 9 jury. Your Honor. 10 THE COURT: Yes. II Q (By Mr. Carr) Now, Mr. Park, the members of that 12 committee including yourself were C. P. Farley, F. E. Kearney, 13 W. J. McCarville, W. B. Papageorge, Ur. Roush. Were any of 14 those persons toxicologists? 15 A (By the Witness) Ur. Roush represented toxicology at 16 the meeting. i 17 Q My question is specific. Are any of those persons 18 toxicologists? 19 A Ur. Roush I guess was -- filled the toxicologist 20 function. 21 Q That isn't what I asked you, sir. I asked you whether 22 or not any of these persons are toxicologists? 23 A Mr. Carr, I am trying to answer. I know the qualifica 24 tions of the other four are not. I guess I am not that deeply 151 familiar with Dr* Roush's qualifications except that he is very 1 well qualified* 2 3 Q I am well qualified in certain areas, but not in otherit 4 You are well qualified in some areas, but not in others. Is hit 5 a toxicologist? A A toxicologist reports to him. 6 7 MR* CARR: Your Honor, would you direct the witness 8 to answer this question? 9 A (By the Witness) 1 don't know whether he is a toxicolc 10 gist or not, Mr* Carr* 11 Q (By Mr. Carr) Why don't you say that, Mr* Park? 12 A 1 am sorry. I thought that was clear. I don't know 13 the extent of his training in toxicology. 14 Q What you do know is that Dr* Park is a toxicologist, 15 don't you, sir? 16 A No, he isn't* 17 MR. MUSGRAVE: She is. 18 A (By the Witness) He's been trying to train me. 19 Q (By Mr. Carr) I'm sorry. 20 A You said Dr* Park. 21 Q Did I? I'm sorry. Dr. Nair* 22 A You have been trying to train me, Mr. Carr, and I am 23 not there yet. 24 Q I am doing my level best to train you* After 20 years *DTUftt. JWIUU iHN IL i4U ****, 152 1 though I am going to give up. 2 A Very well 3 Q Dr. Nair is a toxicologist is she not? 4 A Yes. 5 Q And she reported to you that this level of 250 parts 6 per billion not even including TCDD is a toxic substance that 7 should be reported to the EPA. Didn't she sir? 8 A She did not -- 9 MRw MUSGRAVE: Object to counsel's characterization 10 of the document. The document speaks for itself as to what 11 Dr. Nair said. 12 THE COURT: Overruled. 13 Q (By Mr. Carr) Did she say, "I feel this information 14 should be submitted to the EPA under Section 8E of TSGA," Did 15 she say that? 16 i A (By the Witness) She said that to the person she 17 reports to. The top toxicologist. 18 Q Did you get a copy of her report? 19 A X received it later. 20 Q And you considered her report on the 24th of January 21 23rd of January didn't you sir? 22 A Yes. 23 Q And you had that report in front of you didn't you 24 sir? 153 1 A Yes* 2 Q Did you have a report from any other toxicologist in 3 front of you at that meeting? 4 A We also had -- 5 Q Can you answer that question, please, sir? 6 A Yes* 7 Q What report from what toxicologist did you have? 8 A From her supervisor. 9 Q What toxicologist's report did you have? What other 10 toxicologist reported at that meeting? 11 A X am trying to say. There was a report from her super12 visor. 13 Q I asked you what toxicologist. Is her supervisor a 14 toxicologist? 15 A Yes. 16 Q Who is that? 17 A Dr. Levinskas. 18 Q Is he a toxicologist? 19 A Yes. 20 Q And what memo did he tell you that countered the memo 21 of Dr. Nair? 22 A He felt that she had exaggerated the risk in this 23 situation. 24 Q He said that she had exaggerated the risk. Did he, sii 154 A Yes As I recall, I don't have his memorandum in front I of me* 2 3 Q 1 do have. It was given to me this morning at 9:15 4 a.nu I have it, sir. Now, you tell me where he says she 5 exaggerates the risk. A He says, "Since TCDD was found only in waste dust at 6 7 1.5 PPB the calculations regarding potential pCDD exposure from tetrathal represents an extreme situation which greatly 8 9 exaggerates the risk." Q Because the TCDD is not in there? 10 MR. MUSGRAVE: P, sir* n 12 Q (By Mr. Carr) Because the TCDD is not there, sir? 13 A (By the Witness) I just read you what he said, Mr. 14 Carr. 15 Q I understand that, Mr. Park. Did he talk about the 16 TCDD contamination of the work place? Did'he, sir? 17 A Are you going to allow me -18 Q That is the only copy I have. 19 A I don't have any here, sir. 20 Q Did he talk about the possible TCDD contamination of 21 the work place? 22 A It says, "This does raise a question, however, of 23 possible TCDD contamination of the work place." 24 Q Did he tell you that a mixture of hexachloro dioxins 155 1 were found to be carcinogenic in a NTP bioassay? 2 A He does say that. 3 Q D0es he say that the acute toxicity in guinea pigs of 4 pentachloro dioxin compares to 2,3,7,8 tetrachloro dioxin; 5 two-thirds the toxicity of it? Did he say that, sir? 6 A He says it has an oral LD 50 of 3.1 micrograms. 7 Q Compared to 2. 8 A Let's see. Compared to 2 micrograms per kilogram for 9 2,3,7,8 tetrachloro dioxin. 10 Q Did he say in any place that it should not be reported II to the EPA? 12 A No. 13 Q As a matter of fact,, what he said and he also discussed> 14 did he not, that there is a mixture of hexachloro dioxin that 15 is fetal toxic and produces fetal abnormalities and subcutaneous 16 i edema in the pups in dosages higher than the 2,3,7,8 TCDD. 17 Did he say that, sir? 18 A Yes. 19 Q Did your committee believe from that that Dr. Lewinskas 20 was overruling Dr. Nair and telling you not to report it? 21 A When our committee met -- 22 Q Excuse me. Could you answer that question? Do you 23 believe that he was overruling Dr. Nair? He was pointing out 24 more problems with it, was he not, sir, adding to what she ' 156 1 said. Wasn't he, sir? 2 A No. Our conmlttee considered this and the other 3 memorandum. 4 Q My question Is, did he not add to what she said? 5 Did he not give you additional information as to the toxicity 6 of what you are talking about? 7 A He greatly reduced the possible risk that had been 8 raised in Dr. Nair's memorandum and then he pointed out some 9 other things that had not been raised in hers. 10 Q Did he tell you in any fashion whatsoever that you II should not report this to the EPA? 12 A He does not specifically so state in the memo. 13 Q And you have a specific statement from your toxicolo 14 gist that studied it, that worked on it that says it should be 15 reported to the EPA. Isn't that correct, sir? 16 A That was in the memorandum that led to our 8E meeting. 17 Q And you didn't follow the toxicologist's recommenda 18 tions, did you, sir? 19 A We did follow our toxicologist's recommendations. We 20 had a consensus. 21 Q What toxlcologlst told you not to report it to the EPA? 22 A The consensus -- 23 Q What toxicologist told you not to report it to the EPA? 24 A The toxicologist described the toxicity -- 157 I Q What toxicologist told you not to report it to the 2 EPA? 3 A The committee felt It was not a reportable situation* 4 Q What toxicologist told you not to report it to the S EPA? 6 A I don't know that any specific one did. 7 Q What toxicologist told you to report it to the EPA? 8 A Dr* Nair -- 9 Q Did you report it to the EPA? 10 A -- said she felt this information should be submitted 11 " to EPA. 12 Q Was it submitted it to the EPA? 13 A It was not submitted to the EPA under Section 8E. 14 Q Was it submitted to the EPA in any form? 15 A 1 don't believe it was submitted to the EPA. 16 i THE COURT; Mr* Carr, is this a good point to break? 17 MR. CARR: Yes, sir. 18 THE COURT; Ladies and gentlemen, we are going to 19 break a little bit early today and I would remind you as I do 20 on any overnight break that you are not to read, listen to or 21 watch anything about this case in particular or subject matter 22 in general of any of the media along with the other admonish 23 ments that 1 have given you* X want to thank you for your 24 attention and consideration and patience with any delays that we have had during the week. We will resume again Monday morning at 9:30. Have a good weekend. (Court adjourned.) 1 STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT 3 COUNTY OF ST. CLAIR ) ) ) ) > SS 4 I, Agnes C. Hackmann, one of the Official Court 5 Reporters in and for the Circuit Court of St. Clair County, 6 7 Illinois, and the Official Court Reporter who reported the 8 proceedings had in this cause on April 12, 1985, do hereby 9 certify that the foregoing transcript of proceedings is a true, 10 complete and correct transcript of all the proceedings had in 11 this cause. 12 7 13 OFFICIAL COURT REPORTER 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24