Document NE5pZL43yr2RjLV40nYzODR6D

STATE OP ALABAMA IN THE CIRCUIT COURT FOR ETOWAH COUNTY (Transferred from Calhoun County, Alabama) SABRINA ABERNATHY, et al. , Plaintiffs, versus MONSANTO COMPANY, et al., CIVIL ACTION NO. CV-2O01-832 (Consolidated) Defendants. / DEPOSITION 07 ROBERT 0. SCALEY, II, PH.D.. The deposition of ROBERT G. KALEY, II, PH.D., was taken before Deborah Balers Garrett, Certified Shorthand Reporter, Registered Professional Reporter, as Commissioner, commencing at 10:00 a.m. on August 21, 2001, by the Plaintiffs, at the law offices of Lightfoot, Franklin & White, The Clark Building, 400 North 20th Street, Birmingham, Alabama, pursuant to the stipulations set forth herein. Regional Reporting Service, Inc. 755 Walnut Street Gadsden, Alabama 35901-0755 . 3 1 EXHIBITS 2 Plaintiffs' Marked Offered 3 One Two 4 Three Four 5 Five Six 6 Seven Eight 7 Nine Ten B Eleven Twelve 9 Thirteen Fourteen 10 Fifteen Sixteen 11 Seventeen Eighteen 12 Nineteen Twenty 13 Twenty-one Twenty-two 14 Twenty-three Twenty-four 15 Twenty-five Twenty-six 16 Twenty-seven Twenty-eight 17 Twenty-nine Thirty 18 Thirty-one 28 34 40 48 57 69 71 81 92 103 111 125 143 153 162 166 173 186 186 191 192 222 229 238 24B 251 260 264 267 311 314 19 No other exhibits were marked for identification, offered or attached as 20 exhibits hereto 21 22 23 2 1 APPEARANCES 2 For the Plaintiffs: 3 DONALD W. STEWART, Esq. 1131 Leighton Avenue 4 Anniston, Alabama 36201 5 For the Defendants: 6 MICHAEL E. KELLY, Esq. SMITH, HELMS, MULLISS & MOORE 7 P. 0. BOX 21927 Greensboro, North Carolina 27420 Videoqraoher: winters 0. Hope 10 702 Brown Marx Tower Birmingham, Alabama 35203 11 12 INDEX ' 13 Page 14 Stipulations 4 15 Reporter's Certificate 340 16 EXAMINATIONS 17 Witness: ROBERT G. KALEY, II, PH.D. 18 By Mr. Stewart 19 Page 5 20 21 22 23 REGIONAL REPORTING SERVICE, INC. 4 1 STIPULATIONS 2 IT IS STIPULATED AND AGREED by the 3 parties, through their respective counsel. 4 that the deposition of ROBERT G. KALEY, II, 5 PH.D., may be taken before Deborah Salers 6 Garrett, CSR, RPR, as Commissioner and Notary 7 Public, Alabama at Large, at Birmingham, 8 Alabama, on August 21, 2001, at 10:00 a.m. 9 IT IS STIPULATED AND AGREED that the 10 signature to and reading of the deposition by 11 the witness is waived, the deposition to have 12 the same force and effect as if full 13 compliance were had with all laws and rules of 14 Court relating to the taking of depositions. 15 IT IS STIPULATED AND AGREED that it 16 shall not be necessary for any objections to 17 be made by counsel to any questions except as IS to form or leading questions and that counsel 19 may make objections and assign grounds at the 20 time of trial or at the time said deposition 21 is offered in evidence or prior thereto. 22 IT IS STIPULATED AND AGREED that notice 23 of filing by the Commissioner is waived. WATER PCB-SD0000005947 5 1 STATE OF ALABAMA. BIRMINGHAM. AUGUST 21. 2001 2 3 ROBERT G. KALEY. II. PH.D.. 4 after having been first duly sworn, was 5 examined and testified as follows: 6 7 EXAMINATION 8 BY MR. STEWART; 9 Q. Dr. Kaley, I believe we have met before. 10 but I'm Donald Stewart, and I represent 11 the plaintiffs in this case. 12 A. Yea, sir. 13 Q. We met at Dr. Carpenter's deposition if 14 I'm not mistaken. You have previously 15 given a deposition, so you know the 16 rules. But I will just say at the 17 beginning that if you don't understand a 18 question I ask you, let me know and I 19 will rephrase it. Or if you want some 20 clarification about a question -- 21 sometimes I might ask two at once -- you 22 tell me. But if you don't tell me that 23 and you give me an answer, I assume that REGIONAL REPORTING SERVICE, INC. 7 1 A. 2 3 4 Q. 5 6 7 B A. 9 Q. 10 11 A. 12 13 Q. 14 15 A. 16 Q. 17 A. 18 Q. 19 20 21 A. 22 23 Something on parallel or something on that order. We have no reporting relationship. Mr. Branchfield is the person who is now involved in the remediation process there at the Solutia facility, which is formerly the Monsanto plant in Anniston? Yes. what relationship do you have with Mr. Branchfield? There is no official reporting relationship. We are peers essentially. Are y'all both working on that project - Yes. -- there in AnniBton? Yes. What are your responsibilities with the project in Anniston as you presently sit here today? Primarily my responsibility is to provide technical support as needed to Mr. Branchfield and the others involved 6 1 2 3 4 A. 5 Q. 6 7 8 A. 9 10 Q. 11 12 A. 13 14 15 16 17 18 Q. 19 20 A. - 21 Q. 22 23 that is the answer that you are giving to my question and you understand it. Is that all right? All right. That's fine. What did you do to prepare for your deposition here today, your testimony here today? I met with Mr. Kelly for a few hours yesterday afternoon. What documents did you look at in preparation for the deposition? I looked at the deposition notice. I looked at a couple of the previous depositions in the case, Mr. Smith's and Mr. Branchfield's. and I skimmed the experts' reports from -- the updated experts' reports from your experts. Is that Steve Smith you are talking about? Yes, sir. what relationship does he have to you in the company? Does he report to you, or is he parallel with you? REGIONAL REPORTING SERVICE, INC. 8 1 2 Q. 3 4 A. 5 Q. 6 A. 7 8 9 10 11 12 13 Q. 14 15 16 17 A. 18 Q. 19 A. 20 Q. 21 22 23 in the -- at the plant. what is your position as you sit here today and testify today with Solutia? I'm director of environmental affairs. What does that mean? Well, I don't know that it means anything. My responsibilities primarily are to provide technical support to whomever in the company needs such support on what we call legacy chemicals issues with PCBs and other chemicals that the company no longer manufactures. when you say legacy chemicals, you are talking about chemicals they have been involved in manufacturing in the past and no longer manufacture now? Yes, sir. Is that what you are telling us? Yes, sir. In your last deposition that you gave when Don Barrett deposed you, you indicated you had taken a position in 1985, is that correct, in the company? WATER PCB-SD0000005948 9 1 A. 2 3 Q. 4 A. 5 6 7 a 9 Q. 10 11 A. 12 Q. 13 A. 14 15 16 17 IB 19 Q. 20 A. 21 Q. 22 A. 23 Well, taken -- My first position with the company in 1985? No. No. I took a position in 1985 where I moved from a laboratory position to a position on basically the environmental safety and health department. That's correct. Were you in the position then that you now hold with Solutia? No. what was the nature of that position? Well, it was I guess somewhat subsidiary to the position I'm in now. I was basically a technical advisor on PCB issues to a gentleman who had overall responsibility for those issues at the time. who was that person? Dr. John Craddock. who had he succeeded? No one. It was a position that had been created, and John had been the first REGIONAL REPORTING SERVICE, INC. 11 1 2 A. 3 Q. 4 A. 5 Q. 6 A. 7 Q. a A. 9 Q. 10 n 12 13 A. 14 Q. 15 16 17 18 19 Q. 20 21 22 A. 23 PCBs -Yes. --is that correct? That's correct. Kept up with the literature? That's correct. Were familiar with the toxicity? That's correct. And I would assume in that position also familiar with the history of the company in connection with the production of PCBs? That's correct. And that would also include, I would assume, based on your testimony here today, that the chemicals that you dealt with, the poison such as PCBs -- MR. KELLY; Object to the form. -- you dealt in connection with those as far as the waste disposal too; is that correct? Well. I -- Number one, I disagree with your characterization of PCBs as 1 10 1 2 Q. 3 4 A. 5 6 7 8 9 10 11 12 13 14 15 16 17 Q. 18 19 A. 20 Q. 21 * 22 23 person in that position. So John Craddock took the position that you now hold? No. Let me just go through a chronology a little bit I guess to -- I mean, I came over to the environmental policy staff or the ESH staff in 1985 to work for Dr. John Craddock, who had responsibility for PCB issues. In 19 -I don't know -- 86 or 1987 I moved to a position more parallel with John's than just PCBs, where I had broader responsibilities for other chemical issues. Eventually John retired, and his responsibilities then came back under me. Did you continue, though, to have responsibility for PCBs? Yes. In your previous deposition you said you were in a position of corporate stewardship, that you responded to external and internal inquiries about REGIONAL REPORTING SERVICE, INC. 12 1 2 3 Q. 4 A. 5 Q. 6 A. 7 8 9 Q. 10 11 12 A. 13 14 Q. 15 16 A. 17 18 Q. 19 20 21 A. 22 23 Q. poisons. I think they were industrial chemicals that were -- Aside -Would you just respond to the question? -- from that -Did you deal with that? Aside from that I haul become familiar with those issues. I did not deal specifically with those issues. When you went into that position in 1985, didn't Mr. Craddock tell you where those things were manufactured? Well, I certainly knew where they were manufactured, yes. Well, how did you know that? Did he tell you, or did you just know? I had known that from my early experience with the company. And did he tell you anything at all about the level of production at the Anniston plant of PCBs over time? I don't have a specific recollection of that. Well, did you have any idea about that? WATER PCB-SD0000005949 13 1 A. 2 3 Q. 4 S A. 6 Q. 7 A. 8 9 10 11 Q. 12 13 14 15 16 A. 17 IB 19 20 21 22 23 Only that large amounts were manufactured there. Well, did you have any idea as to the waste stream that was produced? Well, number -PCB waste stream. At what point in time? I mean, I developed more understanding of that. When I assumed that position, I wasn't told anything specific. when you assumed the position what did you understand the waste stream was, and what did you understand had been buried on the plant site there in Anniston, Alabama? Well, I don't recall specifically what I knew in 1985 versus what I know now. But I do understand that there were PCBs manufactured -- PCBs were manufactured there, that there were storm water discharges from that manufacturing process, and I understood that there was a landfill that contained, you know, PCB REGIONAL REPORTING SERVICE, INC. 15 i 2 3 4 5 6 7 A. 8 9 Q. 10 11 12 13 14 A. 15 16 17 18 19 Q. 20 21 22 A23 company that you know of as you serve in that position and I assume still have a responsibility for it today, that knows about how much waste, PCB waste is buried in the landfill there in Anniston? I know of no one that has that specific knowledge. And you know of no one as you sit here today, is that correct. Dr. Kaley, who can tell us what waste stream came off of the manufacturing process and managed to make its way into the dump over time? I think there is some understanding of the kinds of materials that possibly left that manufacturing facility into the various discharge points of the company. Well, who would have some knowledge? I'm talking about the waste dumps that are located on that facility today. Oh-, no. I'm sorry. I misunderstood your question. As far as the -- I don't 14 1 2 3 4 Q. 5 6 7 8 9 A. 10 11 Q. 12 13 A. 14 15 16 17 18 Q. 19 20 21 22 23 waste, and by the time 1 joined the company, and also contained the former PCB manufacturing facility. well, in your laBt deposition you could not tell the person who took your deposition how much waBte was buried on the plant site. Are you unable to tell us here today as to how much waste? I have no specific knowledge of that as I sit here today. That's correct. So you don't consider that to be important in the job you have now? I don't know if I consider it to be important or not. I don't have that information, don't know where I would get that information. So it is information I do not have. So as we sit here today there is nobody in the company chat you know of -- and as you have indicated previously you are in your previous deposition -- you have corporate stewardship of PCB information. There is nobody in the REGIONAL REPORTING SERVICE, INC. 16 1 2 3 4 5 Q. 6 7 A. a Q. 9 10 n A. 12 Q. 13 14 15 16 17 18 19 20 A. 21 22 23 know of anyone that knows specifically what particular amounts of what waste streams went into the landfills on the site. No. Are you familiar with the term still bottoms? Yes. And were there still bottoms that were left in the manufacturing processes at Anniston, at the plant there? That's my understanding, yes. And as you sit here today you tell me that there is nobody either in Monsanto or in Solutia that can tell Dr. Kaley or me or the ladies and gentlemen of the jury how much in the way of pounds, millions of pounds, over a hundred million pounds -- you can't even guesstimate how much is buried there? I have seen a document which I think may have been shown to me in the deposition -- I don't know -- where there is some estimate of the poundage in that WATER PCB-SD0000005950 17 1 2 3 4 5 6 7 Q. B A. 9 Q. 10 11 A. 12 13 Q. 14 15 A. 16 17 Q. 18 A. 19 Q. 20 21 A. 22 23 landfill. But I don't recall that number as I sic here. That's the only thing 1 have ever seen. I don't know of anybody that knows a specific number. My understanding was that was an estimate. And what was that estimate? I don't remember. And you say the document was submitted during your last deposition? I don't recall whether it was or not. It may have been. I don't recall. Well, do you remember seeing such a document? Not specifically. You mean in that deposition? Yes. No, I don't specifically remember. Do you remember seeing it since that deposition? I remember seeing it. I don't know whether it was before or after that deposition. . REGIONAL REPORTING SERVICE, INC. 19 12 A. 3 4 5 Q. 6 7 A. 8 9 10 Q. 11 12 13 14 15 16 A. 17 18 Q. 19 20 21 22 23 should be done at the site. Well, I provide technical input to those decisions. I don't advise him what should be done at the site. Well, what is the nature of the technical input that you provide? A variety of things, chemical behavior of PCBs, chemical properties of PCBs, just a variety of technical Issues. Well, In your last deposition, as I understood, you also advised him -- and you correct me if I'm wrong, but you also had the capability to advise someone as to the environmental remediation of PCBs. Oh, I provide input into that process. but I don't tell them what to do. Well, wouldn't a part of that process be that you would have to know or have some idea or some guesstimation to how much was buried up there on the landfill on the south side of 202 or on the west side of the plant? 18 1 Q. 2 3 4 5 6 A. 7 Q. 8 9 10 A. 11 Q. 12 A. 13 14 Q. 15 16 17 A. 16 19 20 Q. 21 22 23 And as you sit here today you don't know the number that was on there that was designated as to how many pounds of PCBs, millions of pounds of PCBs were buried on that landfill? I don't know. But you do remember, don't you, Dr. Kaley, that it was millions of pounds? I don't remember specifically. That's not important to you? I don't remember specifically what that number was. I didn't ask you if you remembered the number. I asked you if that was . important to you. As I sit here right at this very instant it is not important that I know that particular number, no. So as a person who is responsible -- and I assume you are responsible for advising Mr. Branchfield and anybody else involved in that site as to what REGIONAL REPORTING SERVICE, INC. 20 1 A. 2 3 Q. 4 A. 5 Q. 6 7 a A. 9 Q. 10 A. 11 Q. 12 13 14 A. 15 Q. 16 A. 17 IB Q. 19 20 A. 21 22 Q. 23 A. I don't believe I need that information, no. That is not necessary for you to have? I don't believe so. Well, wouldn't it be necessary for you to know where they were buried, what cells they were buried in? I know that basically, vaguely. You know that? I have some idea. what about the discharges from the plant? Wouldn't that be something that you would want to know? Yes. What the historic discharges -To the extent that information is available, yes. Where did that plant in Anniston lose PCBs, Dr. Kaley, if you know? I don't understand your question, what part of the process? How did it leave the plant? Basically through wash water from the WATER PCB-SD0000005951 21 1 2 3 4 5 Q. 6 A. 7 Q. e 9 A. 10 Q. n A. 12 Q. 13 A. 14 Q. 15 16 A. 17 18 19 Q. 20 A. 21 0. 22 23 A. process, storm water from the process. some small --or small amounts through discharges of hydrochloric acid that was a byproduct of the process. Is that the same as muriatic acid? That's correct. And how did that -- Were there outfalls that left the plant site? Yes. Was there one that faced Clydesdale -- Yes. --or Tenth Street, rather? Yes. ` Has there one on the north side of the plant? There is. I don't know whether it discharged PCB containing materials or not. Oh, you don't? NO. Is that the one that goes into the Eleventh Street ditch? Yes. REGIONAL REPORTING SERVICE, INC- 23 1 2 A. 3 4 Q. b 6 A. 7 Q. 8 A. 9 Q. 10 11 12 13 14 A. 15 Q. 16 17 18 A. 19 20 21 Q. 22 A. 23 Q. the manufacturing processes. Dr. Kaley? There probably wer.e some releases to air, yes. well, there were some substantial releases to air, were there not? I don't know the answer to that. You do not know the answer to that? No. So you have not advised anybody as to what they should or should not do in connection with remediating that part of the plant site there as it exists today? MR. KELLY.- Object to the form. I don't understand your question. Well, as the plant exists today are you aware of any air releases from the plant site today? There seem to be some levels of PCBs in air that are above normal or backgrounds around the plant site, yes. where are those? Where are they? Yes. Where are they coming from? oer.TAwm oeoriDTtMn ctoiittp rwr 22 1 Q. 2 Weren't there PCBs found recently, say in the last five or six years, in the 3 Eleventh Street ditch? 4 A. Yes. S Q. 6 Is it your position as you sit here today that that didn't come from your 7 plant site there in Anniston? 8 A. NO. 9 Q. Then it is your position that it did 10 11 A. come from the plant site in Anniston? It may have. There is certainly a . 12 drainage pathway that would account for 13 that, yes, from the west end landfill. 14 Q. And that would have come from that 15 northern outfall from the plant; is that 16 correct? 17 A. Well, there are Beveral northern 18 outfalls. I'm not sure which one 19 specifically you are talking about, but 20 it may have come from the discharge 21 runoff from the.west end landfill. 22 Q. Okay. And what about air, releases to 23 the air of PCBs? Didn't that occur in REGIONAL REPORTING SERVICE, INC. 24 1 A. 2 3 Q. 4 5 6 7 8 A. 9 10 11 12 Q. 13 A. 14 Q. 15 16 17 18 19 20 21 22 A. 23 Q. I don't know the specific answer to that. Well, where are you taking the tests that would indicate to you that there are elevated levels of PCBs coming off your plant site? MR. KELLY: Object to the form. I don't believe we know where they are coming from. We are currently in discussions to answer those kinds of questions. Discussions with whom? The regulatory agencies. We'll get back to that in a few minutes. In your previous deposition you've indicated, Dr. Kaley -- Well, not previous deposition, but in an affidavit that you made. Do you remember the affidavit that you made in connection with the injunctive relief that our clients are seeking? Yes. I assume you put that together? o^rsmMbT. pconBTTwr! cpovipp iwr WATER PCB-SD0000005952 25 1 A. 2 Q. 3 4 5 6 7 A. 8 Q. 9 10 11 A. 12 Q. 13 14 15 16 17 18 19 20 21 22 23 Yes. The first four pages of that affidavit deal with what your experience is, and you indicate that you got a bachelor of science in chemistry from Perdue University in '68? Yes, sir. And you got a Ph.D. the from the University of Illinois in analytical chemistry in '74? That's correct. Dr. Kaley, you then go through sort of the history of how PCS releases from this plant site were discovered by Monsanto. And the first, as I say, four pages have to do with PCB characteristics, what y'all manufactured, when you shut down the facility and everything. But on page five of that affidavit you talk. Dr. Kaley -- and this has been introduced already or is a part of the court record, and it is your affidavit, REGIONAL REPORTING SERVICE, INC. 27 1 2 3 4 A. 5 Q. 6 7 8 9 10 11 12 A. 13 14 15 16 Q. 17 18 19 20 21 22 23 regarding a parcel of property. They had done some testing, and they had found PCBs on it. That's correct. Now, before that portion of your affidavit there is no statement made as to any prior -- And I want you to take a look at it and tell me. Is there any statement made about any prior problem with PCBs from that plant site, pages one through four? I will take your word for it. I don't recall anything being in there. The purpose of the affidavit was primarily to review the history since 1983. Hell, let me show you if I can -- And let's mark this as Plaintiffs' Exhibit One to your deposition, a letter that you wrote, Dr. Kaley, to the editor of The Nation magazine. MR. STEWART: And let me have that marked, please, ma'am. (Plaintiffs' Exhibit Number ocrsTrwaT. tronpTTvrs cwpvt/t rwr 26 1 2 3 4 A. 5 Q. 6 7 8 9 A. 10 Q. 11 A. 12 Q. 13 14 15 16 17 A. 18 Q. 19 20 21 22 23 as I have indicated, in connection with y'all's opposition to our petition for injunctive relief. Yes, sir. You indicated that in 1993 the Alabama Power Company that had had some land that y'all had swapped to them discovered PCBs on their plant site. On that property, yes. On that property? Yes. Now, Dr. Kaley, that's not in fact the first time that you all realized -Monsanto realized they had a problem with PCBs off this plant site, is it? MR. KELLY: Object to the form. I don't understand your question. Well, in addition to that affidavit -Let me see if I can just nail down what you said first, and then I will ask you a question about it. .You say in 1993 the Alabama Power Company contacted Monsanto requesting information REGIONAL REPORTING SERVICE, INC. 28 1 2 3 Q. 4 5 6 7 A. 8 Q. 9 10 11 A. 12 13 14 Q. 15 16 17 18 19 20 21 22 23 One was marked for identification.) You take a look at that letter, if you would, please, sir. You just look at it and then I'll ask you some questions about it. I have reviewed it in general. Take whatever time you need to take a look at that. I'm going to ask you some questions. Hell, if I need to review it in more detail to answer yours questions. I'll do so. That's fine. In this letter on page two, the fourth paragraph down, you indicate that in 1993 when early information suggested that PCBs were present in fish in Choccolocco Creek and might be present on dirt particles and surface water leaving the Monsanto site. the company began an extensive investigation to determine any potential sources of PCBs and to understand the OFfTTOKTiT. PBDOPTTNn RPBVTfR TNP WATER PCB-SD0000005953 29 1 2 3 4 A. 5 Q. 6 7 8 9 10 11 12 13 A. 14 Q. 15 16 17 18 19 20 21 22 23 A. extent of PCB impacted soils in the areas near the plant. Is that your statement there from the letter? Yes, sir. Now, you go on to say that upon finding that some PCBs were associated with drainage ditches leading away from the plant y'all established a property purchase program to acquire residential property to facilitate management and control of PCBs. Is that your statement? Yes, sir. Now, that implies. Dr. Kaley. that this was a big surprise to Monsanto, that you had PCBs that were leaving this plant site and getting in those drainage ditches and possibly affecting neighbors to the point where you bought property around that plant. Doesn't that imply that? MR. KELLY: Object to the form. I would think in 1993 when we got that REGIONAL REPORTING SERVICE, INC. 31 1 2 A. 3 4 5 6 7 8 9' 10 11 12 13 Q. 14 15 16 17 A. 18 Q. 19 A. 20 21 Q. 22 23 MR. KELLY: Object to the form. There had been investigations prior to 1993 when PCBs had been found in sediments and ditches leading to Snow Creek. There was information about low levels of PCBs in sediments in Choccolocco Creek. That was not an issue to be responded to in this particular letter. I was addressing the issues that she raised in her article and that I felt needed to be responded to. well, didn't she say in that article that you all had concealed from the neighbors the fact that you had been contaminating their property for years? Did I say that? Did she say that? I don't recall what she said. I don't recall that statement being in there. You don't recall that statement being in that Nations magazine article, that she had historical data that indicated that Ttt/<< 30 1 2 3 4 Q. 5 6 7 8 9 10 11 12 A. 13 14 15 16 Q. 17 18 19 20 21 22 23 information, as the information developed, we were surprised by that information. Now, where, Dr. Kaley, in the context of the first part of this letter or in the second part of this letter did you ever tell anvone at The Nation maaazine that you all already knew that PCBs were leaving that plant site at some time before 1993? MR. KELLY: object to the form. Well, I was addressing the issues she raised in there. I don't know that it says in there specifically that that -you know, it provides that information. Well, isn't it a fact. Dr. Kaley, that you certainly knew that PCBs had not only left that plant site but had contaminated not only the drainage ditches but Snow Creek and Choccolocco Creek? You knew that yourself when you wrote this letter to the editor of The Nation magazine, didn't vou? REGIONAL REPORTING SERVICE, INC. 32 1 2 3 A. 4 5 6 7 8 9 10 11 12 13 Q. 14 15 16 17 18 19 20 21 22 A. 23 y'all had known for years that you were contaminating the neighbor's property? I don't believe we did know for years that we were contaminating the neighbor's property. We knew that there were --at various times there had been PCBs in the sediments of ditches leading to Snow Creek and various issues with PCBs in sediments of Choccolocco Creek. But I was surprised and continue to be surprised by the contamination of the residential properties around the plant. well, now. Dr. Kaley, you are sitting here today telling me you were surprised about it and telling the ladies and gentlemen of the jury that you were surprised about it, but. Dr. Kaley, didn't you in fact participate in an investigation about PCBs leaving the plant sice when you assumed this position in 1985? It was not an investigation of PCBs leaving the plant site. It was an or/'TAxur oe'W'O'T'Txv: cffeum? tuth WATER PCB-SD0000005954 33 1 2. 3 4 Q. 5 A. 6 7 Q. 8 9 10 A. 11 Q. 12 A. 13 Q. 14 15 16 A. 17 18 19 Q. 20 21 22 23 investigation of PCBs detected in sediments in Snow Creek and ditches leading up to Snow Creek. Did y'all own Snow Creek? Hell, no, we did not and do not own Snow Creek. Did you own those drainage ditches and the property around those drainage ditches? Portions of it. You didn't own all of it, did you? NO. Didn't it go through a residential neighborhood, Dr. Kaley, and around a church? A small piece of it did, yes, or through --It went basically up to a residential neighborhood and under a church. Yes. Isn't it a fact. Dr. Kaley, that the attorney general of the State of Alabama started that investigation? It is not something you discovered or you said anything about, is it? The attorney REGIONAL REPORTING SERVICE, INC. 35 1 A. 2 3 4 Q. 5 6 7 8 9 10 11 A. 12 13 14 Q. 15 16 17 A. IB 19 20 21 22 Q. 23 It is a letter from Mr. Charles Graddick to Richard Mahoney discussing PCB levels in sediments in Snow Creek. Yes. Well, now, Dr. Kaley, you are the expert, but I believe what it indicates is there are some fairly substantial levels of PCBs in the sediments of Snow Creek, about four hundred parts per million. Isn't that a pretty high level? Hell, as he states, it is in excess of the fifty parts per million EPA standard at the time. Yes. Hell, the fifty part per million EPA standard didn't apply, did it, to the sediment in the creek, did it? Well, I don't know. What Mr. Graddick was applying it to was basically at that time a disposal standard or disposal cutoff that had been initiated by the EPA. So we have established, then, that there was a pretty significant problem in Snow 34 1 2 3 A. 4 5 6 Q. 7 8 A. 9 Q. 10 11 A. 12 Q. 13 14 IS 16 17 18 Q. 19 20 21 22 23 general had to start that investigation, didn't he? It is my understanding it was initiated by the attorney general of the State of Alabama. Yes. In fact, it was initiated by Charlie Graddick, wasn't it? I don't recall the name. You don't recall the attorney general at the time? No, sir. Well, let me show you Plaintiffs' Exhibit Two, and you take a look at that and see. (Plaintiffs' Exhibit Number Two was marked for identification.) Take a look at Plaintiffs' Exhibit Two to your deposition, Dr. Kaley, and tell me if that is not in fact a letter from Charlie Graddick to Mr. Richard J. * Mahoney about the problem we are talking about. REGIONAL REPORTING SERVICE, INC. 36 1 2 3 A. 4 5 6 7 8 9 10 0. 11 12 A. 13 Q. 14 A. IS Q. 16 17 18 19 A. 20 Q. 21 22 A. 23 Q. Creek. How far is it to Snow Creek from where this stuff came from? Hell, I think we have established that there were levels in excess of four hundred parts per million. It's I would guess maybe half a mile to a mile. I don't know, I'm sorry. Repeat your question. I think I know what it was. Repeat your question. How far is it to Snow Creek from where this came from, from the plant? From the facility? Yeah. I think it is about a mile. About a mile. Now, this indicates -Well, first let me ask -- Strike that. You participated in this investigation, didn't you? I had some involvement, yes. And that had to do with soil sampling, didn't it? Sediment sampling. Sediment sailing? OffOriOTTM^! CITOVTn? TMr WATER PCB-SD0000005955 37 1 A. 2 Q. 3 4 5 A. 7 Q. 8 A. 9 Q. 10 A. 11 12 13 14 15 16 17 Q. 18 19 20 21 A. 22 Q. 23 Yes. That is in the tributaries that led away from your landfill? MR. KELLY: Object to the form. No. It was in the tributaries that led away from the plant discharge. From the outfall? Yes. So this was coming from your plant site? Well, I don't know what you mean by "this was." These were sediments that were in Snow Creek. I don't -- You know, I don't understand "coming from the site." I don't know how they had gotten there at that time or how long they had been there. well, let me ask you just a couple of simple questions. Y'all were manufacturing PCBs prior to this time frame, weren't you, at that plant site? Yes, sir. And you were burying them in a landfill south of 202 and on the west side of REGIONAL REPORTING SERVICE, INC. 39 1 2 3 A. 4 5 Q. 6 7 8 9 A. 10 Q. 11 12 13 A. 14 15 Q. 16 A. 17 Q. 18 19 20 21 22 A. 23 were higher than what the attorney general had found? I don't recall those numbers, but it is possible. And in the last deposition you indicated that just the attorney general of the State of Alabama was involved, but that is not true either, is it? I don't know what you mean by that. Wasn't EFA involved at this time? Didn't you have discussions with the EFA, a Mr. Hudson from the EPA? That name sounds familiar. It may very well be. Henry Hudson, do you remember him? Not specifically. So when you Baid last time when we took your deposition that the attorney general was involved, it was a little bit more than that, wasn't it? The feds were involved? I'm sure -- Yes, I guess. I will accept your representation that the EPA was 38 1 2 A. 3 4 5 6 7 Q. 8 9 10 A. 11 Q. 12 13 14 A. 15 Q. 16 A. 17 IB 19 20 21 Q. 22 23 your plant, weren't you? There were materials disposed of in those landfills that contained PCBs. I don't know that I would say we were burying PCBs. We were burying some waste from the PCB process. Yes. And there is no manufacturing facility in between y'all and say the south landfill, is there, and Snow Creek? NO. And you found I believe around a Bethel Church some fairly high levels of PCBs, didn't you? what time frame? 1985, in the tributary leading -I -- There may have been. I don11 recall specifically what the findings were and where they were. But certainly there were -- I mean, there were PCBs found in those ditches, yes. And isn't it a fact, Dr. Kaley, that in 1985 when you all, Monsanto, took sediment samples, you found levels that REGIONAL REPORTING SERVICE, INC. 40 1 2 Q. 3 4 5 6 7 S 9 10 11 12 13 A. 14 Q. 15 16 17 18 19 20 21 22 23 involved. Well, let me show you if I can a document we have here, Dr. Kaley, from Mr. Hudson. Let's see if I can find that. Hold it just a minute. This has been provided to us in discovery. We will mark that as Plaintiffs' Exhibit Three. Take a look at that and read over it. (Plaintiffs' Exhibit Number Three was marked for identification.) I've read it. Now, Dr. Kaley, when you look at this document here, it indicates there was a meeting that took place with some people from the attorney general's office about Snow Creek and PCBa. And on over on the second page it mentions Choccolocco. It iB sort of spelled a little differently than we spell it in Talladega and Calhoun County. But are you familiar with Choccolocco Creek? WATER_PCB-SD0000005956 41 1 A. 2 Q. 3 A. 4 Q. 5 6 7 8 9 10 11 A. 12 13 14 15 16 17 Q. 18 19 20 21 A. 22 Q. 23 Yes, I am. Is that what Snow Creek feeds into? Yea, it does. And it appears that Mr. Hudson is saying that he is concerned about the PCBs getting down there in the food chain. Do you understand' what he was talking about? You are the PCB man for Monsanto. Do you understand what he was talking about? Well, I find it difficult to read this particular area, but 1 do have an understanding that he is concerned that there is fishing in Choccolocco Creek and might get PCBs in the food chain. Yes. Well, is that the first time you heard about that, in 1985, and knew about it in your position as the PCB corporate steward for PCB activity? Heard about what? PCBs getting into Snow Creek and all the way down into Choccolocco Creek and REGIONAL REPORTING SERVICE, INC. 43 1 2 3 4 5 A. 6 7 Q. 8 9 10 11 12 A. 13 14 015 16 A. 17 18 19 Q. 20 21 2i 23 A. contamination in the bodies of water that were affected by the tributaries that led away from your plant, wasn't that one of the issues? I don't recall specifically whether it was or not. Well, wouldn't that be something that you would be concerned about as the overseer and man who was responsible for the stewardship of this corporation. Monsanto, about PCB releases? I'm sorry, Mr. Stewart. You are losing me. what specifically is your question? Contamination of the creek over an extended period of time. That would be an issue that I would have some responsibility for concern about, yes. Well, why didn't you bring up with the special master when you filed this affidavit the fact that this had been going on for some time, Dr. Kaley? well, I have trouble with your 42 1 2 A. 3 Q. 4 5 A. 6 Q. 7 8 9 10 11 12 13 14 15 16 17 A. 18 19 20 21 Q. 22 23 being uptaken by fish. It may have been. I don't recall. So '85 was the first time you heard about that? It may have been. But you didn't tell this editor of Nations maaazine and vou didn't tell that special master about this injunctive relief matter in your affidavit about the fact that you knew about all this stuff, that the attorney general and the EPA had discussed with you and others in '85 about PCB releases, did you, Mr. Kaley -Dr. Kaley? MR. KELLY: Object to the form. I was dealing with issues she had written -- had raised in her article. and this issue did not raise to that level. One of the issues that was raised in the petition for injunctive relief. Dr. Kaley, was the extent of the REGIONAL REPORTING SERVICE, INC. 44 1 2 3 4 5 6 7 8 9 10 11 12 13 Q. 14 15 16 17 18 19 20 21 22 23 A. characterizations of the "this's" and "that's." The issues that I was dealing with in the affidavit in that case dealt with the historic -- or a summary of the history since 1993 in these particular thingB. It was not intended to review every single thing that had happened at that plant since the beginning of time. We were dealing with -- in that affidavit I was dealing with the issues that triggered the present and ongoing investigations. Well, is it an important part, Dr. Kaley -- I'm not going to say "this" and "that" any more. Isn't it an important part of anybody's characterization of the site to know how long y'all have been pouring this poison into the creeks that led away from the plant and into Snow Creek and into Choccolocco Creek? That is highly important, isn't it? MR. KELLY: Object to the form. In 1993 we got information that WATER PCB-SD0000005957 45 1 23 4 5 6 7 a 9 10 11 12 13 14 15 Q. 16 17 18 19 20 21 A. 22 23 Q. triggered a set of investigations. Some of that information was new to us and surprising to us. I was clearly aware. as were others, of the activities in 1985, the investigations, the subsequent activities. But at that point we had no knowledge and no understanding that there were PCBs in residential areas in that portion of west Anniston. So to deal with the issues that we were dealing with in that affidavit and in that letter, this particular piece of information didn't have that much relevance. Well, the affidavit had to do with the common areas of creeks and waterways. And certainly, 'Dr. Kaley, you know enough about PCB contamination to know it would be important to know what had happened historically, don't you? The affidavit in its form was intended to review the activity since 1993. So the answer to my question is -- REGIONAL REPORTING SERVICE, INC. 47 1 2 3 Q. 4 5 A. 6 Q. 7 A. B Q. 9 10 A. 11 Q. 12 A. 13 Q. 14 A. 15 16 17 18 19 20 Q. 21 A. 22 Q. 23 of the ditch, and we eventually implemented that sediment removal plan. Well, now, just exactly how many feet of Snow Creek did y'all clean up? I don't know. Wouldn't it be about a hundred? I don' t know. is Jerry Brown a name that is familiar to you? Yes, sir. Can you cell us what he does? Well, right now he is retired. What did he do in -Well, he has had various responsibilities at the plant. He has had environmental responsibilities. He has had technical service responsibilities for our Therminol product line. What did he do in May of 1986? I don't know specifically. Was he Che environmental compliance officer or technology and engineering r.r.,''" t nun r r*T*r^NT^rTt.T^ r*r?T-,TTT nr? 46 1 A. 2 3 4 5 Q. 6 7 8 9 10 11 12 A. 13 14 15 16 17 Q. 18 19 20 21 22 A. 23 It is not a question of whether it was important or unimportant. That wasn't the purpose of the affidavit as I addressed it. Well, that is my question to you now. Would it be important for the special master and anybody having to make a decision about what to do about cleaning up that creek to know how long y' all have been pouring this poison in there? MR. KELLY: Object to the form. I can't address what may or may not have been important to the special master. I would have been happy to answer his questions or anyone else's if they had questions about this issue. Well, isn't it a fact, Dr. Kaley, that you all really didn't do a whole lot about this problem that you found in 1985? MR. KELLY: Object to the form. I don't know that, we prepared a plan to remove sediments from those portions REGIONAL REPORTING SERVICE, INC. 48 1 2 A. 3 4 5 Q. 6 7 A. 8 9 Q. 10 A. 11 12 13 14 15 Q. 16 17 IB 19 A. 20 21 22 Q, 23 superintendent? If that is what it says on that document that you are looking at, that he was, then I'm sure that is what he was. Do you remember working with him at that time? I remember him being in meetings and us having discussions, yes. About this particular problem? About this issue, yes. (Discussion held off record.) (Plaintiffs' Exhibit Number Four was marked for identification.) Let me show you Plaintiffs' Exhibit Four. If you would, take a look at Plaintiffs' Exhibit Four and, if you can, identify that for us. without a detailed reading of it, it is a proposal to do sediment removal from the ditches leading up to Snow Creek. All right. Would you turn to page two of that document. dp/"tr\\T*t ot?o/*\o*T'TW! cpoutht Tvrr* WATER PCB-SD0000005958 49 1 A. 2 Q. 3 A. 4 5 6 Q. 7 8 A. 9 Q. 10 11 12 A. 13 Q. 14 15 16 17 18 19 20 A. 21 Q. 22 A. 23 Q. Of the plan? Yes. Of the plan. It talks about -I'm sorry. You want page two of the exhibit, not page two of the plan. right? Yes. Page two of the exhibit, not the plan. I'm sorry, Dr. Kaley. I'm with you. This indicates there are three sections of a drainage ditch and Snow Creek are proposed for sediment removal? Yes. The first is about five hundred feet of a drainage ditch from sampling site one to a sampling site two. And that covers it from a -- The ditch comes out from under a culvert under the Bethel Missionary Baptist Church to a culvert under Route 202, Tenth Street. Yes, the old Route 202, yes. The old Route 202? Yes. What we call Tenth Street? REGIONAL REPORTING SERVICE, INC. 51 1. 2 3 4 5 A. 6 7 Q. 8 9 10 11 A. 12 13 14 15 16 17 Q. 18 19 A. 20 21 22 23 was proposed not to EPA or to the attorney general but to ADEM, is that right, the Alabama Department of Environmental Management? Excuse me. Yes. According to the cover letter, that's correct. Now, ADEM or che Alabama Department of Environmental Management had been involved with Mr. Henry Hudson and the EPA; is that correct? They talk about ADEM, this Henry Hudson letter. I don't see where it says he is from EPA, but I think I have a recollection that he was. I'll take your word for it. It does mention ADEM, so obviously they had some involvement. And they were supposed to coordinate things, is that right, ADEM? well, I don't see where -- Again, assuming you are reading from that letter. I don't see exactly where it says that. But okay. I'll take your -That would make sense. Since we 50 1 A. Yes. 2 0. Nothing south of Bethel then was 3 remediated, correct? 4 A. That's correct. 5 Q. And then there was -- 6 A. Well, according to the plan there was no 7 description of any plan to do that, to B remediate anything south of there. 9 That's correct. 10 Q. Now, there a stretch of ditch between 11 the Southern Railway rail yard tracks or 12 railroad tracks and Eleventh Street to 13 the confluence of the ditch and Snow 14 Creek. That's about twelve hundred to 15 fifteen hundred feet, correct? 16 A. That's what the document says, yes. 17 Q. And then there is a hundred feet of Snow 18 Creek? 19 A. Yes. 20 Q. Now, am I to understand that what 21 Monsanto did on this date or at a later 22 date after thiB plan was put in or . 23 proposed -- and by the way, this plan REGIONAL REPORTING SERVICE, INC. 52 1 2 3 Q. 4 5 6 7 8 9 10 A. 11 12 Q. 13 14 A. 15 16 17 Q. 18 19 20 21 A. 22 23 Q. subsequently wrote a letter to ADEM, that would make sense. But there was some conversation about that in this letter that Mr. Henry Hudson or this note that Mr. Henry Hudson wrote about this particular problem that he found out there. And his letter or notes were made 9-9-85 about NPL. What is that? In the context I would assume it would be the National Priorities List. What is the National Priorities List? what was it at that time? It was and still is a list of sites that are potential sites for activity under the CERCLA or Superfund regulations. And there is an indication in Mr. Hudson's notes that there would be a scoring process that would go on in '85. Is that correct? Yes. I mean, he talks about the possibility of that. It didn't happen chough, did it? WATER PCB-SD0000005959 53 1 A. 2 3 Q. 4 5 6 7 A. 8 9 10 11 Q. 12 13 A. 14 15 16 A. 17 18 Q. 19 20 21 22 23 Q. I don't recall that it did. I don't know. Well, y'all worked it out, didn't you, Dr. Kaley, where ADEM fixed it up for you? MR. KELLY: Object to the form. We didn't work anything out. We had meetings. We proposed a remediation plan. That was that. I don't know what ADEM or EPA might have done. Dr. Kaley, y'all did more than that. Monsanto did more than that, didn't you? I'm not -- " . MR. KELLY: Object to the form, no foundation. I'm not aware of anything more that we did. No. Aren't you familiar with the fact as you sit here today, Dr. Kaley, that Mr. Graddick left the attorney general's office -- MR. KELLY: Object to the form. -- and we got another person involved? REGIONAL REPORTING SERVICE, INC. 55 1 Q. 2 3 4 A. 5 Q. 6 7 A. 8 0. 9 10 11 A. 12 13 14 15 Q. 16 A. 17 Q. 18 A. 19 20 Q. 21 A. 22 23 Do you know whether or not Mr. Brown or Mr. Cheever or Mr. Foresman might have met him? I don't know. Who are they? We mentioned Mr. Brown. Would J. L. Brown be Jerry Brown? I believe so, yes. Would R. L. Cheever have anything to do with environmental activities in Monsanto at that time? I believe at Borne point in time -- I don't know exactly -- he was the environmental person at the Anniston plant. A compliance officer? I don ' t know. An environmental compliance person? I'll take your word for it. I don't know specifically. well, then, who is M. R. Foresman? He is a Solutia retiree at this point. He had remedial responsibilities within Monsanto and Solutia for a number of 54 1 2 A. 3 4 5 Q. 6 7 8 A. 9 Q. 10 11 12 A. 13 Q. 14 15 16 A. 17 Q. 18 A. 19 20 Q. 21 22 23 A. Aren't you familiar with that? No. MR. KELLY: Object to the form, no foundation. Do you know a gentleman who worked for Monsanto at the time named David Denner in about this same time frame? I do not know that name. Do you know him to be the plant manager of Monsanto Chemical Plant in Anniston, Alabama? I don't recall that name. Well, do you recall the name of an Honorable Donald Siegleman or Siegleman? Do you recall that name? I know who Mr. Siegleman is, yes. How is it that you know him? I believe he is the current governor of Alabama. Well, did you meet him when he was Attorney General Siegleman sometime in ' 88? Not that I recall. REGIONAL REPORTING" SERVICE, INC. 56 1 2 Q. 3 4 A. 5 6 7 Q. 8 9 10 11 12 13 14 A. IS Q. 16 A. 17 18 19 Q. 20 21 22 23 A. years. Was he working on remediation of the Anniston facility at that time? I don't recall. I don't know. I don't recall. I was not aware of that if he was. Well, in your previous deposition you indicated to the person who asked you the questions. Dr. Kaley, you just didn't know what happened. Y'all went ahead at some point in time and did this little project that Mr. Brown had laid out for ADEM. That's my understanding. That's what you did? Yes. Eventually we notified ADEM we were going to implement that plan and did so. Inplement the plan. Well, how much help did you have from then Attorney General Don Siegleman? MR. KELLY: Object to the form. I have no -- I don't know what you are WATER PCB-SD0000005960 57 1 2 Q. 3 4 A. 5 Q. 6 7 S 9 10 11 12 13 A. 14 Q. 15 16 A. 17 q. ia 19 A. 20 Q. 21 22 23 calking about. How much help did you give him? MR. KELLY: Object to the form. I don't know what you are talking about. Well, let me show you if we could a letter which we will mark as Plaintiffs' Exhibit Five and ask you to take a look at it. I'm sorry I don't have another one. (Plaintiffs' Exhibit Number Five was marked for identification.) I've read the letter. Okay. Now, can you look back on that back page and see who signed it? Yes . That's the plant manager of the Anniston plant; is that correct? That would seem to be correct, yes. Okay. And he is writing to Attorney General -- then Attorney General Siegleman and telling him it was a pleasure to see him at the dinner with REGIONAL REPORTING SERVICE, INC. 59 1 A. 2 3 Q. 4 5 6 7 a 9 A. 10 ii 12 13 14 15 Q. 16 17 18 A. 19 20 Q. 21 22 23 There's a statement to that effect in the letter, yes. Continued success with what? Was he running for something? Were y'all helping him out? Is that what you were doing? MR. KELLY: Object to the form, no foundation. I understand -- My understanding from this, since it is in the same sentence with the drug problems, is wish him continued success in his efforts to attack the drug problem, it is the same sentence. Then in the next sentence there or next paragraph you begin to talk about the PCB problem in Anniston; is that right? Well, not me, but the author of the letter did. Well, Mr. Denner. So we move from being scored and put on a National Priority List to a little bitty cleanup out there on Snow Creek; is that correct? 5B 1 2 3 A. 4 Q. 5 6 A. 7 Q. 8 9 A. 10 11 12 13 14 15 Q. 16 17 IB 19 20 A. 21 Q. 22 23 the government relations group from Monsanto. Is that correct? Yes. And that was on the 29th that they had him in? Yes. That's what the letter says. What was the government relations group from Monsanto? Well, at that time I don't know specifically. Basically it is a group that has responsibility for initiating and maintaining relations with the various government agencies that the company deals with. And then he also thanked him for taking the time from his busy schedule to address the Alabama Chemical Association and have dinner with us on March 23rd. Is that right? The letter says that, yes. Then it indicates they were proud of him for attacking the drug problem in the state and wished him continued success? REGIONAL REPORTING SERVICE, INC. 60 1 2 A. 3 4 5 6 7 8 9 10 11 12 13 14 15 Q. 16 17 18 19 20 21 22 A. 23 MR. KELLY: Object to the form. I don't know how that would be characterized, as big or little. And I don't know if there was any connection. Basically my reading of this letter is that whatever happened in '85 happened. We made our proposed cleanup. There is -- No action had been taken, and we were asking, you know -basically asking Mr. Siegleman if he wanted to get involved in seeing if we could implement our plan. That is the only thing I can think could be taken from that letter. How many of your neighbors that y'all had living around you at that time were in these meetings with the attorney general where y'all were talking to him about what you wanted to do down there on Snow Creek? MR. KELLY: Object to the form. There were none present that I recall in any of the meetings that I attended. WATER PCB-SD0000005961 61 1 Q. 2 3 4 5 6 A. 7 8 9 Q. 10 A. 11 12 13 14 15 Q. 16 17 18 19 20 21 22 23 A. How many of the folks that catch fish and eat fish out of Choccolocco Creek that probably were filled with that poison were at that meeting. Dr. Kaley? MR. KELLY: Object to the form. Hell, number one, I disagree with your characterization if you are talking about PCBs. I am talking about PCBs. Then I disagree with your characterization of them as a poison. But I'm not aware of any meetings that were held with fisherman from Choccolocco Creek. Well, while we are on that subject, didn't President Bush just sign a treaty with a number of other people or a number of other countries in this world we live in where they are all going to try to get rid of PCBs from the environment all over the world? Do you remember the treaty that he just signed? I don't know whether he signed it or REGIONAL REPORTING SERVICE, INC. 63 1 A. 2 3 4 5 6 7 Q. 8 9 A.v 10 11 12 13 14 15 16 Q. 17 18 19 A. 20 21 22* 21 Well, DDT is another one of the compounds that is addressed. But interestingly, they decided that they can't get rid of DDT because it serves a useful purpose. I mean, it is on that list, yes. And some of these PCBs act pretty much like dioxins, don't they? That is a very conplicated discussion. We can get into it if you wish. I'm not going to agree with that statement just standing right out there. If you would like for me to discuss under what conditions I would agree with you I will. Well, there are some of these PCBs that act like dioxins, are there not. Dr. Kaley? There are -- There is a small sub-class of PCBs that bind to the -- what is called the dioxin receptor or the AH receptor in animal and probably human bodies They are presumed to -- Because DWfTrnvraT DCDnoTtwr: cfoirTr Tvrr 62 1 2 3 4 5 6 7 Q. 8 9 10 11 12 13 A. 14 15 16 17 18 Q. 19 20 A. 21 22 23 Q. whether Ms. Whitman signed it. But the u.s. did sign a treaty on persistent organic pollutants, as they are called by that treaty, and to address various issues with regard to a number of chemicals including PCBs. Yes. But didn't he mention -- Didn't President Bush mention in his statement about the signing of that treaty by this country the fact that PCBs were one of the substances he waa interested in getting rid of? I don't know whether he did or did not mention them specifically. They are certainly one of the chemicals that were involved in the treaty. He may very well have. I don't know. Because it was a toxic substance that caused adverse health effects in people. No. Because it is -- It is what is characterized as a persistent organic pollutant. Like DDT? REGIONAL REPORTING SERVICE, INC. 64 1 2 3 4 5 6 7 8 9 10 11 Q. 12 13 14 A. 15 16 Q. 17 18 A. 19 20 21 22 23 they bind to that receptor, they are presumed to have some of the same effects that dioxin might have. But that is basically a presumption based on enzyme binding studies. And really there is very little either animal or human health data to support that assertion. But if they do, they do it at a very much reduced potency compared to dioxin. And dioxins have just been named or designated by the EPA as a known carcinogen, haven't they? I don't know that the EPA has designated them that. Some groups have, yes. A cancer causing substance; is that correct? One specific congener, c-o-n-g-e-n-e-r, of dioxin has been named as a known human carcinogen. But there are a hundred and thirty-five --or two hundred and ten related compounds not even including the PCBs that those ocrsmxTaT. oponoTTwr? sttpvtrr thp WATER PCB-SD0000005962 65 1 i' '' 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ' 17 18 19 20 21 22 23 , Q. A. Q. A. Q. A. Q. A. Q. A. agencies have refused to make that determination on. So there is one specific congener of dioxin that has been named as a human carcinogen. That is correct. Or it has been listed. Isn't it a fact that a byproduct of PCBs, Dr. Kaley, is dioxin? No, that is not true. When it burns at certain temperatures it is, isn't it? That is not true. So dioxins don't show up in the atmosphere when these PCBs catch on fire and bum? Is that what you are saying? That's correct. That's correct. Dibenzofurans don't? No, dibenzofurans may under certain circumstances. Dibenzofurans may. That is a pretty nasty thing, isn't it, a pretty poisonous substance, isn't it? well, it has itB own set of toxicities associated with doses and -- i REGIONAL REPORTING SERVICE. INC. 67 1 2 3 4 5 6 7 B Q. 9 10 11 12 13 14 A. 15 16 17 Q. 18 A. 19 20 21 22 Q. 23 point we may have had a discussion with the attorney general's office about inplementing that plan, and eventually we implemented that plan. We didn't work out anything. Everything we did is documented in the document you are showing me. That was after the date of that letter and after y'all had him to the Chemical Association and after you had him to your political action wing of your group? MR. KELLY: Object to the form. I assume you are using Che royal "you" because I had no involvement in any of that. Well, Monsanto. Sure. I don't see anything wrong with that. If you have an issue that you need to deal with a government agency. you deal with that government agency. You never called a town meeting about it, did you? nr?n t r\vr t nr!r>r>r>T'Ttr nw 66 1 2 3 4 5 6 `7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q. A. Q. A. It is a poison, isn't it? They don't want people to be affected by it, do they? I don't know what definition you are using of "poison." It has toxicities when tested in animal testing, yes. So as we sit here today, you didn't tell anybody along that creek or in the neighborhood about this 1985 thing. Y'all did as Monsanto usual does, and you went to somebody like the then attorney general of the State of Alabama and worked it out, didn't you? MR. KELLY: Object to the form, no foundation. I can't answer that question. I know what involvement I had and what went on. I don't believe we worked anything out. He worked with the agencies to understand and characterize the extent of PCBs in the sediments. We proposed a remediation plan. At some point we -- I was not aware of this letter. At some REGIONAL REPORTING SERVICE, INC. 68 1 2 3 4 5 6 7 8 '9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A. Q. A. Q. A. Q. A. Q. A. Q. I'm not aware of any. Never had a meeting at Bethel Church to tell those folks about it, did you? Not that I'm not aware of. And that is not the first time, is it. Dr. Kaley, that you all knew that PCBs were leaving your plant site in this neighborhood out there? You in fact found out about it as early as 1983, didn't you? Monsanto did, didn't you? I don't know specifically what you are referring to. Well, didn't y'all find out from the Conservation Department that PCBe were getting all the way down into Snow Creek and Choccolocco Creek? I'm aware of some investigations of the sediments in Choccolocco Creek in about that time frame. About 1983? '82, 'S3, sometime in that time frame. Well, you didn't say anything, did you, Dr. Kaley, to the special master about nr*^TrMkTT octv~\o'tt x?r* etovTrc rwr WATER PCB-SD0000005963 69 1 2 A. 3 4 Q. 5 A. 6 7 Q. 8 9 A. 10 Q. 11 12 A. 13 Q. 14 A. IS 16 Q. 17 18 19 20 21 Q. 22 23 that particular situation, did you? In my affidavit I was addressing summarizing the history of -Just a yes or no will do. Dr. Kaley. In my affidavit I was addressing the issues that had arisen since 1993. But you didn't say anything about knowing about it in 1983, did you? No, I did not. Now, that dealt with PCB sampling on Snow Creek, didn't it? I don't recall as I sit here. And also Choccolocco Creek? I recall Choccolocco Creek. I don't recall Snow Creek. I'm sorry. I misspoke. MR. STEWART; Mark that, please. (Plaintiffs' Exhibit Number Six was marked for identification.) Let me show you Plaintiffs' Exhibit Six and ask you to take a look at it and see if that is not in fact a letter from REGIONAL REPORTING SERVICE, INC. 71 1 Q. 2 3 4 5 6 A. 7 8 Q. 9 10 11 12 13 14 15 16 17 A. 18 Q. 19 20 21 22 23 --to try to resolve this problem that you had with the fish down there in Choccolocco Creek? MR. KELLY: Object to the form, no foundation. I have no idea what you are referring to. Let me show you Plaintiffs' Exhibit Seven and ask you to take a look at it if you would. Now, this is what is called a preparedness statement. I want you to read over it, and then I want to ask you some questions. (Plaintiffs' Exhibit Number Seven was marked for identification.) I've read it. Now, if you look on page two --On page one it talks about core samples of sediments that were taken from Choccolocco Creek and says the Conservation Service had gone down there to take them in preparation for dredging 70 1 2 3 4 A. 5 Q. 6 7 8 A. 9 Q. 10 11 12 13 A. 14 15 16 17 18 A. 19 20 Q. 21 22 23 Mr. Robert Thompson of the Soil Conservation Service to, again. Mr. Brown. Is that right? That is what that letter is, yes. And it talks about a PCB sampling program that was taking place on Choccolocco Creek? It mentions that, yes. Now, y'all tried to diffuse that, didn't you, before you got this letter and before you got -- had this meeting with the Soil Conservation people? I have no idea. MR. KELLY: Object to the form, no foundation. . THE WITNESS: Excuse me. I'm sorry, Mike. I have no idea what you are referring to. Well, you used the normal public relations techniques that y'all are known for, didn't you -- MR. KELLY: Object to the form. REGIONAL REPORTING SERVICE, INC. 72 1 2 3 A. 4 Q. 5 6 A. 7 Q. 8 9 10 11 12 A. 13 Q. 14 A. 15 16 17 Q. 18 19 A. 20 21 Q. 22 23 the creek. And this is March 16th of 1983? Yes. This is a statement y'all prepared. isn't it, Monsanto? Presumably, yes. Well, it has an MONS 019321 on it. and it was produced by your folks to us. Would you assume with me, Dr. Kaley, that that is a Monsanto document, press release? Oh, I said it appears to be, yes. On the last page, you say on page two -I wouldn't say It is a press release. It is a preparedness statement. I think that is different. Is this to tell the folks at the plant what to say if anybody makes inquiry? That is basically what I would understand it to be, yes. On the last page it talks about -- last paragraph on the first page says PCBs are ubiquitous in the environment. WATER PCB-SD0000005964 73 1 2 3 A. 4 Q. 5 6 7 8 9 10 11 12 13 14 15 A. 16 Q. 17 18 19 20 21 22 23 A. That's a big old word. Hhat does that mean? It basically means everywhere. Everywhere. And they are commonly found in small trace amounts in many rivers and streams. But then on the next page it says for these reasons it would be unproductive to try to identify the source of PCBs in Choccolocco Creek especially since the creek readily accepts surface water runoff from much of the City of Anniston. It is sort of misleading, isn't it, Dr. Kaley? MR. KELLY: Object to the form. I don't know what you mean by that. . Well, isn't that a misrepresentation of the facts that you know or whoever put this thing together knew to be true at the time this statement -- this preparedness statement was put together on March 16th of '83? MR. KELLY: Object to the form. I guess I don't understand what you are REGIONAL REPORTING SERVICE, INC. 75 1 Q. 2 A. 3 4 5 6 Q. 7 A. 8 9 10 11 12 Q. 13 14 15 16 A. 17 18 Q. 19 20 21 22 23 Q. The samples --- the honest statement is that about two years later, based on another incident, that is exactly what happened. So, I mean -Based on what? Based on the incident we just got done talking about in 1985, that is basically what happened. There were investigations of Snow Creek and the ditches. Well, why didn't y'all report what you already knew in 1963 to the people at ADEM? ADEM was in existence, wasn't it, in '83? I'm sorry? I don't understand your question, Mr. Stewart. Why didn't you report the fact. Dr. Kaley, that you all were the source of PCBs in Choccolocco Creek and you knew it -- MR. KELLY: Object to the form. --at the time this preparedness #**%** 74 1 2 3 4 5 6 7 8 9 10 11 12 13 Q. 14 15 16 17 18 19 20 A. 21 22 23 addressing. I mean, the fact it accepts surface water runoff from much of the City of Anniston is true. Whether you are questioning whether it is productive or not to try to identify the source is -- You know, in the person's mind who wrote this, that may have been a true statement, depending on the levels. I'm not familiar with the levels and how they compare to other levels. But if the levels were low enough, it probably is a true statement. Well, isn't it a fact, Dr. Kaley, that if they had come up that creek, they would have hit Snow Creek and come up Snow Creek and wound up, my goodness, right over there around those ditches and tributaries that led away from your plant, wouldn't they? I don't know the answer to that. I don't know where the samples were taken. I don't know the data in between those two. I mean -- REGIONAL REPORTING SERVICE, INC- 76 1 2 3 4 5 6 7 A. 8 9 Q. 10 A. 11 12 13 14 Q. 15 A. 16 17 18 19 Q. 20 A. 21 Q. 22 23 A. statement was put together on March 16th of 1983? By you, I mean Monsanto. There were people at Monsanto Chemical Company who were fully aware of the fact that y'all were the source. MR. KELLY: Object to the form. I -- Was your original question why didn't we tell ADEM? Yes. I assume ADEM was aware of this. They were working with us with other government agencies. I'm sure they were aware of it. Are you sure they were aware of it? I would presume so. I'm not sure of that. No, I cannot be sure of that. I would presume they would have been aware of it. You all didn't tell them, did you? I don't know whether we did or not. Well, you didn't tell anybody at all at EPA, did you? I don't know whether we did or not. i-ir*,-*rrM.ru r otOTPOtTT/^B* nir WATER PCB-SD0000005965 77 1 Q. 2 3 4 5 7 8 A. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Well, did you tell those poor people who were catching fish down there on Choccolocco Creek and eating them at that time that they had levels of a toxic substance that was poison and might harm them? MR. KELLY: Object to the form. Well, I'm sure we didn't say any of those words because we never would say any of those words and I wouldn't say those words because I don't believe PCBs are a poison. But the fact is that this had nothing to do witTi fish. It was sediment levels and as it says in this statement. Not having seen all of the data as I sit here, I don't know exactly what the levels are, but they were found to' be relatively low. And it is my understanding of the outcome of that eventual situation here, the people agreed with that and the dredging plan was eventually implemented. I just REGIONAL REPORTING SERVICE, INC. 79 1 A. 2 Q. 3 4 A. 5 6 7 Q. 8 9 10 11 12 13 A. 14 15 16 17 18 19 Q. 20 21 22 23 About this thing? The meeting that took place with y'all and - I'm not aware that this meeting was communicated to the residents of Anniston, no. So when you said -- In connection with your affidavit to the special master and those folks you didn't mention this 1983 thing, what else did you leave out of that affidavit. Dr. Kaley? MR. KELLY: Object to the form. That affidavit was prepared to provide a summary of the situation at the Anniston plant since 1993. So to the extent that there were things that occurred before 1993, I don't know specifically what was included or what wasn't included. Now, Dr. Kaley, you know good and well that they had had problems at this plant site before with PCBs, didn't you, leaving the plant site, getting into Snow Creek, significant discharges 78 1 2 Q. 3 4 A. 5 Q. 6 A. 7 8 Q. 9 10 11 A. 12 Q. 13 14 15 16 17 IB 19 A. 20 21 Q. 22 23 don't know. Now, when was that dredging plan put in place? I don't know. What part did y'all have in it? I don't know. None that I'm aware of. I don't know. If it wasn't your PCBs, what in the world were y'all meeting with them about? Meeting with who? The Conversation Department. This letter that we saw to Mr. Brown says that -- from Mr. Thompson -- y'all were going to have a meeting at ten a.m. on December the 5th, 1963, to discuss the results of the PCB sampling on Choccolocco Creek. I'm not aware of what led up to that meeting. Well, you certainly didn't tell any of your neighbors either, did you, about this thing that took place? REGIONAL REPORTING SERVICE, INC. BO 1 2 3 4 Q. 5 A. 6 7 8 Q. 9 10 11 12 A. 13 14 Q. 15 A. 16 17 18 Q. 19 20 A. 21 Q. 22 A. 23 Q. through the atmosphere? You knew that, didn't you - - MR. KELLY: Object to the form. -- in 1983? I'm not aware of 1963 information that there were any, let alone significant discharges to the atmosphere, no. Is it your statement as you sit here today that you didn't know in 1983 that there had been a history of discharges from that plant site of PCBs? Into the air? I'm sitting here saying that. Well, any way first. Dr. Kaley. No. we knew when we began investigating outfall of the plant in the late 1960s that there were discharges at the plant. You are telling me y'all knew about it. is that correct, in 1960? '69, in the late 1960s. Late '60s? Yes. Well, hadn't you done some studies and WATER PCB-SD0000005966 81 1 2 A. 3 4 Q. 5 6 7 8 9 10 A. 11 12 13 14 15 16 Q. 17 18 19 20 21 22 23 things about what you were losing? Those were initiated in the late 1960s, yes. Well, in fact. Dr. Kaley, y'all knew about it a little bit earlier than that. didn't you? You knew you were losing some of the materials that were manufactured in the plant, including PCBs, earlier than 1969, didn't you? I mean, certainly we were aware of discharges of the plant at various times. I don't know what you are specifically referring to. If you have a document you would like me to look at. I will be happy to address it. . I'm asking you if you were aware of PCBs that were leaving the plant site in say 1966 -- or at least Monsanto was. And let me just show you a document we will mark Exhibit Eight. (Plaintiffs' Exhibit Number Eight was marked for identification.) REGIONAL REPORTING SERVICE, INC. S3 1 2 3 4 Q. 5 6 A. 7 Q. 8 9' 10 11 12 A. 13 14 15 Q. 16 17 A. 18 Q. 19 20 21 A. 22- Q. 23 A. says. It is talking about HC1 waste. I don't know. I don't know what anybody might make of that statement. Well, was it coming from the area where y'all made PCBs? Some of it was, yes. Okay. Isn't it a fact, Dr. Kaley, that as you and I sit here today that that is still creating problems on that plant site according to EPA? MR. KELLY: Object to the form. There is another one of your "that's." I don't know what you are addressing. I don't know what you are referring to. Well, doesn't the manufacturing site even today have some releases of PCBs? Not that I1m aware of. As you sit here today you just don't know of any that are coming off your plant site today? I'm not aware of any, no. You don't know of any? That's correct. 82 1 Q. 2 3 A. 4 Q. 5 6 7 8 9 A. 10 Q. 11 12 A. 13 14 15 16 17 18 Q. 19 20 21 22 23 A. Take a look at that and let me ask you some questions about it. I've read it. Now, Dr. Kaley, doesn't that indicate in this exhibit, Exhibit Eight, that there were some PCB laden materials that were leaving your plant site, going into Snow Creek? No, sir. It doesn't have anything to do with PCBS? I only see one mention of PCBs. And it says HC1, hydrochloric acid waste from the biphenyl and Aroclor area plus cooling water and wash water from the Santowax area. It is talking about HC1, not talking about PCBs. You are saying that wouldn't indicate to somebody that had one eye and half a brain that PCBs might be leaving the plant site? MR. KELLY: Object to the form. I'm just repeating what the document REGIONAL REPORTING SERVICE, INC. 84 1 Q. 2 3 4 5 6 A. 7 8 9 10 11 12 13 14 Q. 15 16 17 18 A. 19 20 21 22 Q. 23 A. So if somebody from EPA said they had some concerns about PCBs leaving your plant site today and showing up in wells, for instance, that were north of your plant, you don't know about that? Well, having concern -- I mean, I don't know what you are referring to. But somebody may have said they have concerns about that, may have said that -- You know, I don't know what they said after that. But because someone has a concern doesn't mean it is happening. And they also indicated -- Well, they said they found PCBs. Y'all indicated you found PCBs in two monitoring wells north of the plant. I don't recall if they were north of the plant. We have had isolated detections of PCB9 in unfiltered monitoring well samples. That's correct. Today, in 2001? I don't know whether we have 2001 data WATER PCB-SD0000005967 85 1 2. 3 Q. 4 A. 5 6 Q. 7 8 A. 9 Q. 10 A. 11 12 13 Q. 14 15 16 A. 17 Q. 18 19 20 A. 21 22 23 or not. You may or may not be right. I don't know. And y'all were manufacturing PCBs -But the ground water is being captured. It is not being released. The ground water north of the plant is being captured? Yes, sir. All of it. Dr. Kaley, as we sit here? I don't know the total extent, but I understanding it is nearly all of it, yes. Then this talks about a stream, on the first page of Plaintiffs' Exhibit Eight, that is located in Sweet Valley. It does say that. Do you know where Sweet Valley is? Isn't that that area north -- east of the plant? Nell, my understanding would be that it is one of the areas east of the plant. I don't know specifically what Sweet Valley refers to, no. But I know it is REGIONAL REPORTING SERVICE, INC. 87 1 2 Q. 3 A. 4 5 6 7 8 9 10 Q. 11 12 A. 13 14 15 Q. 16 17 18 A. 19 20 21 22 23 Q. yes. And is east of the plant? Yes.. I'm not arguing with you. I just don't know specifically which part of that area is Sweet Valley versus which part is Cobbtown. I'm not -- I agree with your characterization that is a stream in an area east of our plant, yes, or an area over there. And that is because of PCBs, the PCB contamination? The current remediation activities are driven by PCB impacted soils. That's correct. You bought a lot of houses in there and tore them down for that very same reason, haven't you? We initiated a property purchase program and demolished the houses and incorporated that cover --or that area under our remedial cover. Yes, that's correct. And literally destroyed that whole 86 1 2 3 Q. 4 5 6 A. 7 8 9 10 11 12 13 14 IS 16 Q. 17 18 19 20 A. 21 22 23 generally in that area east of the plant. Well, isn't that where y'all did your work on the Bethel Church and in those ditches? Well, the problem I have is that part of it is referred to as Cobbtown, and part as of it is Sweet Valley. Exactly what Sweet Valley referred to here, I don't know the answer to that, no. I know that that area is referred to as the Cobbtown/Sweet Valley area by, you know, the regulators and others. I don't know specifically what the stream located in Sweet valley was. I just don't.know. Dr. Kaley, isn't it a fact that that is where y'all have been attempting to do some remediation work? MR. KELLY: Object to the form. We certainly have done a great deal of remediation work in the area generally -- which I generally understand to be characterized as Cobbtown/Sweet Valley, REGIONAL REPORTING SERVICE, INC. 88 1 2 3 4 A. 5 6 7 8 9 10 11 12 13 Q. 14 15 16 17 18 A. 19 20 21 22 23 Q. little community in there because of PCB contamination; isn't that correct? MR. KELLY: Object to the form. Well, I don't know that I would characterize it as that. Those people were offered the opportunity to sell their homes to the company under the terms of the property purchase program. And those homes, the ones that we have purchased, have been destroyed and incorporated under the cover. That is correct. Because you all were contaminating those homes as early as 1966 and probably long before that, weren't you? MR. KELLY: Object to the form, no foundation. I don't know that the dates have been established one way or the other. But there were PCB impacted materials in that area that were best dealt with by obtaining the property in that area. Now, in 1966 y'all did not share with WATER PCB-SD0000005968 89 1 2 3 4 5 6 7 a A. 9 10 n Q. 12 A. 13 14 IS Q. 16 17 A. IB 19 Q. 20 A. 21 * 22 Q. 23 those people who lived in Cobbtown and Sweet Valley anything at all about what your findings were about waste materials, poisons leaving your plant site and going through that property over there east of the plant, did you? MR. KELLY: Object to the form. 1 don't see anything in here that talks about poisons, but I'm not aware of communications with the community. Is parathion not a poison? I suppose parathion is a poison. I will grant you that parathion is a poison. Yes, parathion is a poison. Doesn't it mention that in Exhibit Eight? Yes. I'm sorry. You are correct. I misspoke. Did you tell them anything about that? I'm not aware of what was or wasn't told to the community. But y'all knew as a result of some tests and things that were done by a gentleman REGIONAL REPORTING SERVICE, INC. 91 1 2 A. 3 4 5 6 7 Q. 8 9 A. 10 11 Q. 12 A. 13 14 15 Q. 16 A. 17 18 Q. 19 20 21 A. 22 23 in the letter, did he? 19B3, seventeen years after the date you are tracking, we had moved on and were addressing different issues and dealing with the issues we had on our plate at that time. what do you mean different issues? PCBs is what y'all began to find? Well, in 1966 there wasn't even knowledge there were PCBs. There wasn't? No, sir. In 1983 we had information about what we were dealing with at that time. Are you telling me -I'm not sure when that dinner was. I think that dinner was in '88, not 1983. Are you celling me now as we sit here today that y'all didn't know about PCBs leaving the plant site in 1966? I don't think we had confirmation of that fact, no. MR. STEWART: Okay. I'd like to _____ __ ____ 1 90 1 2 3 4 A. 5 Q. 6 A. 7 8 Q. 9 10 11 12 A. 13 14 Q. 15 16 17 18 19 20 A. 21 Q. 22 23 named Fuhrmeister from Mississippi State University that you had a problem in this plant, didn't you? Do you want me to correct you or not? That materials leaving the plant site -Well, Mr. Fuhrmeister was a plant employee. He was not from Mississippi. Okay. I'm sorry. Ferguson. I get those two mixed up. And he was reporting to the technical services superintendent, who was Mr. Fuhrmeister? That's correct. That's my understanding, yes. why didn't you tell the attorney general of the State of Alabama when y'all were having that supper with him about this problem that had existed for as far back as 1966? why didn't you tell him that? MR. KELLY: Object to the form. Because I wasn't at that dinner. Why did Mr. Denner not tell him? Apparently no one said anything. Mr. Denner didn't say anything about it REGIONAL REPORTING SERVICE, INC. 92 1 2 3 4 5 6 7 8 9 10 11 12 Q. 13 14 A. IS 16 17 Q. 18 19 20 21 22 23 put all these in just for the . record, if we could, as one exhibit. Can we do that? MR. KELLY: Yes. MR. STEWART: We will make this Nine. It is a series of reports there from Mr. Ferguson. (Plaintiffs' Exhibit Number Nine was marked for identification.) I'm sorry. I'll give you time to take a look at that. Do you want me to read these in detail or look at the titles or how much time -Well, if you can take a look at it, I'm going to ask you some questions about them. It has to do, I'm going to state, with some tests that Mr. Ferguson and others did on fish that they found in Choccolocco Creek down near the Anniston sewage treatment facility, and there WATER PCB-SD0000005969 93 1 2 3 4 5 A. 6 7 e 9 10 11 12 Q. 13 A. 14 15 16 Q. 17 IB 19 20 21 22 23 were some other collection sites, the bridge on Highway 21, Jackson Shoal, four miles east of Boiling Springs, near Che Anniston sewage plant. I'm just -- Mr. Stewart, I'm just trying to determine do you want me to take the time to read all these, or do you want to ask your questions and see if I can answer them without reading them. What is your preference? I will be happy to sit here and read them. Well, it is up to -If you are going to talk -- ask in some detail, I probably need to take the time to read in detail. Well, I just have a few questions to ask you about it. Maybe we can get to the heart of the matter. But you have indicated previously in response to some of the questions I've asked you that y'ail were surprised to find -- And I don't want to put words in your mouth, Dr. Kaley. But y'all were surprised to REGIONAL REPORTING SERVICE, INC. 95 1 A. 2 3 4 5 6 7 a 9 Q. 10 11 A. 12 13 14 Q. 15 A. 16 Q. 17 18 A. 19 020 A. 21 22 23 Q. My understanding is that there had been a fish kill in Choccolocco Creek and that we engaged Mr. Ferguson to do investigations to determine if we could find the source of that fish kill or if the source of that fish kill was associated with discharges from our plant. What did y'all think it was killing those fish, parathion? My understanding is that is basically the material that was the primary suspect, yes. Is parathion a pesticide? Yes, it is. Is it a chemical compound that has a makeup somewhat similar to DDT? NO. Is DDT more similar to PCBs? Yes, I think that is a fair characterization. DDT is more similar to PCBs than -Hydrocarbon, is that what you call it? 94 1 2 3 4 A. 5 6 7 Q. 8 A. 9 Q. 10 11 12 13 14 15 16 A. 17 18 19 20 21 Q. 22 23 find PCBs that were leaving the plant in I think '83. Is that what you said, or was it '85? No. I said we were surprised to find PCBs leaving the plant in storm water in 1993. 1993? Yes, sir. But you were aware of the fact that PCBs were leaving the plant site as far back -- and contaminating creeks, property. people, everything else as far back as 1966, weren't you? MR. KELLY: Object to the form, no foundation. I am vaguely aware of the content of these Ferguson reports. I don't recall any specific statement that would suggest that we were aware of PCBs leaving the plant at that time. Well, what were y'all looking for when you had Dr. Ferguson over there from Mississippi State? REGIONAL REPORTING SERVICE, INC. 96 1 2 3 4 A. 5 6 7 8 9 Q. 10 11 12 A. 13 14 15 16 17 Q. 18 A. 19 Q. 20 21 A. 22 Q. 23 I'm just trying to get used to these terms. Persistent in the environment, has adverse health effects? Well, PCBs and DDT are characterized as chlorinated hydrocarbons. Under some conditions they are persistent in the environment, and they have health effects in some animal species. Okay. And you determine what you are looking at by an analyses or tests. don't you, Dr. Kaley? Well, I will answer yes, assuming I understand what you mean. There are tests which you can use on environmental samples to determine if various chemicals are present in those samples. Like fish? Fish. And is gas chromatograph something you are familiar with? Yes. Isn't that what he was using. Dr. Ferguson from Mississippi State WATER PCB-SD0000005970 97 1 2 A. 3 Q. 4 5 6 7 8 9 A. 10 11 Q. 12 13 14 15 16 17 18 A. 19 20 Q. 21 22 23 A. University? Some form of that instrument, yes. Doesn't it make a graph on a little old sheet of paper or a tracing on a little old sheet of paper and you see certain peaks and you count the peaks and you know what it is? isn't that basically what you do? That is a rough characterization of the technique in that time frame. And didn't Denzel Ferguson, this professor of zoology that y'all had from Mississippi State over there, that old country boy from down there in Mississippi, find something that was sort of unusual? MR. KELLY: Object to the form. I don't know what you are talking about. I- don't know what your question is. Hell, take a look at page four of his letter that is dated April the 6th, 1967, Dr. Kaley. Okay. I have that letter. Page four, REGIONAL REPORTING SERVICE, INC. 99 1 A. 2 3 Q. 4 5 6 7 A. 8 9 Q. 10 11 12 13 A. 14 15 16 17 Q. 18 19 20 A. 21 22 23 Q. There are indications of unknown peaks in his report, yes. They were not unknown to y'all, were they, Dr. Kaley? MR. KELLY: Object to the form, no foundation. My belief is, yes, they were unknown to us. Now, Dr. Kaley, we are talking about Monsanto, a company that has tremendous research capability, are we not, even at this time, even in the '60s? Well, I don't know what "tremendous" means. It was comparable. It was certainly a respectable research capability, yes. Certainly. And this is a product that we are talking about that y'all made. that you tested all the time, PCBs? I would not say it is a product we tested all the time, certainly not with gas chromatography, no. Well, that is not something that was 98 1 2 Q. 3 A. 4 Q. 5 6 7 8 9 10 11 12 13 14 15 16 A. 17 18 19 Q. 20 21 22 23 did you say page four? Yes. Okay. And there is a little note down there at the bottom of that page, and he is talking about these peaks that he is finding. He said two peaks resemble parathion and DDE but their partition coefficients -- and I don't know anything at all about that, but you are an analyst, analytical chemist, and I assume you know what he is talking about. But he said those peaks didn't match things that were pesticides, wasn't parathion. Yes. He said they did not match two specific pesticides, parathion and DDE. That's correct. And he was finding something in that report that he prepared for y'all that was a little different from what he was looking for, from the parathion, wasn't he? REGIONAL REPORTING SERVICE, INC. 100 1 2 3 4 A. 5 Q. 6 7 8 A. 9 10 11 Q. 12 A. 13 14 15 Q. 16 17 A. 18 Q. 19 A. 20 Q. 21 A. 22 Q. 23 just unique in all the world, wasn't something that was invented by Monsanto, was it? I'm sorry? Gas chromatograph being used to test these, that wasn't invented by somebody at Monsanto, was it? The gas chromatograph was not invented by somebody at Monsanto. That's correct. Bought it off the shelf, didn't you? I don't know to the extent they were available off the shelf or not. It may have been and may not have been. well, y'all had them there in the lab, didn't you -Had them where in what lab? -- in Anniston? In Anniston? Yes. In Anniston in 1966, I don't know. Well, you certainly had them in St. Louis, didn't you? WATER PCB-SD0000005971 101 1 A. 2 3 Q. 4 5 6 7 e A. 9 10 Q. n 12 A. 13 14 Q. 15 16 17 A. IB 0. 19 A. 20 Q. 21 A. 22 Q. 23 A. There were gas chromatographs in St. Louis. And y'all knew exactly what Dr. Ferguson was finding at that time. He was finding PCBs in those fish, wasn't he? MR. KELLY: Object to the form, no foundation. There is nothing in this report to indicate that those peaks were PCBs. Isn't that what y'all later found in the f ish7 PCBs were later found in fish in Choccolocco Creek, yes. Right around the time that Dr. Ferguson was doing his testing; isn't that correct? well, four to five years later, yes. Pour to five years later? That's my understanding, yes. Well -Two to three years later. I'm sorry. Two to three years later? '68, '69 time frame. REGIONAL REPORTING SERVICE, INC. 103 1 A. 2 Q. 3 A. 4 Q. 5 A. 6 7 Q. B A. 9 Q. 10 11 12 13 Q. 14 15 16 17 A. ia 19 Q. 20 21 22 23 In 1966? Uh-huh (indicating yes). No, sir. I didn't join the company -Did you work with him later? Yes. I didn't join the company until 1973. Has he working with them at this time? In 1966, I don't believe so, no. Let me show you Plaintiffs' Exhibit Ten. (Plaintiffs' Exhibit Number Ten was marked for identification.) There is a Monsanto document dated May 26, '69, from an Elmer P. wheeler. Do you know Mr. Hheeler to be an employee of Monsanto? He was prior to his retirement and subsequent death. The last paragraph on the end of the page --on the second page, rather, the end of this document, he talks about a gentleman named Dave Nelson. What does MRC stand for? 1 102 1 Q. 2 3 4 5 6 A. 7 8 A. 9 10 11 Q. 12 A. 13 14 Q. 15 A. 16 Q. 17 A. IB 019 A. 20 21 Q. 22 A. 23 Q. Well, since y'all had been discharging at the creek and to that community for years, you certainly had a pretty good idea of what you were looking at, didn't you? I can't speak -- MR. KELLY: Object to the form. --to what those people may or may not have known. But I don't think that is necessarily correct because, you know -who is B. P. Wheeler? -- whoever was working with the researchers in Mississippi State. who is E. P. wheeler? who is I. P. wheeler? Uh-huh (indicating yes). I presume it is Elmer wheeler. Who is Mr. Tucker? Scott Tucker was an analytical chemist in St. Louis. Did you work with him -Yes, sir. --at that time? REGIONAL REPORTING SERVICE, INC. 104 1 A. 2 3 Q. 4 A. 5 6 7 Q. a 9 10 11 12 13 14 15 A. 16 Q. 17 18 A. 19 Q. 20 21 22 23 To me it stands for Monsanto Research Corporation. Research Corporation? Yes. It was an independent arm of Monsanto based in Dayton, Ohio, for many years. Okay. And Mr. Nelson was apparently talking to Elmer Wheeler, and he told him that in the course of the meetings some of the FWPCA boys raised a question as to what Monsanto in Anniston, Alabama, does to control the escape of polychlorinated biphenyls or waste product getting out of the plant. Is that a question? I was about to ask you one. I just want to make sure you know where I am. I'm with you. He said, "Obviously Dave wouldn't have any of the details of our programs in AnniBton but passed this word on to me with the thought that we can anticipate that the feds will be looking at creek, WATER PCB-SD0000005972 105 1 2. 3 4 5 6 7 8 9 10 11 12 A. 13 14 15 16 17 18 19 20 21 22 Q. 23 A. river, or lake water and mud sampleB below Anniston for PCBs." Now, why in the world did Mr. Wheeler say that if y'all didn't have a pretty good idea that PCBs were getting out to that creek. Snow Creek, from your plant site and down into Choccolocco Creek sometime before May 26 Of 1969? MR. KELLY: Object to the form, calls for speculation. I believe -- I mean, I think that is -Sometime before 1969 is not necessarily 1966. It could have been May 25th, 1969. I mean, obviously I'm exaggerating, but in that general 1968*69 time frame the company began investigations of discharges from the plant focused on the potential for PCBs discharges. And there is nothing in this that is inconsistent with that. Never had done it before? Prior to that effort, not that I'm aware REGIONAL REPORTING SERVICE, INC. 107 l A. 2 Q. 3 A. 4 5 Q. 6 7 8 A. 9 10 11 12 13 14 15 16 Q. 17 18 19 20 21 22 23 A. Is that a question? Yes, that's a question. You will -- I don't understand the question. It is a little late for Monsanto to be looking for PCBs in 1966, isn't it? MR. KELLY: Object to the form. There was no reason to believe they were in the environment. There was no reason prior to that to begin to look for them. So I don't know how to answer your question. No, I don't believe it was a little late. I believe Monsanto acted promptly and expeditiously once those reports hit the scientific literature. Hell, let me ask you something, Dr. Kaley. Isn't it your responsibility as a chemical manufacturing company to determine the properties of a product that you are going to foist on mankind by selling it for a profit? MR. KELLY: Object to the form. I think that is a statement that is true -1 106 1 2 Q. 3 4 5 A. 6 7 Q. e A. 9 10 n 12 13 14 15 16 17 18 19 20 21 Q. 22 23 of it, no. Just never had chosen to determine whether or not PCBs were leaving that plant before 1966? Well - MR. KELLY: Object to the form. Or in that time frame. In late 1966 a report from Sweden indicated that PCBs or something that research has determined were thought to be PCBs were being found in the Swedish environment. That began an extensive program of research in government 1aboratories, university laboratories, Monsanto laboratories as to the potential sources for those PCBs. And that led us to investigations of our plant sites to see if PCBs were leaving these sites. So that is the chronology as I know it to be. You know, that's a little late, isn't it. Dr. Kaley? MR. KELLY: Object to the form. REGIONAL REPORTING SERVICE, INC. 108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Q. 15 16 17 18 19 20 A. 21 Q. 22 A. 23 Q. today and was true prior. But I think what that statement means means a lot of different things in 2001 versus 1966. We have a lot more analytical capabilities. We understand a lot more about toxicology. We understand a lot more about what kind of tests need to be undertaken to characterize those products. I believe the people making the products in those time frames were doing what they believed to be appropriate to market a product that was safe for its intended uses. Well, now, Dr. Kaley, you know good and well that you all knew long before 1966 that you had the responsibility as a chemical manufacturer to make sure of a number of things, number one, that your product was safe? Is that a question? Yes. I'm sorry? Didn't you have a responsibility to do WATER PCB-SD0000005973 109 1 2 3 4 A. 5 6 7 a Q. 9 10 11 A. 12 Q. 13 14 15 16 17 A. 18 19 20 21 22 q. 23 that, to make sure that your product that you put into the general public was safe and wouldn't harm people? There is a general responsibility that products are safe for their intended use subject to the capabilities to determine those various aspects of safety. And y'all had that responsibility when you bought the Swan Chemical plant back in the '30s, didn't you? To some extent or another, yes. And you knew at that time also, didn't you. Dr. Kaley, that you had specific responsibilities about disposing of waste? You knew that, did you not? MR. KELLY: Object to the form. I think that is a characterization that is probably not correct. I think the concept of appropriate waste disposal has changed almost completely since the 1930s up to today. - Well, Dr. Kaley, let's just take the first one. REGIONAL REPORTING SERVICE, INC. Ill 1. things would cause somebody some 2 i problems? 3 A. I assume you are referring to the work 4 at the Harvard School of Public Health 5 by Dr. Drinker and others. I don't -- I 6 think -- I don't know whether we paid 7 them or not. I know we were involved 8 and aware of work that was going on back 9 then. Yes. 10 MR. STEWART: Mark that, please. 11 (Plaintiffs' Exhibit Number 12 Eleven was marked for 13 identification.) 14 Q. Let me show you Plaintiffs' Exhibit 15 Eleven, Dr. Kaley. 16 A. Okay. 17 Q. it says at the top of that on the first 18 page "Report to the Monsanto * Chemical 19 Company,* and it is a report by Cecil K. 20 Drinker, M.D. 21 A. Correct. 22 0. Dean and professor of physiology, 23 Harvard School of Public Health, Boston, 110 1 2 3 4 Q. 5 6 7 8 9 10 11 12 13 14 A. 15 16 17 IB 19 20 2T 22 Q. 23 MR. STEWART: Can I finish this first one, please, sir? MR. KELLY: Sure. Let's just take the first one, Dr. Kaley, the safety of your product. Are you telling me as we sit here today in this room in 2001 that y'all didn't know long before, long before 1966, when y'all got to hustling around looking tb see whether or not PCBs were leaving your plant site, that they were harmful to people? MR. KELLY: object to the form. I believe that we knew prior to that that under inappropriate use conditions that there was the potential for harm for some people. But I don't know that we had any specific information that PCBs were harming people in industrial situations, where they were exposed to high levels. No. Well, didn't y'all pay somebody to find out back in 1938 whether or not these REGIONAL REPORTING SERVICE, INC. 112 1 2 3 A. 4 Q. 5 6 7 A. 8 9 Q. 10 11 A. 12 Q. 13 14 15 16 A. 17 18 19 20 21 22 23 Massachusetts. Is that the same fellow you are talking about? Yes, sir. This was a report that was presented to y'all on September 15th of 1938, correct? That's the date on the document, yes, sir. Some twenty-eight years before 1966; isn't that correct? Yes. And doesn'tthat say in thisreport that there are some adverse health effects that are caused by PCBs based on animal studies that he did? I'd have to go to the PCB section in here. Okay. I just read the part that is addressing the chlorinated diphenyl compound 1268, and Dr. Drinker did report some very slight changes in liver. But most of the report -- It stresses the low toxicity of that particular chlorinated biphenyl. WATER PCB-SD0000005974 113 1 Q. 2 3 A. 4 5 s 7 8 9 10 11 12 13 14 15 16 17 18 Q. 19 20 21 22 23 Slight changes? Are we talking about liver damage, Dr. Kaley? I don't know whether he uses that term or not. He is talking about changes in the cell. I don't know that they were -- I mean, he talks about the overall health of the animal. The rats were very healthy throughout the period. The recovery animals showed no clinical changes of any sort. So, I mean -- I think there are cellular changes, but I don't know that, they would be considered to be adverse hea*lth changes in these animals. Under these extreme conditions the animals again remained in perfect health. That is just what the report says. Isn't it a fact, Dr. Kaley, that y'all paid for that report, and it told you about this product that you then continued to sell to the general public for uses of all kinds, knowing that it caused the damage to these animals after REGIONAL REPORTING SERVICE, INC. 115 1 2 A. 3 4 5 6 7 8 9 10 11 Q. 12 13 14 A. 15 Q. 16 A. 17 18 19 20 21 22 23 Dr. Drinker for this? I'm not aware. This was probably -- I don't know what other tests were done at that particular time. Certainly this was the era of the first time these kinds of issues were arising around PCBs and other chemicals that were being used in industry. You know, a lot of the tests he did we didn't pay for, and they found basically this same thing. So -But you didn't -- Are you telling me that you all did not perform any additional research at that time -In 1938 ---do any animal studies of your own? In 1938, I don't know. I mean, certainly throughout the years we did do others, but I'm not aware of anything chat we did in 1938. I'm not sure we had the capability in the company in 1938. That is why we would work with people like Dr. Drinker and other people at schools of public health and 114 1 2 3 4 5 6 7 A. 8 9 10 11 12 Q. 13 14 A. 15 16 17 18 19 20 21 Q. 22 23 this study that was performed by Dr. Drinker? Didn't you continue to do that? MR. KELLY: Object to the form, no foundation on sales to the general public. I think even today this report would be very encouraging. I think you understand. You have taken enough depositions to understand that anything -I understand your point of view, Dr. Kaley. --at high enough doses can cause damage of one kind or another. When we got this report that said this material was very slightly toxic, et cetera, et cetera, yes, I think we continued to sell this material for its intended use in industrial situations. what, Dr. Kaley, did y'all do by way of tests as a chemical company at that particular time other than pay REGIONAL REPORTING SERVICE, INC. 116 1 universities, because the company in 2 that time frame didn't have those kinds 3 of capabilities. No company did. 4 Q. Well, let me see if I understand, 5 Dr. Drinker -- I mean. Dr. Kaley. You 6 say Dr. Drinker had this capability, and 7 you all paid for it, but you didn't have 8 the capability to make more extensive 9 tests to determine whether or not this 10 product was safe to put on the market ' 11 and wouldn't cause people harm? 12 A. Am I saying the company internally did 13 not have toxicology testing labs to do 14 this? 15 Q. Resources to pay for it or -- 16 A. I said that we did not have internal 17 capabilities to do these kinds of tests. 18 and that is why we worked with people 19 like Dr. Drinker and others at 20 universities and testing labs to do the 21 kinds of testing that was appropriate 22 for those materials in that time frame. 23 Q. But you did have the resources to do .. WATER PCB-SD0000005975 117 118 1 2 3 A. 4 5 6 7 8 Q. 9 10 11 12 A. 13 Q. 14 A. 15 16 17 18 19 20 21 22 23 additional work to tie into what Dr. Drinker found, didn't you? Presumably if they would have felt -the people addressing these issues at the time would have felt that further tests were necessary, they would have done thoBe. Well, didn't you have the responsibility to do that even in 1938, 1940, 1945, to continue to take a look at this problem that - We did continue over the years to ---Dr. Drinker had raised? Number one, your characterization of this as a problem is your characterization. I think this is a very encouraging report, that this is a very slightly toxic material at very high levels of dosage in animals. The point of these studies and the others Dr. Drinker did was to come up with safe ways to use these materials in industrial * . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Q. 18 19 A. 20 Q. 21 A. 22 Q. 23 situations. And he did that. He recorrvnended, as did others, that materials like PCBs and other materials could be used safely in industrial situations if ventilation was provided, if people weren't exposed to the materials at elevated temperatures. So I think more work did continue. And as we learned more about the products and had other capabilities into the late '40s and early 1950s and '60s and so on, we did either internally or externally provide for further testing of these materials to be sure that they were safe for their intended use. Now exactly where did you test them, on animals? Excuse me? Yes, sir. To the extent -Did you test on animals? Yes. And you made a determination on the basis of the animal tests that there REGIONAL REPORTING SERVICE, INC. 119 REGIONAL REPORTING SERVICE, INC. 120 1 2 3 4 5 A. 6 7 B 9 10 11 Q. 12 A. 13 14 15 16 17 18 Q. 19 20 21 22 A. 23 were some harmful effects as a result of those animals being exposed to PCBs and potential harmful effects for people, didn't you? The point is that at high doses some PCBs cause certain end points during various tests. And the purpose of that testing is to determine where there is that potential for health effects in humans. Yes, that's correct. That's when -But we also had the experience of our workers and workers of our customers who were exposed to these materials at high levels occupationally. And they were not experiencing health effects, so that provided additional information. You mentioned something a minute ago. Dr. Kaley. You mentioned the fact that you vented the facility. Now, where would you vent -I did not mention the fact that we vented any facility. I mentioned the 1 2 3 4 5 6 7 e 9 10 11 12 Q. 13 A. 14 Q. 15 16 A. 17 18 Q. 19 20 21 22 A. 23 Q. fact that these materials in the applications which Dr. Drinker was doing, if they were being used at elevated temperatures, that those areas needed to be ventilated appropriately. I said nothing about out plant operations. I was talking about the applications of these materials, primarily in the cable pulling industry, which is what really started all these studies to begin with. And when did that happen, Dr. Kaley? When did what happen? Those studies that you are talking about Dr. -1937, 1938, and 1939, the very studies we have been talking about. So there was some concern at that time that there might be some harmful health effects to people back as far back as 1938? Yes. And didn't some people in your plant WATER PCB-SD0000005976 121 1 2 3 4 5 6 7 A. 8 9 10 11 12 13 14 15 16 17 IB 19 20 21 Q. 22 A. 23 Q. indicate to customers -- or in your company, rather, indicate to customers -- Emmet Kelly, Elmer Wheeler, those people who were involved in the medical department, that there could be some harm from the use of PCBs? I believe they were reporting what their understanding of this literature and other literature was, that based on animal testing there was potential for health effects for humans at very high levels of exposure. But I also believe that they were communicating that we weren't seeing health effects in our workers, nor were our customers seeing health effects in their workers. So, yes, I know there are statements in various documents that talk about the potential for health effects, yes. Liver damage? l believe that is one that is mentioned. Chloracne? REGIONAL REPORTING SERVICE, INC. 123 1 2 Q. 3 4 5 6 7 A. 8 9 10 11 Q. 12 13 A. 14 15 16 Q. 17 18 19 20 A. 21 22 ` 23 the residents about the Drinker study. Dr. Kaley, do you know that environmentally weathered type and environmental exposures rather than occupational exposures can be more toxic for certain substances, including PCBs? I believe -- I mean, I'm aware that there are researchers who make that claim, that environmental PCBs are more toxic for fish than other PCBs. Yes. You don't have any disagreement with that, do you? I'm not going to say I disagree with it. I think Borne of the results that is based on are subject to interpretation. And that is what these folks who were working at the plant and who lived around your plant were exposed to. weren't they? Hell, they were exposed to all the PCBs they were making, including the ones that would be included in those weathered PCBs. I mean, there is 122 1 A. 2 3 4 Q. 5 6 7 8 9 10 11 12 A. 13 14 15 16 17 18 19 Q. 20 - 21 22 23 A. Yes, sir. Certainly there it a potential for that in high exposure levels. Back in that time y'all knew that and continued to sell this product for industrial purposes, but you also continued to sewer it out of your plant site and to pour it out into the countryside around that plant, didn't you? MR. KELLY: Object to the form. To the extent there were low levels of discharges or levels of discharges of any magnitude from our manufacturing facility, they're low -- you know, relatively low levels, compared to industrial exposure levels, were being discharged for some time, yes. From '38 on when you got this Drinker report, did y'all ever tell those folks over there in that neighborhood about that Drinker study? I'm not aware of any communications with REGIONAL REPORTING SERVICE, INC. 124 1 2 3 4 5 6 7 8 9 Q. 10 11 12 A. 13 14 15 16 17 18 19 20 21 22 Q. 23 nothing particularly unique about weathered PCBs other than the congener or composition of the mixture has changed. All those congeners were present in the other -- in the PCBs as they were manufactured. They had to be. That is where they came from to begin with. Now, what kind of burning or heating process did you have of those PCBs at this plant site? I believe the video man wants to speak with you. MR. KELLY: Is this a good time for a break, Donald? we have been going for about two hours. MR. STEWART: I'd like to finish with this part. Just give me about ten minutes. MR. KELLY: Okay. Let me show you something before we leave this subject of the toxicity of WATER PCB-SD0000005977 125 these substances. . MR. STEWART: Would you mark that? (Plaintiffs' Exhibit Humber Twelve was marked for identification.) Q. Let me show you Plaintiffs' Exhibit Twelve. Take a look at that. A. I've read it. Q. Who is Dr. Kelly? A. He was medical director of Monsanto for some period of time. Q. Could you read for me the last paragraph on page one of this letter? A. Yes. This document says, "MCC's position can be summarized in this fashion. We know Aroclors are toxic, but the actual limit has not been precisely defined. It does not make too much difference, it seems to me, because our main worry is what will happen if an individual develops any type of liver disease and gives a history of Aroclor exposure. I am sure the juries would REGIONAL REPORTING SERVICE, INC. 127 determine the air concentration at which exposures to PCBs would not be harmful. That is what these maximum allowable concentrations are, and that was the outcome of that study. In fact, the air levels that were determined to be safe for occupational use of PCBs based on those studies are the same air concentrations that the Occupational Safety and Health Administration uses today for occupational exposure to PCBs. Q. Well, that is a little different if you are in the occupational setting because of what we talked about earlier, isn't it? A. I don't understand your question. 0. That the environmentally weathered PCBs are more toxic. A. well, number one, I don't agree with that characterization except as to - g. I understand you don't. A. -- except as to the species on which that has been tested, which is primarily 126 1 2 3 Q. 4 5 6 A. 7 g. a 9 A. 10 11 12 13 g. 14 15 A. 16 g. 17 A. 18 g. 19 20 21 22 A. 23 not pay a great deal of attention to MACS." Now, Dr. Kelly is talking about in that paragraph potential liver disease, isn't he? Yes. From PCB exposure of certain compounds, 1254 and 1242; is that correct? Well, those are the compounds that are mentioned in a previous paragraph. I don't know that the statement is specifically limited to those. He mentions some testing done by Kettering Laboratory? Correct. Was that done on the toxicity of PCBs? Yes, it was. So the position at that particular time in September of 1955 was that Aroclors were toxic and could harm people, correct? At high levels of exposure, yes. That was the point of those tests, was to REGIONAL REPORTING SERVICE, INC. 128 1 2 3 4 5 6 7 a 9 10 11 12 g. 13 14 15 16 17 18 A. 19 20 21 22 23 fish. And second, these levels -- I don't disagree that at high levels of exposure to PCBs can be toxic to laboratory animals, potentially toxic to humans at very high levels. That's why you have these kinds of studies done, and that is why you have the determinations of what are here called maximum allowable concentrations and today are called permissible exposure levels. Well, I assume that once y'all found out that these things were going to be harmful to people that you just quit selling this stuff on the market, didn't you? MR. KELLY: Object to the form. Mr. Stewart, if every company quit selling every product that has some toxicity at high levels of exposure to laboratory animals, you and I would be unable to eat or dress ourselves. All products are toxic at some high exposure WATER PCB-SD0000005978 129 1 2 Q. 3 A. 4 Q. 5 A. 6 Q. 7 S 9 10 A. 11 12 Q. 13 A. 14 15 16 17 Q. 18 A. 19 Q. 20 A. 21 22 Q. 23 level. The purpose of the testing -We are talking about here. Dr. Kaley -Can I finish my answer to the question? Yes, you cam finish your answer. Thank you. But I want you to answer my question. I just asked you --it takes a yes or no -- did you take it off the market at that time? There was no reason based on this finding to take it off the market. Did you stop -These findings indicated that the material was -- there were safe ways to use this in an occupational setting throughout that time period. Is that why they banned it -No, that is not why they banned it. -- later? They banned it because of its environmental persistence. And it had nothing whatsoever to do with its adverse health effects? REGIONAL REPORTING SERVICE, INC. 131 1 Q. 2 3 4 5 6 7 8 A. 9 10 11 12 13 Q. 14 15 16 17 A. 18 Q. 19 A. 20 21 22 23 Did you make changes? Do you know whether or not changes were made in the operation of the plant at Krummrich and the operation of the plant at Anniston about safety precautions that were taken in connection say for instance with the workers? I know some little bit. I don't know the exact time frames, and I don't know in great detail what changes were implemented, but I know there were some changes implemented. Well, would it be fair to say that it took place in the time frame we are talking about say in the '50s and '60s that y'all made some changes? I don't know specifically. Well, do you know what the changes were? Not specifically. I mean, I know, you know, things like long sleeve shirts and rubber soled shoes and things like that. But I don't have any detailed specific information about that. 130 1 A. 1 won't say it had nothing whatsoever to 2 do with it. The primary concern was the 3 environmental persistence. 4 MR. STEWART: Now, we'll take up 5 some additional questions 6 after lunch and stop there if 7 that is okay. 6 MR. KELLY: Okay. 9 (A lunch break waB taken.) 10 Q. (By Mr. Stewart) Dr. Kaley, I believe 11 when we left you were talking about what 12 all you all knew about the toxicity of 13 PCBs and when you discovered those 14 things. And it's fair to say that in 15 that time frame that you are talking 16 about you began to make some changes in 17 how you approached your personnel, 18 didn't you? 19 A. Which time frame are you speaking of? 20 Q. The time frame when you began to learn 21 - about the dangers of PCBs. 22 MR. KELLY: Object to the form. 23 A. If you have a specific year -- REGIONAL REPORTING SERVICE, INC. ' 132 1 Q. 2 3 4 A. 5 Q. 6 7 6 A. 9 10 11 12 13 14 15 Q. 16 A. 17 Q. 18 19 20 21 22 23 But there were some safety measures taken in connection with the workers' contact with PCBs; is that correct? There were some, yes. And there were some changes made, were there not, in what y'all told your customers about the PCBs? I don't know specifically. I mean, once the environmental presence became known, we did alert our customers to that information, if that is what you are speaking about. Otherwise I don't know specifically what you might be addressing. That is what I'm talking about. Okay. In this time frame, whether it is when we say it happened, which the documents seem to indicate somewhere as far back as 1938 you became aware of it, or if it is when you say, despite those documents, when you found out about it. sometime in the '60s. Did y'all make nr>^t rwrn r n cn/-\T3t t \tr> epotfrrr ni^ WATER PCB-SD0000005979 133 1 2 3 4 A. 5 6 7 8 9 10 Q. 11 A. 12 Q. 13 14 15 16 17 18 19 A. 20 Q. 21 A. 22 Q. 23 changes In labels, warning labels and things like that to tell your customers about it? After the presence of PCBs was confirmed in the environment we did alert our customers to the fact there were precautions that needed to be taken with regard to disposal of PCBs, primarily disposal of PCBs, yes. Disposal of PCBs? Primarily, yes. Well, we'll get to that in just a few minutes. But before we get to that, did you have a town hall meeting in Anniston at say the municipal auditorium or high school stadium or someplace and call all these folks that lived around and tell them`there might be a problem? Not that I'm aware of. You didn't do that? Not that I'm aware of. So in that time frame that we just got through talking about, whether it is the REGIONAL REPORTING SERVICE, INC. 135 1 A. 2 3 4 5 6 7 Q. 8 A. 9 Q. 10 11 12 A. 13 14 15 16 17 18 19 20 21 22 23 My understanding is that a hog was found on the landfill. A dead hog was found on the landfill. It was tested for the presence of PCBs. Levels were detected. I don't know specifically what those levels were. Pretty high, weren't they? I don't know. I really don't. And this wasn't Monsanto's hog, was it? This was somebody's hog in the neighborhood? It was a hog that was on the property on the landfill rooting around presumably. I don't know. I mean, it was found there. I don't really know how it got there or why it got there or anything. But in any case, after that then my understanding is that the plant manager assigned someone who worked with the ministers of the community to identify who those hogs might belong to, and . those hogs people -- thoee hogs were purchased from those people. 134 1 2 3 4 5 6 7 A. 8 9 10 Q. 11 A. 12 ' 13 Q. 14 A. 15 16 17 18 Q. 19 20 21 22 23 'SOs or the '60s or the late '60s or early '70s, y'all didn't do a thing to notify these people about the dangers of PCBs and the fact that they might be at risk for living around this plant site? MR. KELLY: Object to the form. I'm not aware of any activities. I don't believe they were particularly at risk. Well, you bought the hogs, didn't you? I understand that some hogs were purchased at some point, yea. And they were tested, weren't they? There was one hog tested prior to the purchase. I don't believe the hogs that were purchased were tested. It is my understanding, anyway. Some of them you dumped after you -- How did that sequence happen? You found a hog, tested it, found he was highly contaminated with PCBs, the hog was, and then you bought the others? MR. KELLY: Object to the form. REGIONAL REPORTING SERVICE, INC. 136 1 Q. 2 A. 3 Q. 4 5 6 7 8 9 10 A. 11 12 Q. 13 A. 14 Q. 15 16 17 18 19 A. 20 Q. 21 22 23 The minister? That's my understanding, yes. Did y'all tell him that the hog was contaminated with PCBs and he ought to be careful about eating hogs or chickens or anything like that? MR. KELLY: Object to the form. calls for speculation from this witness. I'm not aware of what was or wasn't told to anyone. And you have no idea of what was said? That's correct. As you sit here today do you know of anything that was said about the hog being contaminated to anybody out their in the neighborhood, any personal knowledge? I have no personal knowledge. Okay. Now, when you were talking a minute ago about y*all's capabilities. Monsanto's capabilities to find out whether or not you had PCBs in the creek WATER PCB-SD0000005980 137 1 2 3 4 A. 5 6 7 0. 3 9 A. 10 11 12 13 14 15 16 17 18 19 Q. 20 21 22 23 A. or around the landfill or something like that, were you talking about the analytical capabilities of Monsanto? I don't have a specific recollection, but, yes, I believe that is what I was addressing. And is il not a fact that Mr. Tucker had that capability? At what point in time? After the reports in Sweden that PCBs were present in the environment, were notified and after they -- that presence was confirmed, Monsanto undertook an effort under the leadership of Scott to acquire and develop those analytical techniques necessary to reproduce those findings so at some point in time we did have those techniques in place, yes. Now, when you say techniques are you talking about techniques to test fish to determine whether or not PCBs are in fish? Among other things, yes. REGIONAL REPORTING SERVICE, INC. 139 1 A. 2 3 4 5 6 7 6 Q. 9 10 11 12 13 A. 14 Q. 15 A. 16 Q. 17 A. 18 19 Q. 20 21 22 A. 23 Dr. Tucker was given the responsibility to implement those kinds of techniques in the Monsanto laboratories in St. Louis. He did not develop those techniques. He was the chemist at Monsanto that inplemented those techniques. Is it fair to say that tests had been performed to determine whether or not PCB -- I mean DOT was in the environment at some point in time before Dr. Tucker did this work? By Monsanto or by others? By anybody. Certainly. How long had that been going on? Primarily since about -- Well, the early 1960s, 1962 time frame. Could it have been taking place sometime in the '50s, '40s and '50s, where they determined - Well, not by the technique that was used to identify PCBs. There may have been PBfZTomit. pppnpTTNrt GFPVtrs. TUP 136 1 Q. 2 3 A. 4 0. 5 A. 6 Q. 7 B 9 A. 10 11 Q. 12 13 14 A. 15 Q. 16 17 18 19 20 21 A. 22 23 Q. Are you talking about testing water to find out if PCBs are in water? Among other things, yes. Soil? Yes. Soil samples taken not in sediment, but just soil samples taken from somebody's yard or around the plant site? The techniques could have been used for that. I don't know if we did that. And were you capable of taking those kinds of tests or doing or performing those kinds of tests in sediment? Yes. So it would be fair to say, would it not. Dr. Kaley, that those capabilities -- and I don't want to put words in your mouth; I'm trying to understand what you are saying -- were arrived at by Dr. Tucker, Scott Tucker? I'm not sure^ what you mean by arrived at. Dr. Tucker was -He developed those? REGIONAL REPORTING SERVICE, INC. ' 140 1 2 3 4 5 6 7 8 9 10 Q. 11 A. 12 13 Q. 14 15 A. 16 17 Q. 18 A. 19 20 Q. 21 A. 22 q. 23 other techniques to determine DDT in the environment. I don't have a specific knowledge of that, but I know that the detector that was being used, was then used and still used to measure PCBs and DDT at trace levels in environmental samples wasn't developed until 1961 or 1062. So there may have been other techniques. Who developed that? A guy named James Lovelock in Great Britain. That would have been somewhere in 1960 or '61? Somewhere in that general time frame. yes. And what are you talking about was used? I'm talking about something called an electron capture detector. Electron capture detector? Correct. That is basically what Dr. Tucker was using in his lab, wasn't it? REGIONAL REPORTING SERVICE, INC. WATER PCB-SD0000005981 141 1 A. 2 Q. 3 4 5 6 7 a A. 9 10 Q. n 12 13 A. 14 15 16 Q. 17 18 A. 19 20 21 Q. 22 23 Among others things, yes. And isn't it a fact that Dr. Tucker had gotten far enough along with his understanding of something somebody else had put together that he could transfer that knowledge to Anniston? Isn't that right? At some point in time I'm sure that's correct. Well, in fact isn't it somewhere around the time frame we're talking about in the late '60s? Well, I don't know, Mr. Stewart. You have a document there. I know there is a document that exists -I don't have a document. I'm just asking you a question. Dr. Kaley. It was in the late 1960s, early 1970 time frame. I don't know what time that transfer actually did occur. And he transferred that capability, did he not, Mr. Tucker, to the folks --or Dr. Tucker, to the folks in Anniston? REGIONAL REPORTING SERVICE, INC. 143 1 Choccolocco on into the Coosa? 2 A. I understand what the drainage basin is. 3 I don't know to what extent that 4 drainage basin, quote unquote, was S tested. I know we were looking at the 6 plant outfall and various other portions 7 of that waterway, but I don't know the 8 extent of that testing. 9 QLet me show you an exhibit that we will 10 mark as Exhibit Thirteen. 11 (Plaintiffs' Exhibit Number 12 Thirteen was marked for 13 identification.) 14 Q. If you will take a look at that 15 document, I want to ask you a question 16 about it. 17 A. 18 I've read the first page. The other ones are -- I'll read them if you want. 19 Q. Well, I just want to ask you a question 20 about the first page. This is titled 21 "Aroclor Losses at the Anniston Plant"? 22 , A. Yes. 23 Q. And it is to report the losses at the oc'rrnvTM r*or'rT\v^ cvowTr'c tmp 142 1 A. 2 Q. 3 4 A. 5 6 Q. 7 8 9 10 11 A. 12 13 14 15 Q. 16 17 A. 18 19 20 21 22 Q. 23 At some point. So they could do that in the lab themselves? At some point in time I believe that is correct, yes. And they in fact tested air, water, sediment and found PCBs, fairly extensive amounts of it, in Choccolocco Creek fish, in the sediment, and all around that plant site, didn't they? Certainly there were PCBs detected in a variety of matrices in that time frame. I don't know which ones or what levels, but generally yes. And in the Snow Creek-Choccolocco Creek Watershed, wasn't it? I don't know what that means or how that is defined. In those waterways, presumably in fish and/or sediments, there were detections made. I don't know specifically. % You don't know the drainage basin that leads from Snow Creek down to REGIONAL REPORTING SERVICE, INC. 144 1 2 3 4 A. 5 Q. 6 7 s 9 10 11 12 A. 13 Q. 14 15 16 17 18 Q. 19 A. 20 Q. 21 22 A. 23 plant, and then it is to report all the data on Aroclor residues in the Snow Creek-Choccolocco Creek Watershed? Yes, that is how it is described. It indicates on the third page of this document. Exhibit Thirteen, that there were significant amounts of Aroclor in the mud and water of Choccolocco and Snow Creeks a considerable distance. fifteen to twenty miles downstream from the Anniston plant. Is that correct? That's what the document says, yes. Well, I assume that once y'all found that out from this report that y'all rushed out and told the people down at ADEM that; is that correct? MR. KELLY: Object to the form. Or AWIC? I don't know. I think it was the Alabama Water Improvement Commission at that time. That was the agency that existed at that time. I don't know what if anything was PPrSTAW&T. PBPnBTTNn QFPVTfR TNP WATER PCB-SD0000005982 145 1 2 3 Q. 4 5 6 7 A. 8 9 10 11 Q. 12 13 14 15 16 17 A. 18 19 20 21 Q. 22 23 done in response to this particular finding or not. Didn't you have a responsibility under the law in Alabama that was in place at that time to report that? MR. KELLY: Object to the form. I'm not aware of any law. I don't know specifically. I'm not aware of any law in Alabama that would have required us to report that. or. Kaley, we are talking to a gentleman who is the PCB expert here for the plant, steward, and you have looked back over all these records, haven't you? You are not unfamiliar with this information, are you? I don't know that I have seen this document. I know generally what went on. I've not looked at every document that exists, no. Well, you know what stewardship means. don't you? Do you think your predecessor had the responsibility to REGIONAL REPORTING SERVICE, INC. 147 1' Q. 2 3 4 5 6 7 A. 8 9 10 Q. 11 12 13 14 15 A. 16 Q. 17 18 19 20 A. 21 22 23 Well, forget the regulations. Isn't it a fact that you all had the responsibility as a good neighbor to let people know the truth about what was happening in Choccolocco Creek? MR. KELLY: Object to the form. We alerted the environmental agency at the time about what our understanding was of the situation there, yes. I'm not talking about the environmental agency. I'm talking about these neighbors of yours as to what you were finding, Dr. Kaley, the people who lived -Yes. -- around your plant. That is what I'm calking about. Didn't you have a responsibility just as a good neighbor -No, because I don't believe we had enough of an understanding of the situation at the time to have anything particularly to communicate. 146 1 2 3 A. 4 5 6 Q. 7 8 A. 9 Q. 10 A. 11 Q. 12 A. 13 14 15 16 Q. 17 18 19 A. 20 21 22 23 let people know what was going on about PCBs at this particular time frame? I think there were responsibilities to let the agencies know. I said I didn't know what did or didn't happen. Okay. What about the EPA? They were in existence at this time, weren't they? I do not believe so. Sir? I do not believe so. This was July of '70. This is right around the time they were created. I thought it was '71 that they were created. If they were, they were a very nascent agency at that time. But once they were created, didn't you have some kind of responsibility to let them -I don't believe there were any regulations at the time, and certainly it is my understanding that AWIC did have an understanding of what was going on at the time. REGIONAL REPORTING SERVICE, INC. 148 1 Q. 2 3 4 5 6 7 8 9 10 11 A. 12 Q. 13 A. 14 Q. 15 16 17 18 19 20 21 22 A. 23 Q. well, let's see. Dr. Kaley. we have gone through the Drinker study. We have gone through the study you said y'all did after the Drinker study. We have talked about Kettering. We have talked about -- In fact, I think at some point in time some of your own workers sued you, didn't they, for some kind of problem they had prior to this time, prior to '70? I do not believe that is correct. You are not aware of that? I'm certainly not. So as you sit here today as the person who is responsible for reporting to these agencies, you have no knowledge about the fact that y'all were actually sued for health effects -- there were adverse health effects that were caused by PCB exposure by some of your workers at the Anniston plant? I'm not aware of it. But it is your position that all y'all WATER PCB-SD0000005983 149 1 2 3 4 5 A. 6 7 Q. 8 9 10 A. 11 Q. 12 13 14 A. 15 Q. 16 17 18 19 20 A. 21 22 Q. 23 had to do is just tell your workers, the people you were selling it to, and the agencies; is that correct? MR. KELLY: object to the form. I would think that's a fair characterization, yes. wouldn't it be fair to say that you shouldn't tell a story about it? MR. KELLY: Object to the form. I'm sorry? Wouldn't it be'fair to say that in this time frame you shouldn't be telling a story about it? I don't know what you mean by a sorry. Misrepresenting the facts about the PCB contamination that was coming off your Anniston plant and manufacturing facility, that's what I mean by a story. Now do you understand? I understand what you mean. I don't -I don't know what you are referring to. Do you think that it is important that you tell the truth about it? REGIONAL REPORTING SERVICE, INC. 151 1 2 3 4 Q. 5 6 A. 7 8 Q. 9 A. 10 Q. 11 A. 12 13 14 15 16 17 18 19 20 21 22 23 Q. degrade for very extended periods of time, but some of them degrade very readily. Now, which ones are those that don't degrade over an extended period of time? Primarily those with five or six or more chlorines on the biphenyl ring. The more highly chlorinated? Correct. 1260, 1268? Well, you really can't talk about the mixtures. There are certainly components of 1260 and 1266 that degrade. But really, when you are talking about degradation, you can't really talk about a product as such. You have to talk about the individual components of that mixture. But certainly 1260 has more highly chlorinated materials in it, and many of the components of that are going to be among those that degrade more slowly. Stay there for a while? 150 1 A. 2 Q. 3 4 5 A. 6 7 8 9 Q. 10 11 12 13 14 A. 15 16 Q. 17 18 A. 19 Q. 20 A. 21 22 23 Yes. Okay. And were y'all of the opinion at that time that y'all had a pretty good head of steam on solving this problem? I don't know what date the document is that you are reading, so I can't address whether that is an appropriate statement or not. I'm talking about in the '70s, that y'all had a handle on stopping this stuff from leaving your plant site. taking care of the cleanup, whatever you had to do. I believe we had a generally good understanding, yes. And was it your understanding that this stuff biodegraded at that time? Some PCBs biodegrade, yes. All of them? Not every one, no. Well, I don't know. At some rate they probably all do, but some of them certainly degrade faster than others, and some of them don't REGIONAL REPORTING SERVICE, INC. 152 1 A. 2 Q. 3 A. 4 5 6 Q. 7 B A. 9 Q. 10 11 12 13 14 15 A. 16 17 18 19 20 21 22 Q. 23 Stay where? In the environment, persist. Oh, they stay there. I'm sorry. I thought you were telling me to stay here for a while. No. They stay there for a while, in the environment. They do. I'm sorry. I just used the vernacular term. I certainly don't want to mislead you. But y'all had a lot of that at the Anniston plant, didn't you, a lot of waste buried up on that landfill that had 1260 and 1266 in it? Well, there are certainly wastes on thoae landfills that presumably have -I don't think there is necessarily 1260 or 1268 product in them. But there are wastes in the landfill that have more highly chlorinated materials. That's correct. Well, let me show you what was -- will be Exhibit Fourteen. WATER PCB-SD0000005984 153 1 2 3 4 A. 5 Q. 6 7 B A. 9 Q. 10 A. 11 Q. 12 A. 13 14 15 Q. 16 17 A. 18 19 20 21 22 Q. 23 (Plaintiffs' Exhibit Number Fourteen was marked for identification.) I've read it. Now, this is by a guy named J. C. Landwehr. Is he an employee of Monsanto? I believe at the time. Did he work at the Anniston plant? I believe so. Who is J. L. Crockett? I believe he was a commissioner or some administrator in'the Alabama Water Improvement Commission. A person, y'all worked with fairly closely? I don't know that. I know we had communications with that commission and with Mr. Crockett. I don't know that we worked with him very closely. I don't know what you mean by that. Well, you worked with them about as closely as you worked with then Attorney REGIONAL REPORTING SERVICE, INC. 155 1 2 3 A4 Q. 5 6 7 8 9 A. 10 11 12 13 14 Q. 15 16 17 18 19 20 21 22 23 was talking about this stuff in 1970, would they? That's correct. Isn't it a fact. Dr. Kaley, that y'all are finding significant levels of PCBs in the core sediment samples that you are doing of Snow Creek and Choccolocco Creek even today? Well, number one, I don't know what that question has to do with that statement. But do you want me to answer that in the abstract, or am I supposed to relate it back to this statement? Well, I hope you do. I thought this meant -- And I was asking you to tell me. I could pronounce them, but I couldn't tell you what they were. I thought you told me -- And I may have misunderstood you, so please clear it up for me if I did. I thought these words here meant that biologically these things would degrade or break down. that right? Is 154 1 2 3 4 A. 5 Q. 6 7 8 9 10 11 12 13 14 15 16 A. 17 18 Q. 19 20 21 22 A. 23 Q. General Don Siegleman, didn't you? MR. KELLY: Object to the form, no foundation. I have no idea. Mr. Landwehr indicates -- And I want you to help me with these, Dr. Kaley, because I'm not an analytical chemist, and I want you to help me and the jury understand these things. He says - - And he is talking about Aroclors or polychlorinated biphenyls or PCBs. And he is talking about the progress report on the abatement of polychlorinated biphenyl discharge to Snow Creek. Is that what he is talking about? That's what the underlined first sentence says. He says, "Many of these are degradable by biological and metabolic action if introduced into the environment." Break down? - That's fair, yes. So they wouldn't be there today if he REGIONAL REPORTING SERVICE, INC. 156 1 A. 2 Q. 3 4 5 6 A. 7 8 9 Q. 10 A. 11 12 13 14 15 16 17 18 19 20 21 22 23 Right. But that -Metabolic action would take place, and would that remove them from where they are? Or are you telling me they would stay despite those things, PCBs? Is it time for me to answer? She gets mad when I start to answer and you keep talking. I understand. Okay. If we are looking at the second paragraph, it talks about the discharge being in the range of one to five total mono and polychlorinated homologs. All right. A homolog is a description of PCBs based on the number of chlorines on the biphenyl ring. So monochloro biphenyls, biphenyls with one chlorine on the ring, are the monochloro homolog of PCBs. If they have two phenyl -Excuse me. If they have two chlorines on the ring, they are the diphenyl or -I'm all messed up. I'm sorry. If they have two chlorines on the ring, they are WATER PCB-SD0000005985 157 1 the dichloro homolog of PCBs. We can do 2 the same thing for three through ten. 3 Okay. The next statement says, 4 "Many of these are degradable," and that S refers back to the biphenyl homologs. 6 So many of those homologs are 7 degradable, and that is true. The 8 monochloro biphenyl homologs are almost 9 instantaneously degradable in the 10 environment. The same is true of most 11 of the dichloro biphenyl homologs. The 12 same is true of many of the trichloro 13 and tetrachloro homologs and some of the 14 others. 15 As you get higher levels of 16 chlorination on the ring, as those 17 homolog numbers go up, fewer of those 18 congeners are degradable. 19 So what that statement means is 20 many of those homologs are degradable in 21 the environment, and that is what it is 22 talking about. It doesn't say every PCB 23 in the environment. It says many of REGIONAL REPORTING SERVICE, INC. 159 1 sediment of that creek out there and be 2 gone; is that correct? 3 The purpose of the memo is to describe 4 to Mr. Crockett what we have learned 5 about the biodegradability of PCBs. The 6 lower chlorinated homologs are more 7 readily degraded. They are typically 8 not found in environmental samples. The 9 more highly chlorinated materials are 10 less chlorinated -- more chlorinated 11 tend to not be as degradable, are found 12 in environmental samples. 13 And the statement -- I don't know 14 -- in the middle of the second 15 paragraph, "We are in the process of 16 developing more sophisticated analytical 17 and computational techniques to report 18 to you analyses of our discharge of the 19 same homologs which are reported in 20 biological samples," is addressing that 21 very issue. We are telling them that 22 rather than tell them about all these 23 ones that degrade right away, we are OPrtrnMST. oirorio'rTxirs cs*DVTrrc tvrr 1 158 1 2 3 4 5 6 Q. 7 8 9 A. 10 11 12 13 14 Q. 15 16 17 18 A. 19 20 21 Q. 22 23 those homologs are degradable, and that is absolutely a true statement depending on the level of chlorine and to some extent the position of chlorines on those rings. What about one of them big homologs, one of them big chlorinated things that you were talking about a minute ago? That is certainly true. The more chlorines on the ring, the more they tend to stay in the environment and the less degradable they are. In general that is a true statement. Well, if I could just finish, it would not be true that those things have the same kind of properties that these that you just mentioned? Well, that's true. That's the whole point of this state -- that's the whole point of this memo. The point of this memo is to tell Mr. Crockett that those things that you just indicated would degrade in the REGIONAL REPORTING SERVICE, INC. 160 1 2 3 4 Q. 5 6 7 8 9 10 11 12 13 14 A. 15 16 17 18 19 20 Q. 21 22 A. 23 going to tell them about the ones that are found in biological samples, which tend to be the more heavily chlorinated. I assume that you told them, "Fellows, Mr. Crockett, folks at the Alabama Water Improvement Commission, we have a lot of still bottoms that are more highly chlorinated than what we are talking about here in this second paragraph on this October 21st, 1970, document that are buried in our landfill and very frankly are stored in drums east of the plant." Did you tell them that? I don't know specifically what was told them about the landfills or not. That has nothing to do with this document. This is about the analysis of environmental samples, not samples from the landfill. This is about an analysis of the less chlorinated PCBs? No, no. It is analysis about all of the chlorinated PCBs, but that we are going BPr.mNlT. Rt>nTTNTi QFWVTnS TMr WATER PCB-SD0000005986 161 1 2 3 4 5 Q. 6 7 B A. 9 10 11 12 13 Q. 14 15 A. 16 Q. 17 A. 18 19 20 21 22 23 to report to them our findings of the more chlorinated materials, which are the ones that are found in environmental samples. Okay. Now, did y'all also do air sampling or have the capacity to do air sampling at that time? I think there was some seminal attempts to look at air discharges from discharge points near the plant. I don't know that there was any ambient air sampling done. Tell me what you mean by what you just got through saying. I mean that -Put it in lay terms so the jury -Air sampling for PCBs and many things is a very difficult process. The procedures in that time frame for collecting were very experimental and probably not too sensitive. The only data that I have seen recording air sampling at the Anniston plant in that . REGIONAL REPORTING SERVICE, INC. 163 1 Q. 2 A. 3 Q. 4 5 A. 6 Q. 7 8 9 A.' 10 11 12 13 14 Q. 15 16 A. 17 18 Q. 19 20 21 22* A. 23 A Monsanto employee? Yes. Apparently working at Krunmrich at that time? Correct. And he sent this memo to a Mr. Pierle and to a W. Engman. Do you know those two people? I know Mr. Pierle. I don't know Mr. Engman. It is to Mr. Engman referencing a memo of Mr. Pierle. That is not really relevant. I do not know Mr. Engman, no. This talks about an air sampling program that was going on at Krummrich, correct? Yes. Hell, it was proposed to go on at Krummrich, yes. And that would be because of the fact that you all were aware that Aroclors under certain conditions made it into the air? Hell, I think it was to test that hypothesis, to determine whether 162 1 2 3 4 5 Q. 6 A. 7 B 9 10 Q. 11 12 A. 13 14 15 16 17 18 Q. 19 20 21 22 23 A. time frame is sampling at points near the process itself, not in ambient air samples away from where the PCBs were being manufactured. What did they find? I don't remember the numbers. In certain cases they did find PCBs and reported PCBs in the air near the process. They were doing a pretty good sampling program at Krummrich, weren't they? I'm not aware of what specifically was going on there. MR. STEWART: Mark that Fifteen. (Plaintiffs' Exhibit Number Fifteen was marked for identification.} If you will take a look at Plaintiffs' Exhibit Fifteen, that's a document that is signed by a gentleman named M. R. Foresman. Is that Mike Foresman we referred to previously? Yes. REGIONAL REPORTING SERVICE, INC. 164 1 2 3 4 5 Q. 6 A. 7 8 Q. 9 10 11 12 A. 13 14 15 16 17 Q. 18 A. 19 20 21 22 23 Aroclors under the conditions in the department where they were being manufactured were leading to air discharges, yes. And did you determine that they were? I don't know the results of this program. Has it determined or do you know whether or not a determination was made that your manufacturing process was admitting PCBs into the air? There are -- I have seen results from the Anniston plant, not the Krummrich plant, where they reported that there were air levels at points within the manufacturing process. Significant levels? I don't recall what they were. They were certainly measurable. But that was, you know -- I mean, those PCBs right at that plant are at elevated temperatures from the manufacturing process. And were they to be discharged --ir.n t t ppniTTnr t*tr WATER PCB-SD0000005987 165 1 to the air, they would not stay in the 2 air very long at very high levels. 3 Q. Were there any findings of dibenzofurans 4 5 A. in those air tests? I don't believe that -- At the time 6 those were done I don't believe the 7 capability existed to do that analysis. 8 Q. Would there have been? 9 A. I don't believe so. I don't believe 10 11 Q. they would have been detectable, no. Would they have been in there? 12 A. 13 Well, I don't know the answer to that. If they were in there, they were at 14 15 Q. very, very, very low levels. Okay. Now, you have indicated all of 16 . this stuff about your knowledge about 17 it, but you have left one thing out. Is 18 it not a fact that y'all got involved in 19 some tests at that time and were fully 20 aware of the persistence of PCBs in the 21 environment not just from the Swedish 22 study but also from a study that had 23 been done in Pensacola, Florida? REGIONAL REPORTING SERVICE, INC. 167 1 Q. 2 3 A. 4 Q. 5 6 A. 7 Q. 8 9 A. 10 11 12 13 14 15 Q. 16 17 A. 18 Q. 19 20 21 22 23 And the test plots at the University of Florida in Gainesboro? Right. It indicates that Aroclors were buried on June 28th, 1939, doesn't it? That is what this document says, yes. And they were dug up some thirty years later; is that correct? I believe they may have been. You cannot get that from this document. This document just says he believes he knowB where they are. I believe they were dug up, but I don't know that. You can't tell that from this document. Well, what did you find? What was found? Do you know? I don't recall specifically. Is it not a fact, Dr. Kaley, that what was found at that time -- and Mr. Tucker would certainly know, because he is copied on this thing, isn't he? What was found at that time is that there was still pretty good evidence of a pretty nC/'TA\iT r*f*r>efT /*p* rt< 166 1 A. 2 3 Q. 4 5 6 7 6 9 10 11 A. 12 13 14 15 Q. 16 17 18 19 Q. 20 21 A. 22 Q. 23 A. I'm not aware of what you are specifically referring to. Are you not aware of the fact that in -It might have been University of Florida Gainesboro. But are you not aware of the fact that some Aroclors were buried in the soil at some point in time say in 1939, and then they were dug up, and there is pretty good evidence they had lasted -I have some recollection of what you are talking about. I don't recall the specific details, but I know what you are referring to. Let me show you Exhibit Sixteen. (Plaintiffs' Exhibit Number Sixteen was marked for identification.) This is Mr. wheeler writing to a W. R. Richard? Yes. He is talking about the soil tests. Okay. REGIONAL REPORTING SERVICE, INC. 168 1 2 3 A. 4 5 6 7 8 9 10 11 12 Q. 13 A. 14 15 16 17 18 19 20 Q. 21 22 A. 23 Q. good percentage of the PCBs that had been buried? I would be surprised if they weren't there. They are going to stay, adhere to the soil and adhere to whatever they were on. I assume they were on wood. They are talking about termite proofing. I'm assuming wood. I think they probably would be there. I would not be surprised at that at all. They are not mobile under those conditions. Not mobile under those conditions? That is why they are Btill there. I mean, I would expect that some of the Aroclor 1242 would have degraded but some of the 48 and 54 was probably there at very significant concentrations because that is going to stay where it is. stay where it is, won't move or won't migrate? Yes. Is that your point? nr'/'T^>*T t ntm v*>/"m-hti \yr* w <~rr WATER PCB-SD0000005988 169 1 A. 2 Q. 3 4 5 A. 6 Q. 7 8 9 A. 10 11 12 13 14 15 16 17 18 Q. 19 20 21 22 A. 23 That's right. Your point earlier is that it was persistent. But your point now, Dr. Kaley, is it won't migrate? Both of those. Doesn't this show it stays there for a long period of time and doesn't biodegrade, doesn't break down? This particular test? Are we still talking about this document? I don't know the outcome of these tests. That would not surprise me, that if they found it it did stay there and didn't break down. Those two things are consistent and basically synonymous. That is what persistence is, that they stay there. Right. And if they cause adverse health effects and didn't biodegrade, that would make them doubly dangerous, wouldn't it? Not if they are buried in ground and people don't have access to them, no. REGIONAL REPORTING SERVICE, INC. 171 1 2 3 4 5 6 7 8 A. 9 10 Q. 11 12 13 14 15 16 17 A. 18 Q. 19 20 21 A. 22 23 effect at that time where you take the responsibility for what you make on your plant site and don't let it off your plant site if it is harmful possibly to your neighbor? It wasn't in effect at that time? , MR. KELLY: Object to the form. Well, it certainly hadn't been written at that time. Well, Mr. Cheever, who is another Monsanto employee that I deposed, said that it didn't have to be in writing, chat that is the hallmark of Monsanto, that y'all took it upon yourselves to make sure that you didn't injure your neighbors. I believe that's correct. And that has been true about this company, certainly was true at the time you bought Swan? * I believe that's true. To the best of their ability to have knowledge about potential harm, chat they would 170 1 Q. 2 3 4 A. 5 6 7 Q. 8 A. 9 Q. 10 11 A. 12 13 Q. 14 15 A. 16 Q. 17 10 19 20 21 22 A. 23 Q. Now, did y'all do any aqueous phase testing at that time of Snow Creek back in the '60s? By that I assume you mean water sample testing. I assume water samples were tested, yes. So you had capability to do it then? In the 1960s, yes. Did you tell the neighbors about your findings? I'm not aware of what was or wasn't communicated. You don't know whether it was communicated or not? That's correct. Didn't you have an obligation to do that. Dr. Kaley, both about the toxicity of this substance and also about the fact that it was leaving your plant site? MR. KELLY: Object to the form. I don't believe so, no. You mean the Monsanto pledge wasn't in REGIONAL REPORTING SERVICE, INC. 172 1 2 Q. 3 4 5 6 7 8 9 10 11 A. 12 13 14 15 16 17 Q. 18 19 20 21 Q. 22 23 communicate that. Yet as you sit here today, Dr. Kaley, you cannot tell me of a communication that y' all have made to your neighbors either about the toxicity of this product and the adverse health effects it might cause them nor about the fact that it was leaving your plant site, didn't do that until sometime after 1993? Isn't that true? I'm not aware of any efforts in that regard, but I don't necessarily think there was anything that should or could have been communicated that would have provided information that their health was at risk at that time frame. What you all were interested in at that particular time was how much money y'all were making off the PCBs -- MR. KELLY: Object to the form. -- and continuing to keep that product flowing out of that Anniston plant and out of that Krumnrich plant and ringing ' WATER PCB-SD0000005989 173 1 2 3 4 A. 5 6 7 8 9 10 11 12 13 14 15 16 17 Q. 18 19 20 21 22 23 up those dollar bills. Isn't that what you were interested in? MR. KELLY: Object to the form. Those -- Economic considerations were among the considerations Monsanto considered -- I guess that is redundant -- during that time frame. But I don't know that your characterization is correct that that is all that mattered. No, it wasn't all that mattered. MR. STEWART: Let's mark this as Plaintiffs' Exhibit Seventeen. (Plaintiffs' Exhibit Number Seventeen was marked for identification.) How, this is a long document. But it is called *PCB Presentation to Corporate Development Committee," Exhibit Seventeen is. And the second page is "PCB Agenda Review." And on that page -- I'm looking for those things that indicate any kind of notice that you all REGIONAL REPORTING SERVICE, INC. 175 1 2 A. 3 4 Q. 5 6 7 8 9 10 11 12 13 Q. 14 15 16 17 A. 18 19 20 21 Q. 22 23 A. Would you assume that with me, Dr. Kaley That would be a safe assumption, I believe. It is talking about plasticizers worldwide on the next page, and 1966 sales are mentioned on the next page. Then you begin to talk at the tail end of it about possible plans that y'all have for recommended action plan. MR. KELLY: Donald, what page are we on? MR. STEWART: Page twenty. It says clean up Monsanto plant effluents within twelve months. Tell me what effluents means, waste stream coming off the plant? Or streams coming off the plant, doesn't have to be a waste stream. It could be storm water, whatever is coming off the plant, yes. It certainly would include the landfills, wouldn't it? If there were streams coming off the 174 1 2 3 4 A. 5 6 Q. 7 A. 8 9 Q. 10 11 12 13 A. 14 Q. 15 16 17 A. IB Q. 19 20 21 22 23 were intending to make to your neighbors there in Anniston. Do you see anything on there that dealt with that? I don't see anything that leads to that specific -Sir? I don't see anything that leads to that specific area, no. On the next page -- Let's see, not that page, but page four, which says, "Monsanto Worldwide Aroclor Business," it talks about sales; is that correct? Yes. Then it talks on page six about the effect on Monsanto and our alternative courses of action, right? Yes. And to give you some kind of a date. look on page fifteen, it talks about fluids business threatened, and that is on page fifteen. It is dated 1970 budget. So I would assume this document was put together sometime in *69 or '70. REGIONAL REPORTING SERVICE, INC. ' 176 1 2 3 Q. 4 5 6 7 8 A. 9 10 11 Q. 12 13 A. 14 Q. 15 16 17 A. 18 Q. 19 A. 20 Q. 21 A. 22 23 landfills that contained materials of concern, yes. Weren't there streams -- Haven't we already established, Dr. Kaley, that there were streams coming off that west end landfill and also off the south end landfill? Well, there was storm water discharges from those landfills. I don't know that -Going into ditches and coming off those landfills? At some point in time. At this time those things were wide open, weren't they? MR. KELLY: Object to the form. what were wide open? They were open pits? What were? The landfill. Well, certainly the west end landfill wasn't. It had been closed and capped in 1960, before it was transferred to WATER PCB-SD0000005990 177 1 2 3 4 5 Q. 6 7 8 A. 9 Q. 10 A. 11 12 Q. 13 14 15 A. 16 Q. 17 A. 18 Q. 19 A. 20 21 Q. 22 A. 23 Q. Alabama Power. I don't know the total situation of the south landfill. If it was being active, there were certainly probably active cells open, yes. But there were also storage areas outside that landfill area, weren't there - - I don't know. --of still bottoms? There may have been. I don't know. I believe that's correct. Now, y'all talk about five here on page twenty. Educate customers on the need for cleanup at their plants? That is what it says, yes. Why didn't you do that to yourself? We did. Sir? We did. We made extensive efforts to reduce the levels in our effluents. From the manufacturing process? Yes. What about the landfill itself? REGIONAL REPORTING SERVICE, INC. 179 1 Manufacturers Association? Wasn't 2 Monsanto a part of that in the '40s and 3 ' 50S? 4 A. I don't know the date when they joined. 5 I wouldn't be surprised, but I don't 6 know specifically when they might have 7 joined that organization 8 Q. And didn't those organizations -- Didn't 9 those organizations talk about what the 10 responsibilities of the chemical 11 manufacturers were to discharging wastes 12 into streams? 13 A. I'm not aware of what they may or may 14 ' not have said in the '40s and '50s. 15 Q. If they did during that particular 16 period of time, Monsanto certainly would 17 have been aware of it, wouldn't they, 18 Dr. Kaley? 19 MR. KELLY: Object to the form. 20 calls for speculation. 21 A. I don't really know. Presumably. If 22 they were a member and they made those. 23 I would presume they were aware of 178 1 A. 2 3 4 5 6 Q. 7 8 9 10 11 12 A. 13 14 15 16 17 Q. 18 A. 19 20 21 22 23 Q. Well, the landfill was there to serve the purpose to dispose of those wastes. That was the point of having a landfill, was having a safe and secure way to dispose of those wastes. Now, Dr. Kaley, I'm not going to go into too much detail with you, but isn't it a fact that you all knew what your responsibilities were about waste disposal long before 1970? MR. KELLY: Object to the form. I'm not sure what that question means. I'm confident that the people operating the plants were operating in ways that they felt were the best available at the time in whatever time frame. Weren't y'all a -That's different then than it is now, and there is no question about that. But I believe that they were operating those landfills in ways they believed were appropriate. Weren't y'all a part of the Chemical REGIONAL REPORTING SERVICE, INC. 180 1 2 Q. 3 A. 4 5 6 7 Q. 8 9 10 11 12 13 14 A. 15 16 17 18 Q. 19 A. 20 21 22 23 Q. those. They would know? But the landfills were not discharging into streams. The landfills were secure to the best of their ability at the time, methods of disposing of waste. Well, let's just say for the sake of a hypothetical that, that particular organization that we just mentioned indicated you should not landfill toxic poisons such as PCBs in a place where it might affect ground water. MR. KELLY: Object to the form. I cannot imagine that statement could have been made by any organization in the 1940s and the 1950s. There is no way that statement could have been made. Okay, what about streams and waterways? I don't know what was said and what wasn't. If you have a document that you would like to show me and ask me whether it says that -I don't have a document. WATER PCB-SD0000005991 181 1 A. 2 3 Q. 4 5 6 7 8 9 10 11 12 A. 13 14 IS 16 Q. 17 18 19 20 21 A. 22 23 I'm not aware of any of those communications. But if they were, let's just say assume for the sake of a hypothetical that that organization itself and the federal government said you ought be careful about what you put into streams, then Monsanto would have known that, wouldn't they? MR. KELLY: Object to the form, calls for speculation. You know, I would presume, depending on how that communication was made, they would have access to that information. I don't know. And isn't it a fact that at this particular plant site it does affect streams? A waste stream coming off that south landfill and the west landfill does affect streams, water systems? I do not believe that there were waste streams coming off either the south landfill or the west landfill. REGIONAL REPORTING SERVICE, INC. 183 1 2 3 4 5 6 Q. 7 A. 8 9' 10 11 12 13 14 15 Q. 16 17 18 19 20 A. 21 22 23 those properties of PCBs and frankly, Dr. Kaley, know what might happen to those PCBs once they were buried in that landfill and exhibited those properties? MR. KELLY: Object to the form. Do you not understand the question? Well, I'm trying -- I'm not sure what the question is. I believe that after Monsanto in 1966 learned about the potential for the environmental presence of PCBs they undertook a program which made them among the most knowledgeable people in the world about PCBs and their behavior, yes. We have already talked about the fact that they probably, before they put this product on the market, should have been the most knowledgeable people in the world and probably were. Well, they were about -- I'm sure they were, but not necessarily about the environmental properties because that was not an issue that the chemical 182 1 Q. 2 3 4 5 A. 6 Q. 7 A. 8 Q. 9 A. 10 Q. 11 12 13 14 15 16 17 18 A. 19 20 21 22 Q. 23 You have indicated earlier. Dr. Kaley, that PCBs are a fairly sticky kind of substance, attach themself to particles -That's correct. --of dirt. Correct. Hang on pretty tight? Correct. If the wind were to come along and blow over that landfill, there is a good. distinct possibility, is there not, Dr. Kaley, that it could blow those PCBs that are just out there in the open, attached to dirt, all over that community? Isn't that right? MR. KELLY: Object to the form. If there were PCBs attached to small soil particles that were subject to being picked up by Che wind, some small amounts could have been picked up. Yes. And there is nobody in the world better equipped than Monsanto to know about REGIONAL REPORTING SERVICE, INC. 1B4 1 2 3 4 5 6 7 8 9 10 11 12 Q. 13 14 15 A. 16 Q. 17 18 A. 19 20 21 22 23 industry or anyone was dealing with at that time because the techniques were not available to make those kinds of measurements. Once those measurements were made and those techniques became available, Monsanto, like the rest of the chemical industry, changed the way it did things and changed the way it looked at things and changed the way it studied things and changed its behaviors, just as we did. The analytical capabilities didn't have anything to do with the toxicity of PCBs -It certainly had a -Those animal studies were done by Dr. Drinker in 1938. To deal with heavy exposures in a specific industry where PCBs were being used -- pure PCBs and other materials -mostly other materials in the cable pulling industry. But exposure situations where there were very high ___ ____ ____ ____ WATER PCB-SD0000005992 185 1 2 3 4 5 6 7 8 9 10 11 Q. 12 13 14 15 16 17 18 19 20 A. 21 22 23 exposures to elevated temperatures. The analytical techniques and toxicity do go hand in hand, because if you don't have either the capability or understand the need to measure, then you don't have the capability to understand how the toxicity tests should be done and under what levels those toxicity tests may or may not be important. So those two techniques definitely go hand in hand. And Dr. Drinker felt confident enough to tell you that it caused damage to the liver, and Elmer wheeler and Emmet Kelly apparently bought some of that because of their statements that they made in documents that we have seen numerous times in this case. They were concerned about that very same thing, weren't they? Dr. Drinker made statements that the material was very nontoxic and caused changes in the liver. I don't believe he used the term damage to the liver. REGIONAL REPORTING SERVICE, INC. 187 1 2 3 4 5 A. 6 7 a 9 10 n 12 13 14 15 16 17 Q. 18 19 A. 20 Q. 21 22 23 A. it, and that is to keep selling this product as much as you possibly can? Is that correct? MR. KELLY: Object to the form. In a brief review, it looks like an overall summary of what was the understanding of the problem at that date and time. I don't see any statement in there at all about continue to sell the product. I haven't read it carefully, so if you have a statement that you want to refer me to, I'll be happy to take a look at it. But it looks to me like it is a broad overview of the entire PCS situation as it was being understood at that time. Well, look at the first page and look up at the top. Okay. It says one, two, three. Permit continued sales and profits of Aroclors and terphenyls. Those are PCBs, aren't they? Well, terphenyls aren't. Aroclors, some rvsTnMar opoaottm/? cwrrrff rwr 186 1 Q. 2 3 4 5 A. 6 7 8 9 10 11 12 13 Q. 14 15 16 17 18 19 20 21 A. 22 Q. 23 Where would Mr. Wheeler and Ernnet Kelly get the kind of statement that they made that they were concerned about liver damage? well, because -- primarily from the understanding of the potential effects in animals and reports from industries where PCBs were being used with a lot of other materials that liver damage was a potential from those kinds of mixtures. So it was a potential. There is no question. Let me give you document number Eighteen and -- Now, Dr. Kaley this is a confidential document called minutes of the Aroclor ad hoc committee, first meeting. (Plaintiffs' Exhibit Number Eighteen was marked for identification.) That's what it says at the top. Right. And this talks about what you all were really concerned about, isn't REGIONAL REPORTING SERVICE, INC. 188 1 2 Q. 3 4 A. 5 Q. 6 7 A. 8 Q. 9 10 11 A. 12 13 14 Q. 15 16 17 18 19 20 21 22 Q. 23 of them were PCBs. Permit continued development of uses and sales? Right. Protect the image of organic division and of the corporation? Right. That is the purpose of all these actions that follow that, isn't it, as you read this document? Well, that is certainly what is stated as the objective. Yes, I think that is true. Now, let's take a look at Plaintiffs' Exhibit Number Nineteen and see what y'all were doing about this same time frame that you have indicated y`all were really worried about everything. (Plaintiffs' Exhibit Number Nineteen was marked for identification.) Nineteen, now these are notes from a meeting of a board of directors, and it FflTAWaT, PT?TiPTTW5 RFPVTrP TWP WATER PCB-SD0000005993 1B9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 A. 17 18 19 20 21 22 23 is dated May 22nd, 1969. And it talks about what was happening in Anniston, and there was an expenditure that was going to be made of a million one hundred thousand dollars for the expansion of the solid Aroclor facility at the Anniston, Alabama, plant. And that was approved on May 22nd, 1969. Now, you have indicated earlier that y'all were concerned about this product and concerned about the persistence in the environment. But what was really happening is y'all were expanding your capacity to make it in Anniston, weren't you? Well, in the first place you need to understand that solid Aroclor is polychlorinated terphenyls, not polychlorinated biphenyls. So that is the first statement. The second statement is that certainly in 1969 we were continuing to understand the issues around PCBs and REGIONAL REPORTING SERVICE, INC. 191 1 . - of what you actually were doing. Read 2 that, and then I will talk to you more 3 about it. 4 (Plaintiffs' Exhibit Number 5 Twenty was marked for 6 identification.) 7 MR. KELLY: Donald, I'll represent 8 for the record that I believe 9 we are missing a cover page 10 to this document or a cover 11 memo, but go ahead with your 12 questions. 13 MR. STEWART: Okay. Do you have a 14 full document? If you do, I 15 will go on to something else. 16 and we will -- It is DSW 17 014256. 18 MR. KELLY: I believe we can get 19 one. 20 MR. STEWART: If you can get one. 21 I will go on to something 22 else and will not seek to 23 introduce that at this time. 190 1 2 3 4 5 6 7 Q. 8 9 10 11 12 13 A. 14 Q. 15 16 A. 17 Q. 18 A. 19 Q. 20 A. 21 ` 22 Q. 23 discharges from our plant. And we certainly had a product that we believed performed a useful purpose, and we are continue --we are looking for ways to continue to safely manufacture and market that product. Well, tell me if you would. Dr. Kaley, how this expenditure of a million one hundred thousand dollars compares to what y'all spent on upgrading your solid waste disposal and liquid waste disposal capacity there at the plant. I have no idea. Isn't this far more than what you would spend on those things? , I have no idea. Didn't care, don't care now? Me? Yeah. As I sit here today, I have no way of knowing. Now, let's take a look at Plaintiffs' Twenty and try to get some kind of idea REGIONAL REPORTING SERVICE, INC. 192 1 2 3 4 5 6 7 8 9 10 ii 12 13 14 15 Q. 16 17 18 19 20 A. 21 22 23 MR. KELLY: I will get that at the brak. MR. STEWART: What? ' MR. KELLY: I'll try to get that at the break if you want. MR. STEWART: Okay. Let me ask him a few more questions, and maybe we'll take a break and just finish up perhaps with that one MR. KELLY: Okay. (Plaintiffs' Exhibit Number Twenty-one was marked for identification.) Let me show you Exhibit Twenty-one with the understanding we will substitute Twenty as Mr. Kelly has said. This is called a pollution letter. Do you know who an N. T. Johnson is? Not for sure. I knew a Norm Johnson. I don't know if that is the same person or not. I don't really know specifically, no. WATER PCB-SD0000005994 193 Q. Okay. Now, this is a February 16, 1970, letter from Mr. Johnson to a number of people, called the pollution letter. If you will read over it, I want to ask you some questions. A. Are your questions just on the first two pages, or should I read the entire Q and A? Q. You can read the Q and A. I want to ask you some questions about it. MR. STEWART: In fact, this may be a good point to take a break, while he reads that. And if you can get that document for me, I would appreciate it. (A break was taken.) Q. Now, that we have these additional pages, have you had an opportunity to take a look at both those pages and also the defense of Aroclor fluids? A. I looked at the two pages. I have skimmed the defense documents. I haven't looked at it in detail. REGIONAL REPORTING SERVICE, INC. 195 program well before 1969. But certainly part of what Scott Tucker was doing was developing analytical techniques for Aroclor and these particular -- and other matrices. Q. But what he was doing was sort of seizing the day. Is that what it was, sort of taking the offensive to deal with government agencies on, one, how you analyze it, number two, what might be safe? Or was that a combination of things, analytical and the bio tests, which is the next one, prove bio harmful? A. I'm sorry, Mr. Stewart. I'm not sure I understand the thrust of your questions. Scott Tucker was given an assignment to develop the analytical techniques within Monsanto Company to be sure that we had access to the most modem and most up to date techniques to do the analyses that we were embarking on in our program to understand the PCB issue. rwTAnmtTn nwwifT nw 194 1 Q. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 A. 19 20 21 Q. 22 A. 23 Okay. This first statement up here at the top of the page on Exhibit Twenty, which is thiB September 9th, 1969, document, talks about general policy. And it says make the government, states, and universities prove their case but avoid as much confrontation as possible. It says the adverse publicity, down there in the last sentence, and competition are the real weapons. And then it says analytical for Aroclor. And it has in air and water and animals and has got government agencies there. IS that why Monsanto got busy and stuck Scott -- Dr. Tucker into this thing? MR. KELLY: Object to the form. I'm not sure I understand the thrust of your question. I mean Scott Tucker was -Let me -My recollection, Scott Tucker was put in charge of developing the analytical REGIONAL REPORTING SERVICE, INC. 196 1 Q. 2 3 4 5 6 7 8 9 A. 10 11 12 13 14 Q. 15 16 A. 17 18 Q. 19 20 21 22 23 Hell, it is a little more than that. isn't it. Dr. Kaley? This is a pretty -- This is a pretty broad range program that Monsanto undertook in connection with a defense of Aroclors. This thing says let the government prove its case on a case-by-case basis, what kind of language is that? Number one, it is a draft document, and I really can't understand what Mr. Richard may have been attending by that. I don't know what he meant by that specifically. Monsanto visit government bio labs, isn't that what actually happened? I believe Monsanto scientists did visit various government labs, yes. Well, they just sort of secreted away one of the scientiets that was doing excellent work on finding out about adverse health effects of PCBs, didn't they? MR. KELLY: Object to the form. WATER PCB-SD0000005995 197 1 A. 2 3 Q. 4 A. 5 Q. 6 7 B 9 A. 10 Q. 11 12 13 14 IS 16 A. 17 Q. IB 19 A. 20 21 22 23 I have no idea what you are talking about. Do you know a Dr. Renate Kimbrough? Yes. Do you have any idea how much Monsanto has paid Dr. Kimbrough to testify in different cases from time to time about the effects of PCBs? NO. Did you know anything at all about the early research that she did before industry visited her lab, Monsanto in particular, that found adverse health effects in rats? MR. KELLY: Object to the form. I'm aware -Cancerous lesions in rats that were fed PCB. I'm aware of Dr. Kimbrough's research in PCBs and the fact that she published a paper describing her interpretation of concern from feeding Aroclor 1260 to rats, yes. REGIONAL REPORTING SERVICE, INC. 199 1 A. 2 Q. 3 4 5 A. 6 7 a 9 Q. 10 A. 11 Q. 12 13 14 15 A. 16 Q. 17 IB A. 19 20 21 22 23 Q. Late 1960s at some point. Okay. And did y'all have a gentleman who worked for Monsanto who was involved in working at that lab on tests? Well, those were two different times in the career of a specific person, if you are talking about what I assume you are talking about. Yeah, well, who was it? Dr. Paul Wright. Dr. Wright. Now, he worked for Monsanto -- Let me see if I understand how this worked. He worked for Monsanco; is chat right? I believe that's correct. Then he left Monsanto, and he went to work for who? At some point he went to work for Industrial Bio-Test. Then he didn't leave Monsanto. It is my understanding there was a reduction in force and his position was eliminated. His position was eliminated? 198 1 Q. 2 3 4 5 6 Q. 7 8 9 A. 10 11 Q. 12 13 14 A. 15 16 17 Q. 18 A. 19 Q. 20 21 A. 22 23 Q. And you all had a defense to that, didn't you, and bought a lab or bought the science in a lab that is called -what is it Bio Tech? MR. KELLY: Object to the form. Didn't y'all buy the science in a lab. Dr. Kaley? Isn't that what you did? MR. KELLY: Object to the form. No, sir. MR. KELLY: No foundation. Well, didn't y'all go to -- wasn't it Illinois where y'all went and did some studies somewhere around Chicago? Monsanto contracted with a laboratory to do toxicological studies of PCBs. That's correct. what was the name of that lab? Industrial Bio-Test. Industrial Bio-Test and that was located where? Somewhere around Chicago. I don't know specifically. when did y'all do that? REGIONAL REPORTING SERVICE, INC. 200 1 A. 2 Q. 3 A. 4 Q. 5 6 A. 7 8 9 10 Q. 11 12 A. 13 Q. 14 15 16 A. 17 18 19 20 Q. 21 22 23 A. That's my understanding. what did he have before he went there? I'm sorry. what did he have by way of a position before he went there? I'm certainly not totally up to speed. I believe he was a toxicologist in the agricultural division. I could be mistaken. Then he was there at Bi -- Can you name that for me again, please? Industrial Bio-Test Laboratories. He was there at Industrial Bio-Test, and then he went back, did he not, to Monsanto? Eventually there was a position that opened in the corporate medical department, and he was interviewed and eventually accepted a job there, yes. It was a little more than accepted a job. He was given a substantial bonus after he went back there, wasn't he? I don't know. WATER PCB-SD0000005996 201 1 Q. 2 3 4 5 6 7 8 9 10 11 12 A. 13 Q. 14 A. 15 Q. 16 17 A. 18 Q. 19 20 21 A. 22 23 Isn't it a fact. Dr. Kaley, that he came back, Paul Wright did, came back to Monsanto after being at this company that did your testing on the PCBs? And he actually in fact was paid a substantial bonus for delaying some kind of FDA ruling on a particular product that y'all were interested in? MR. KELLY: Object to the form, no foundation, calls for speculation. I don't know about that. When was he indicted? I don't know specifically. He was still an enployee of Monsanto's, wasn't he, when he was indicted? I believe that's correct. Wasn't he indicted along with this guy that ran that facility up there for falsifying data? That's not what he was indicted for, but that was the basis. It had nothing to do with PCBs. It had to do with other REGIONAL REPORTING SERVICE, INC. 203 1 2 A. 3 4 5 6 7 8 9' 10 Q. 11 A. 12 13 14 15 16 Q. 17 18 19 A. 20 21 Q. 22' 23 happened? I think there were meetings where pathologists compared the findings of those various studies, yes. I don't know if they were attempting to disprove what Dr. Kimbrough had found, but there were certainly differences between the Industrial Bio-Test findings and Dr. Kimbrough's findings. What was the difference? I think the primary difference -- I -You are reaching the limit of my knowledge. My understanding was it was basically a difference in the characterization of the lesions. Well, we have taken the deposition of a Dr. Levinskas, who is the one that went and talked to Renate Kimbrough. He is certainly more knowledgeable than I. And Dr. Levinskas indicated to this fellow that ran the lab, Industrial Bio-Test or whatever it is called, that 202 1 2 Q. 3 4 5 A. 6 Q. 7 8 9 10 A. 11 Q. 12 13 14 15 16 A. 17 18 Q. 19 20 21 22 23 products. I'm not asking you about PCBs. I'm asking you if he in fact was indicted. Who paid his fees? Did Monsanto? It is ny understanding. Paid his fees to defend him, gave him a bonus when he came back. Is it not a fact, Dr. Kaley --By the way, was he convicted? I believe so, yes. Is it not a fact that this same lab where Dr. Wright, Paul Wright, worked and his actions got him indicted, they are the ones that did these tests on PCBS? They did some tests on PCBs, that's correct. Didn't they take the rats that they fed the PCBs and did the tests on at that facility, take those little livers out of those little rats and go in and attempt to disprove what Dr. Renate Kimbrough had said? Isn't that what REGIONAL REPORTING SERVICE, INC. 204 1 2 3 4 A. 5 Q. 6 A. 7 Q. 8 A. 9 Q. 10 11 12 13 14 15 A. 16 17 018 19 A. 20 Q. 21 A. 22 Q. 23 you ought to change this little word in here from slightly tumorigenic to nontumorigenic. Noncarcinogenic I believe is the term. Noncarcinogenic? That's correct. Are you familiar with -I'm familiar with it. -- the folklore of the time that y'all were I guess, according to this document, proving bio harmful, let government prove its case and then visit the lab? MR. KELLY: Object to the form. Well, that has nothing to do with what we have been talking about. Isn't that what happened? MR. KELLY: Object to the form. This says visit government laboratories. Well, didn't she work at a government -This is not a government laboratory. -- laboratory? Didn't Dr. Renate Kimbrough work -- WATER PCB-SD0000005997 205 1 A. 2 3 4 5 Q. 6 7 A. 8 9 10 Q. 11 12 13 14 15 A. 16 Q. 17 18 19 20 21 _ 22 23 I'm sorry. You have me all -- I don't know whether we are talking about Kimbrough or Bio-Test. Please start over. Didn't Dr. Kimbrough at the time work at a government lab? Yes. She worked for Centers for Disease Control at some point in the early 1970s. Yes, that is correct. So she was working for the general public, not making a whole lot of money when she found that there was cancer in these little rats. MR. KELLY: Object to the form. I have no idea what her salary was. Let me ask you something, Dr. Kaley. If I start out with a certain cohort of rats, okay, and I'm going to make some kind of determination as to whether or not after a certain feeding program -That's how you do. You feed them, and then you find out what their health is. and then biopsy that stuff -- I mean. REGIONAL REPORTING SERVICE, INC. 207 1 2 3 A. 4 5 6 Q. 7 8 9 A. 10 11 12 13 14 15 16 Q. 17 18 19 20 A. 21 Q. 22 A. 23 Q. wouldn't you? MR. KELLY: Object to the form. You are speculating that that is what happened. I have no knowledge that that's what happened. Well, you are speculating that it didn't happen, aren't you, Dr. Kaley? MR. KELLY: Object to the form. My understanding is that was -- There was not any targeted in or out of the rats. My understanding is that those studies were looked at and found that the results were probably not -wouldn't have been any different anyway. But I don't really know. Wouldn't have been any different anyway if it had all the rats that they started out with, is that what you are telling US? Yes. Well, who told you that? I don't know. I don't even recall. You don't recall? Was it a Monsanto BffrtrnMiT. DPDnoTTMn cppvTm? Twr 206 1 2 3 4 A. 5 6 Q. 7 8 .9 10 11 12 13 14 Q. 15 A. 16 17 IB 19 20 21 Q. 22 23 section that stuff and find out if they have some damage to the liver. That is what they did, isn't it? Roughly, I think that is how that study would be carried out. Well, if you start out with thirty rats or forty or a hundred rats and because of the fact you are not taking care of them and you just start throwing rats out, won't that skew your study? MR. KELLY: Object to the form, calls for speculation, no foundation. Won't that skew your study? There are standards which need to be adhered to with regard to followup of animals and care of animals during a feeding study. And if those are not adhered to, it would potentially affect the outcome of the study. Well, it could be, if you threw out all the rats that had cancer of the liver. you would certainly skew the study, REGIONAL REPORTING SERVICE, INC. 208 1 2 A. 3 Q. 4 5 6 7 A. 8 9 10 11 12 13 14 Q. 15 16 17 18 19 20 21 22 A. 23 Q. employee -I don't recall. -- who told you that they looked at that study knowing that certain rats had died and they just cast them aside? MR. KELLY: Object to the form. I don't know the details of the allegations with regard to either the studies that came into question with regard to Mr. Wright's difficulties or the PCB study specifically. I just don't know enough to answer those kinds of questions. I told you. But if in fact hypothetically we are correct about the facts as I've stated them, that certain rats were thrown out just because they died during the process, you would agree with me that that would skew the -- potentially skew these results? MR. KELLY: Object to the form. It might potentially skew the results. Now, is it appropriate or proper for PCrtTAMlT. B17 DAP T T M/7 QPPVTrp TNP WATER PCB-SD0000005998 209 1 somebody like Dr. Levinskas, who is 2 asking an independent lab to do a study. 3 to have input and to actually tell the 4 people who are making the determination 5 as to -- like is it Calandra who ran 6 this thing -- telling Dr. Calandra what 7 to do in this study? Is that a true 8 independent study, Dr. Kaley? 9 MR. KELLY: Object to the form. 10 A. My understanding is Dr. Levinskas was 11 asking them to 'use consistent language 12 in the reports of the various Aroclor 13 mixtures and that those terms are 14 basically synonymous. 15 Q. What terms? 16 A. Nontumorigenic --or slightly 17 tumorigenic and not carcinogenic. 18 Tumorigenic is not carcinogenic. You 19 can have benign tumors which are not 20 cancers. Those were the kinds of tumors 21 - as I understand that Industrial Bio-Test 22 was finding in those animals so that In 23 fact there is no conflict between the REGIONAL REPORTING SERVICE, INC. 211 1. 2 A. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Q. 20 21 22 23 MR. KELLY: Object to the form. It is an important finding with regard to any chemical, whether it causes damage in any organ system. That certainly leads one to further research and epidemiology studies on humans exposed to those things to see if those animal findings could be confirmed. I'm not denying those tests were done for a reason, and the results are important, whether Monsanto did them or Dr. Kimbrough did them or any laboratory did them. There have been a number of tests of PCBs in laboratory rats that have found that they cause liver damage and/or in some cases liver cancer in those rats. I'm not disputing that. It is clearly true. Dr. Kaley, I'm struck by this whenever I have a Monsanto person on the witness stand. All of a sudden these animal studies that other people do are just not very conclusive. But isn't it a 210 1 2 3 Q. 4 5 6 7 8 9 10 A. 11 12 Q. 13 14 IS A. 16 17 18 Q. 19 20 21' A. 22 Q. 23 term slightly tumorigenic and noncarcinogenic. But you will admit that if they were finding tumors in those livers as a result of this feeding of these PCBs under those conditions, that would certainly indicate damage to the liver, wouldn't it? MR. KELLY: Object to the form. I would think that would be interpreted as an effect on the liver, yes. Isn't that what Dr. Kelly and -- Emmet Kelly and Elmer Wheeler said, damage to the liver from this stuff? Nobody is arguing that PCBs cause liver damage at high doses to animals. I concur in that statement. Well, you seem to equate that with just sort of a nonmeaning kind of thing. MR. KELLY: Object to the form. Not nonmeaning at all. It is a very significant finding, isn't it? REGIONAL REPORTING SERVICE, INC. 212 1 2 3 4 5 A. 6 Q. 7 8 A. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 fact that that is exactly what you all did to determine certain things about PCBs? MR. KELLY: Object to the form. Oh, absolutely -Conducted animal studies, isn't that the fact? The studies are conducted to give -because if you want to test the effect of a chemical you test it on laboratory animals. That gives you some indication of the potential effects in humans. But if you can then go on and have epidemiology studies where people exposed to those materials have had their health examined, their health outcomes examined, and those end points are not found in those human populations, then that gives you more important information about the potential human health effects from those particular compounds, whether it is PCBs or any compound. O V O'T'TMTS OWfTn? Tr WATER PCB-SD0000005999 213 1 Q. 2 3 4 5 6 A. 7 8 9 10 11 Q. 12 13 14 A. 15 16 17 Q. IS 19 A. 20 21 22 23 But, Dr. Kaley, if you find chat a consistent physical ailment that happens as a result of those epidemiological stuff -- let's just say cancer -- then that tells you something, doesn't it? If you find consistent convincing evidence that some chemical causes -- is associated with cancer in a number of epidemiology studies and there is consistent information there, sure. And it begins to confirm what you found in these animals; is that right? MR. KELLY: *Object to the form. Now you are getting personal and finding what I found in what animals. Assuming you mean Monsanto -I'm not getting personal. I'm talking about what science found. I was talking in generalities. I was not talking about PCBs. If you are going back to PCBs, that's another discussion because I firmly believe that there is no convincing consistent REGIONAL REPORTING SERVICE, INC. 215 1 A. 2 Q. 3 4 A. 5 6 7 8 9 10 11 Q. 12 A. 13 Q. 14 A. 15 Q. 16 17 18 19 20 21 22 23 Not that I'm aware of. Has she looked at some studies at the request of Monsanto Chemical Company? The only study -- The only thing I know she has looked at, at one point I asked her to look at a draft risk assessment that the Alabama Department of Public Health did. That's the only thing that I'm aware of that she has looked at at our request. Oh, you did? Yes, sir. When was that? I don't know. 1995, 1996. Now, let's see. This independent scientist that did this work at the Centers for Disease Control and found the cancer in these little rats' liverB, cancerous lesions, she is now coming down here to Alabama and helping you with the Alabama Department of Public Health? MR. KELLY: Object to the form. r /\vr* t DtnftOfTHi' ePoiTTrr rwr 214 1 2 3 Q. 4 5 6 7 8 9 10 11 12 A. 13 14 15 16 17 18 19 20 21 Q. 22 23 evidence that PCBs cause cancer in human beings. Well, you've got somebody like Dr. Kimbrough, that if you need her at some point in time say to come down and look at a plant site or whamp up a little study, you can get her pretty easily, can't you? MR. KELLY: Object to the form, calls for speculation, no foundation. You will have to ask Dr. Kimbrough about that. I think that is a gross mischaracterization of our relationship with Dr. Kimbrough or anybody else's relationship with Dr. Kimbrough. She is a respected scientist with the greatest of integrity, and I think your insinuations are out of place and improper. Hasn't Dr. Kimbrough recently done two studies at the request of Monsanto Chemical Company? REGIONAL REPORTING SERVICE, INC. 216 1 A. 2 3 4 5 6 7 8 9 Q. 10 11 12 A. 13 Q. 14 A. 15 16 Q. 17 18 19 20 A. 21 22 23 She is not helping us with the Alabama Department of Health at all. I specifically requested her because she is a respected, objective, independent person to take a look at that risk assessment and provide her input to it. That was the very specific reason I did it. Out of all the universe of people that you would have picked, you chose Dr. Kimbrough? Correct. GE chose her coo, didn't they? Not to look at any studies that we had anything to do with. Didn't they ask her to do this workers' study that had been criticized in the New England Journal of Medicine? MR. KELLY: Object to the form. She did a study funded by General Electric, an epidemiology study of their capacitor plants, which was published in the New Enqland Journal of Medicine. ocr'T t BffnnttTTMr ewmrmp tw WATER PCB-SD0000006000 217 1 2 3 4 5 Q. 6 7 8 9 10 11 A. 12 13 14 15 16 17 18 019 20 21 A. 22 Q. 23 There were letters written that are critical of that, and her response is also published with those letters addressing those criticisms. Tell me, Dr. Kaley, if you would how much y'all paid her to come down here and broker this deal with the Alabama Department of Public Health? MR. KELLY: Object to the form, no foundation. She brokered no deal with the Alabama Department of Public Health. She wrote a series of comments on a draft risk assessment. I submitted those to the agency. That is the only contact that was done. There was no deal cut. There was no such thing. Didn't she talk to Brian Hughes, who was the state epidemiologist, about the health effects of PCBs? Not to my knowledge. Is ic your testimony here today, Dr. Kaley, that she didn't have a REGIONAL REPORTING SERVICE, INC. 219 1 A. 2 Q. 3 4 5 A. 6 Q. 7 B A. 9 Q. 10 A. 11 12 13 14 Q. 15 A. 16 Q. 17 A. 16 Q. 19 A. 20 Q. 21 A. 22 Q. 23 I don't recall. Well, how much have y'all paid her over the past say six or seven or eight or nine, ten years? I have no idea. How long has she been working for y'all? MR. KELLY: Object to the form. She does not work for us. Sir? She does not work for us. She has appeared as an expert witness in some of the litigation. She has reviewed documents. How many? I don't know. Twenty? Two. Two? This case and what other? This case and Owens. And Owens? Yes. She has done consulting work for y'all before on other cases? orrsTAM^T. orono*TTMr5 cwums tuir 218 1 2 3 4 A. 5 Q. 6 A. 7 0. 8 9 10 A. 11 12 13 14 15 16 Q. 17 A. 18 19 Q. 20 21 22 A. 23 Q. conversation with Brian Hughes and come down and go down to Montgomery and talk to him? I'm not aware of it if she did. Did she go to the plant site with you? Yes. This disinterested, independent party went to this plant site with you? MR. KELLY: Object to the form. Yes. We asked her to look at the situation there and provide her input on what our program was to be and what her thoughts were about it for the very reason that she was an independent, outside observer. You were satisfied with what she said? I believe she basically said that the situation was as we understood it, yes. Did y'all have a conversation about it on the way to the plant site? Did y'all fly down together? No, sir. How much did you pay her? REGIONAL REPORTING SERVICE, INC. 220 1 A. 2 3 4 5 6 7 B Q. 9 10 11 12 13 14 15 A. 16 Q. 17 18 19 20 A. 21 22 23 Not that I'm aware of. She had some involvement as a government witness who appeared in a case we had in Illinois, but she was not working for us. I'm sure she received no compensation from us for that. She was there in her role as a CDC employee. On page six of this document, two paragraphs up, it says action. This has to do with the Monsanto plants. It says take steps to see that every precaution is taken to prevent Aroclor entering water streams. That applies to both Anniston and Krummrich, doesn't it? I would believe it would, yes. And then it talks about disposal and what you need to do about that. And on page seven y'all were looking at incinerators, weren't you? At some point or another. Obviously it talks about set up an incinerator to handle Aroclor disposal. So apparently we were thinking about it. PEfSTONaT, rfporttnG sf.rvtcw TNC. WATER PCB-SD0000006001 221 1 Q. 2 A. 3 4 5 Q. 6 7 8 9 10 A. 11 12 A. 13 14 15 16 17 18 Q. 19 20 21 22 23 Both liquid and solid? Well, solids such as muds or slurries. I don't -- I think that is qualified solids. Isn't it a fact, Dr. Kaley, that that is exactly what y'all recommended and indicated to your customers was the best approach as far as resolving this matter? I believe -- MR. KELLY: Object to the form. I believe that's correct, that we recommended. I don't know exactly what the recommendation was, but I think at some point we did recommend incineration of liquid AroclorB was the best means of disposal. You also told them in the course of the conversations with them that what y'all were thinking about doing was working out a deal where you could in fact take care of solids, didn't you? MR. KELLY: Object to the form. REGIONAL REPORTING SERVICE, INC. 223 1 2 3 4 5 6 7 B 9 A.' 10 11 12 13 14 15 16 17 18 19 20 21 22. Q. 23 that a pyrolysis of these materials in a rotary kiln followed by incineration of the resulting gasses at appropriate temperature will provide us with an acceptable solution. If you look at the first paragraph there he is talking about solid material contaminated with PCBs. Presumably aBkarel doesn't have to be PCB, but since it is Mr. Papageorge, I assume that is what he was talking about. But it doesn't say that we ever succeeded, and to my knowledge we never did succeed. And that is not an incinerator as such. That is pyrolysis in a rotary kiln for the solid materials then followed by a incineration of the resulting gasses, which would contain the PCBs, presumably. So it is different from incineration of solid waste. . It is a form of incineration of the byproduct of that first process, isn't 222 1 A. 2 Q. 3 4 A. 5 6 7 8 9 10 11 Q. 12 13 14 15 16 17 18 19 20 21 A. 22 Q. 23 I don't know. Isn't that what you wrote them and told them? I don't recall whether we did or not. I don't believe we were ever successful in coming up with a supplier with an incinerator that could deal with solids. but I'm not that knowledgeable about the incinerator. I don't believe it was ever able to handle solids. Now, let me show you what will be Plaintiffs' Exhibit Twenty-two. This is a letter written July 27th, 1970, in which the discussion was had by Mr. w. B. Papageorge, who I think was from the Anniston plant. He is a Monsanto employee, isn't he? (Plaintiffs' Exhibit Number Twenty-two was marked for identification.) He was. And he says in there that y'all were actively pursuing and have high hopes REGIONAL REPORTING SERVICE, INC. 224 1 2 A. 3 4 Q. 5 6 7 A. 8 9 Q. 10 11 A. 12 13 14 Q. 15 16 17 18 19 A. 20 Q. 21 A. 22 23 it? Had it been successful it would have been, yes. In the interim what does he recommend to your customer in Exhibit Twenty-two, the third paragraph? Use of properly operated sanitary landfills. Hell, what about the fourth paragraph? Where does he say it should be? It says these landfills must not be located near water systems, both surface and underground. And then it goes on to say what you should do, if you are a customer of y'all's, what you should do about that landfill that would be associated near water. Do you want me to read it? Yeah. Monitoring of rivers, creeks, lakes, et cetera, surrounding the fill, especially after heavy rainfall, will aid in OPf'TAmi DrTU^OT T W* CPBIFTrff TWf1 WATER PCB-SD0000006002 225 1 2 3 Q. 4 5 6 7 a A. 9 Q10 A. ii 12 13 14 Q. 15 16 17 A. 18 Q. 19 A. 20 Q. 21 A. 22 Q. 23 assuring that PCBs are not escaping into the environment. Can we agree, Dr. Kaley, that the landfill that is located south of 202 and the one west of the plant there in Anniston affect creeks and then ultimately a lake? No. Sir? I do not believe storm water runoff from those landfills historically or currently has any effect on Choccolocco Creek or Lake Logan Martin. Haven't y'all gone down to the Oxford ball field and taken steps down there to clean that up? Yes, we have. Aren't y'all investigating the creek? Yes. Snow Creek and Choccolocco Creek? Yes. - Does that happen to be because y'all are just corporate citizenB or you believe REGIONAL REPORTING SERVICE, INC. 227 1, 2 3 4 5 A. 6 Q. 7 A. 8 Q. 9 10 11 12 13 14 A. 15 16 . 17 18 19 20 21 22 23 Q. that the manner in which it was handled could have created the kinds of problems we are talking about? MR. KELLY: Object to the form. I don't know. It could have, couldn't it? I don't know. And if that pit up there was effectively open and liquid Aroclors were just dumped into it, then there is a distinct possibly that the pit south of 202 could have affected it? MR. KELLY: Object to the form. number one, I don't agree with your characterization of how the wastes were handled there. I do not believe liquid Aroclors were dumped into that landfill. But regardless of that, I still do not believe that because it was being operated as a landfill that significant levels of PCBs were leaving that landfill. The reason you don't think that PCBs in t%,- 226 1 2 3 4 S 6 7 A. 8 9 10 Q. 11 12 A. 13 Q. 14 IS A. 16 Q. 17 18 19 20 21 A. 22 Q. 23 that maybe your PCBs might have migrated down that creek because of the large size discharges and got in Snow Creek, now feeding into Choccolocco Creek and ultimately Lake Logan Martin? MR. KELLY: Object to the form. You were asking a question specifically about discharges from the landfills. I was answering that question. Oh, you say you don't think it came from the landfill? That's correct. Well, do you know where the Mars Hill Missionary Baptist Church is? Yes. Do you know whether or not drummed liquid and solid trappings from PCB production was not in fact buried there or held there in storage until it was taken to the dump? I don't know specifically that, no. Would it be fair to say that if it was that there is a distinct possibility REGIONAL REPORTING SERVICE, INC. 228 1 2 3 4 5 A. 6 Q. 7 A. B 9 Q. 10 11 12 13 14 A. 15 16 17 18 19 20 21 22 23 liquid form were dumped in that landfill is somebody told you that. You weren't there or present, were you? MR. KELLY: Object to the form. I was not present. Who told you that? I don't know. It is just my understanding. Well, how did you gain that understanding. Dr. Kaley? Tell the ladies and gentlemen of the jury how you became aware of the fact there were no liquid PCBs poured into that landfill. I don't know that there wasn't one drop of liquid PCBs. But the liquid PCBs were our product which we were manufacturing for sales. They weren't materials to be poured into a landfill. The landfills were primarily used for waste from the process, which were primarily -- to the extent they were, were primarily, as we talked about earlier, still bottoms. rr*o<m.* t ni?nrTTMi* nr'm?t < WATER PCB-SD0000006003 229 1 Q. 2 3 4 A. 5 7 8 9 10 11 Q. 12 13 A. 14 Q. IS A. 16 Q. 17 18 19 20 21 Q. 22 23 Well, were there not some liquid and solid trappings or still bottoms from the process? There would be very little liquid bottoms from that process. That was the whole point of the distillation process, was to still off the liquids, capture those as products. And what would be remaining would be basically a tarlike material or solid material. Now, do you know anything about the hydrology of that situation? of what situation? The landfill up there. Very little. Let me show you Plaintiffs' Exhibit Twenty-three. (Plaintiffs' Exhibit Number Twenty-three was marked for identification.) At the time frame that y'all wer taking these actions that we have just mentioned a minute ago in Plaintiffs' REGIONAL REPORTING SERVICE, INC. 231 1 2 Q. 3 A. 4 5 Q. 6 A. 7 8 9 10 Q. 11 12 13 14 IS 16 17 18 19 A. 20 21 22 23 Q. them for their electrical equipment. Agreement to do what? whatever it says, basically indemnify us after the date of the document, I guess. Indemnify you against what? Well -- I mean, I can read this. Do you want me to read the third paragraph? I don't know specifically other than what it says in this document. Isn't it a fact, Dr. Kaley, that you all were concerned about the adverse effects that PCB exposure --as far as humans were concerned, the adverse health effects could come about, and y'all wanted General Electric in between y'all and the person who got hurt? Isn't that what this is all about? MR. KELLY: Object to the form. I don't think it was targeted at human health effects. It was targeted at any potential liabilities associated with the PCBs. That would be somebody suing you because RPHTONAT. PPPnWTTNr! QFPVTCF TNC 230 1 2 3 4 5 A. 6 7 8 Q. 9 10 11 12 13 A. 14 Q. 15 A. 16 17 18 19 20 21 22 23 Exhibit Twenty-two, you entered into an agreement with General Electric Corporation on January 21st, 1972. Do you want to read that? I have read the first page. Do you want me to read the special undertaking? I've read it. Tell me if you would, Dr. Kaley, why this document was executed. Do you know? MR. KELLY: Object to the form. calls for speculation. Only the most general terms. Give me what general terms -Well, my understanding is that by this date Monsanto had made an internal decision to only market PCBs to selected --or some manufacturers of electrical equipment based largely on our understanding that they did not have available substitute materials. And we asked them to sign this agreement in order for us to keep selling PCBs to REGIONAL REPORTING SERVICE, INC. 232 1 2 3 A. 4 5 6 7 e 9 10 n 12 13 Q. 14 15 16 17 18 A. 19 20 Q. 21 22 23 they might have been harmed by PCBs? MR. KELLY: Object to the form. I assume that particular circumstance could be one of a number of circumstances. But I don't think that was the primary -- I don't have any reason to believe, at least, from what little I know that that was the primary driver for this document. It was an assumption or basically an agreement to indemnify against all -- whatever the various liabilities might be. Hell, doesn't that fly in the face, Dr. Kaley, of your stance to the ladies and gentlemen of the jury that there is no harm that comes from this substance? MR. KELLY: Object to the form. I don't think it flies in the face of it at all. I mean, if you. Dr. Kaley, are saying to the ladies and gentlemen of the jury that there is no harm that comes from it, why in the world would you need an REGIONAL REPORTING SERVICE. INC. WATER PCB-SD0000006004 233 1 2 3 4 A. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Q. 19 20 21 A. 22 23 indemnification agreement from General Electric to sell them the product? MR. KELLY: Object to the form. Number one, I wasn't the decision maker on that process. But I do not believe that PCBs are associated with serious long-term human health effects in humans. However, PCBs are an industrial chemical. They are persistent in the environment, and there are various liabilities associated with that, whether they be cleanup liabilities or any liabilities." And that would be my --a layman's understanding of the nature of this legal agreement that Monsanto asked its customers to undertake. it may cause harm, so y'all wanted protection, correct? MR. KELLY: Object to the form. I believe we wanted the protection - whether it caused harm or didn't cause harm. REGIONAL REPORTING SERVICE, INC. 235 1 Q. 2 3 4 5 6 7 a 9 10 A. 11 12 13 Q. 14 15 16 17 18 19 A. 20 21 Q. 22 A. 23 Wasn't one of the sort of lead-ins for these folks accepting your new product to continue to produce it and continue to provide it to a lot of your customers around the world until you got new products into their hands? Isn't that what you did? MR. KELLY: Object to the form, no foundation. Certainly we were trying to introduce substitute products in some applications for thoBe products, yes. And on page four of this document -- I think it was Twenty, this defense of Aroclors, page four of the full body of the document, there is a Richard that was suggesting possible substitution of Aroclor 5442 for Aroclor 1254? I'm sorry, where are you? I'm sorry. I see that. Yea. And on page five -Well, I want -- I don't know why you just said that, but I would point out npr>TA%Tr rr,Tv\r>*r*T*v' iti^c tmh 234 1 Q. 2 3 A. 4 5 Q. 6 7 B A. 9 10 11 Q. 12 13 14 15 16 17 A. IB 19 20 Q. 21 A. 22 Q. 23 A. Now, y'all were making money in this process, weren't you -I would presume so. MR. KELLY: Object to the form. -- from your customers here like General Electric? Weren't y'all making money? MR. KELLY: Object to the form. Without being too much of a wise guy, I presume we weren't making it to lose money. When you took it back is what I'm saying. Didn't y'all take back fluid from these customers and make money off it by incinerating it up there at your plant in Sauget? MR. KELLY: Object to the form. I can't imagine we were making money. I mean, we were charging a nominal amount to cover our costs. what? What? What? I have no idea what it was. REGIONAL REPORTING SERVICE, INC. 236 1 2 3 4 Q. 5 6 7 A. 8 9 Q. 10 A. 11 12 13 14 Q. 15 16 17 18 A. 19 20 21 22 Q. 23 that Aroclor 5442 is a polychlorinated terphenyl, not a polychlorinated biphenyl. Okay. On five it says switch customers to Therminol 55 or Therminol 66. Now, what are those products, PCBs? No. Those are non-PCB heat transfer fluids. That you all -Both of those efforts were part of our efforts to substitute non-PCB products for products which formerly contained PCBs. Then on page six you're talking about seeking a government contract on absorption and incineration cycles. Is that right? Yeah. That is MRC, which is that Monsanto Research Corporation, which is kind of an independent research arm of the company, right. Then on seven you were doing these chronic toxicity studies up there where owriTfiMUT. dfoad'ptws cwovrr'P TMr WATER PCB-SD0000006005 237 1 2 3 A. 4 5 Q. 6 A. 7 Q. 8 9 10 A. 11 12 Q. 13 14 15 16 17 IB Q. 19 20 A. 21 22 23 old Paul Wright was; is that right? MR. KELLY: Object to the form. Well, 1 don't know if he was there in 1969 or not. That is the Independent Bio-Test stuff? Industrial Bio-Test, yes. Okay. And this was the defense products to keep it going? MR. KELLY: Object to the form. This was a draft letter to address, you know, possible activities. Okay. Now, isn't it a fact that you all, just sort of like you worked out of the situation in 1985, were able to work out of this situation in 1971? MR. KELLY: Object to the form, no foundation. Isn't that a fact? . MR. KELLY: Object to the form. We didn't work out of any situations, assuming you are intending what you are intending. In 198S -- In '90 we were implementing exactly the program we . REGIONAL REPORTING SERVICE, INC. 239 1 2 3 A. 4 Q. 5 6 7 A. a Q. 9 10 11 A. 12 Q. 13 14 15 16 17 A. 18 Q. 19 20 21 22 23 A. guy named John White, who was director of enforcement. Yes. Mr. White had two primary areas for concern it says down there, doesn't it -It says that. --on this document? Is this Twenty-five on this -- Is it Twenty-five? I'm sorry. Twenty-four. The Federal Department of Justice apparently reconvnended that suit be initiated against the Anniston plant for PCB emission under the Federal Refuse Act. Is that what it says? That's what it says. Now, y'all had worked so long with Mr. Crockett that he helped you work out of that situation, didn't he? MR. KELLY: Object to the form, no foundation. I don't know that Mr. Crockett helped or 238 1 2 3 4 5 Q. 6 7 8 A. 9 Q. 10 11 12 13 14 15 Q. 16 17 A. 18 19 20 21 22 Q. 23 proposed in '86. (Plaintiffs' Exhibit Number Twenty-four was marked for identification.) I understand. Let me show you Exhibit Twenty-four and let you take a look at it. I've read it. Now, Dr. Kaley, isn't it a fact that y'all were being investigated by the folks at Region Four for PCB contamination of Snow Creek and perhaps even on down to Choccolocco Creek -- MR. KELLY: Object to the form. --in November of 1971? MR. KELLY: Object to the form. I don't know about the term investigation. Apparently from thiB memo EPA did have interest in the PCB effluents from the Anniston plant to Snow and Choccolocco Creek. Well, on page two of this thing it indicates who was there, and there is a REGIONAL REPORTING SERVICE, INC. 240 1 2 3 4 5 6 Q. 7 8 9 10 11 12 13 14 A. 15 16 Q. 17 A. 18 19 20 Q. 21 22 23 A. didn't help. He was certainly present at the meeting. It would make sense that a representative of the State of Alabama would be present just as they often are in meetings with ADEM today. On page two of this document it says that -- and I think it is paragraph two, there was considerable discuesion concerning limiting levels of PCBs that should be permitted in the discharge. Mr. White suggested no detectable amount. That is the guy from the federal government, isn't it? That is one of the men that was there from EPA, yes. who spoke up next? Can you read that? Mr. Crockett and the Monsanto personnel pointed out that this was an undesirable approach. So Mr. Crockett, who worked for ADEM, spoke up along with y'all and said this is just not desirable? Well, number one, I don't know if it wa9 WATER PCB-SD0000006006 241 1 2 3 Q. 4 A. 5 6 1 B Q. 9 10 11 A. 12 Q. 13 A. 14 Q. 15 A. 16 17 18 19 Q. 20 21 A. 22 Q. 23 ADEM or AWIC at this time. But apparently his understanding -AWIC, probably AWIC. I mean, basically his understanding would have agreed with ours, that that was -- apparently was an undesirable approach. Y'all had worked with Mr. Crockett and sort of helped him along to that understanding, hadn't you? We provided information to AWIC -Analytical stuff? Pardon? Analytical stuff? well, we were providing data to the department and keeping them apprised of our efforts to reduce our discharges, yes. That was a little old bitty department, wasn't it, in 1971? I don't have any idea. Monsanto was probably bigger than that little bitty department, wasn't it? REGIONAL REPORTING SERVICE, INC. 243 1 2 3 A. 4 5 6 Q. 7 8 9~ 10 11 12 13 A. 14 15 16 17 18 19 20 Q. 21 22 . 23 were educating poor all Mr. Crockett? MR. KELLY: Object to the form. I have no reason to understand he was poor or old either one, but certainly we were doing our best to -I don't mean poor from a standpoint of financial. I mean just doesn't have the resources, didn't have the resources. So that the ladieB and gentlemen of the jury understand it, just didn't have the resources y'all did? MR. KELLY: Object to the form. I have no idea whether that is true or not, but we were certainly communicating in our efforts to reduce our discharges from that plant and providing information to Mr. Crockett and whoever else at the regulatory agencies as there were others involved at the time. Just like you did with the poor attorney general when you didn't tell him about all this history of things in 1985? MR. KELLY: Object to the form. oppTA*n r ne*ri/~ir5nr>rv?r cpnifTAr tm/"* 242 1 A. 2 Q. 3 4 5 6 A. 7 8 9 10 Q. 11 12 A. 13 Q. 14 15 A. 16 Q. 17 18 A. 19 Q. 20 .21 22 23 I have no idea. Sort of an unfair situation, wasn't it. with Mr. Crockett trying to regulate y'all? MR. KELLY: Object to the form. I couldn't imagine it would be. If that was his job, then he I'm sure was carrying it out to the best of his abilities. Do you have any idea how much their budget is today, ADEM? NO. Do you have any idea how much it was in 1971 or AWIC's budget? NO. Well, wasn't it just a part of the Alabama Health Department? I don' t know. And here is this big old company in there with all that personnel and sophisticated scientific data. Dr. Tucker doing all this work. Isn't it fair to say. Dr. Kaley, that y'all REGIONAL REPORTING SERVICE, INC. 244 1 A. 2 3 Q. 4 5 6 7 8 9 10 11 12 13 A. 14 15 16 17 IB 19 20 21 22 23 I have no idea what you are talking about. And then in the next -- in paragraph one it says Mr. Crockett and Mr. White will agree upon an interim permissible level for PCB admission to be provided in the Refuse Act permit. Obviously Mr. Crockett will press for a number in excess of our zero point three pounds per day current level. Why in the world would he be doing that? MR. KELLY: Object to the form. I don't know why he would be doing it. I would speculate that he understood at that particular point in time the three pounds per day was the best we could do and that we were going on to do other things to reduce that level. If you look at number two, it talks about that level will be reviewed again when our new separation equipment is in operation and to arrive at a new permit level. So it was basically setting an interim ijpatamut opdab't'Tma proirtAe WATER PCB-SD0000006007 245 1 2. 3 4 Q. 5 6 7 8 9 A. 10 11 Q. 12 13 14 15 16 Q. 17 18 19 20 A. 21 22 23 level that would allow us to operate but give us time to get new pollution control devices in place. You all are good at setting interim levels and Interim measures that ultimately become permanent levels, aren't you, Dr. Kaley? MR. KELLY: Object to the form. I have no idea what that statement means. That is what your efforts are today. isn't it, to put in interim measures? Isn't that what the consent orders that you all are operating under say? MR. KELLY: Object to the form. Interim measures are being put in place up there on those landfills and around that remediated area east of the plant? MR. KELLY: Object to the form. The interim measures and the consent orders are two entirely different things, we are --We have implemented a variety of interim measures to expedite REGIONAL REPORTING SERVICE, INC. 247 1 2 3 4 5 6 7 8 9 10 11 A. 12 13 A. 14 Q. IS 16 17 A. 18 19 Q. 20 A. 21 22 23 find out. It was suggested by Mr. White on page three that it might be desirable to dredge Snow Creek. This was in 1971. I believe we convinced him that this is undesirable. Do you know what arguments these gentleman used at that particular point in time to keep this fellow both from suing them, suing Monsanto, and dredging Snow Creek at that time? I don't -- MR. KELLY: Object to the form. I don't know the specific arguments, no. Isn't it a fact that you all thought about closing this plant in around 1987? Didn't you think about closing it? I seem to have some slight recollection of that. I don't know specifically. Sir? I said I seem to have some slight recollection of the discussion for that potential, but I don't know if that was the date or not. 246 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Q. 17 18 19 20 21 A.22 23 Q. and facilitate management of PCBs on those sites. If we had not done that. those areas that we have remediated would have remained unremediated. So, yeB, we are clearly hopeful that when we go to final corrective measures on our site that those interim measures will be accepted as final measures. But there is no guarantee of that. That is up to the regulators to determine whether that's the case or not. But we certainly have used interim measures to address the issues around our plant site so we could move more quickly than we would have been able to otherwise. Hopefully the cheapest, least expensive way to put a Band-Aid on the problem would be accepted by the government is what you are hoping for? MR. KELLY: Object to the form. That is an absolutely incorrect characterization of our efforts. We will go through that in a minute to REGIONAL REPORTING SERVICE, INC. 248 1 Q. 2 3 4 A. 5 Q. 6 7 8 A. 9 Q. 10 11 12 A. 13 Q. 14 A. 15 Q. 16 17 18 19 20 21 Q. 22 23 Did you put it on the block or think about putting it on the block at that time? Not that I'm aware of. Well, don't y'all have a history of the plant, a document that is entitled history of the plant? You obviously do. Well, I would suggest to you. Dr. Kaley, that it was provided to me by your lawyer. I'm sure it was. I'm sorry for the -No. That's okay. -- frivolity. I just wanted you to know where it came from. MR. STEWART: Mark that, please. (Plaintiffs' Exhibit Number Twenty-five was marked for identification.) This is Plaintiffs' Exhibit Twenty-five to your deposition. And on page -well, the last page. On October 25th, WATER PCB-SD0000006008 249 1 2 3 4 5 A. 6 7 0. 8 9 10 11 12 13 A. 14 15 Q. 16 17 A. 18 Q. 19 20 21 22 A. 23 Q. 1965, Monsanto announced that it was withdrawing from the parathion business and putting the Anniston plant on the sales block. I'm sorry. I was skimming the other part. Where are you, on the last page? On the last page. I just want to ask you about the sale. On October 25, 1985, they announced that -- Monsanto did, that they were going to withdraw from the parathion business and put the Anniston plant on the sales block? Okay. That's what it says. Yes, I agree that it says that. Since that time several attempts to sell the plant have been unsuccessful. It says that. Okay. Isn't one of the reasons, Dr. Kaley, that that sale was unsuccessful because of the PCB problem? MR. KELLY: Object to the form. I have no idea. And wasn't a decision made. Dr. Kaley, REGIONAL REPORTING SERVICE, INC. 251 1 A. Yes. 2 Q. Okay. Let me show you what we will mark 3 ` as our next exhibit and ask you to take 4 a look at it and identify it for me if 5 you would. 6 (Plaintiffs' Exhibit Number 7 Twenty-six was marked for 8 identification.) 9 Q. That is Twenty-six. Take a look at that 10 and let me ask you some queBtionB about 11 it. 12 A. Do you want me to do the whole document 13 or just the front page? 14 Q. Well, there are a number of questions 15 I'm going to ask you about it. We can 16 17 A. go from page to page. I mean, 1 can read it. If you want me 18 to look at the whole thing, I will. 19 That'9 fine. 20 Q. Have you had the opportunity to look 21 at -- Or. Kaley, you have had the 22 opportunity to look at this document. 23 Plaintiffs' Exhibit Twenty-six? Oflf'TAMUT DPn/Mi'r'rcfotrrnB urn 250 1 2 3 4 5 6 7 A. B 9 10 11 12 13 14 15 16 17 18 Q. 19 20 21 22 23 by Monsanto to keep this plant specifically because of the landfills and waste stream that was located on that site? MR. KELLY: Object to the form, no foundation. The next statement after you asked me to read says during the past eighteen months demands for the Anniston plant biphenyl products has improved to the point that efforts to sell the plant have ceased and a major restructuring of the plant is taking place to position it to stand alone as a small Monsanto facility. That would be my understanding at to the reason that decision was made. Well, isn't it a fact that you all had a couple of gentlemen working for you who did an environmental survey of that plent at the time that these decisions were being made? Do you know a D. B. Reddington and Pierle, Mike Pierle? REGIONAL REPORTING SERVICE, INC. 252 1 A. 2 Q. 3 4 5 A. 6 Q. 7 A. 8 9 10 Q. 11 A. 12 13 14 Q. 15 16 A. 17 Q. 16 A. 19 20 21 Q. 22 23 Yes, I have. It is dated February 26, 1987, and it is entitled "Environmental Status, Anniston Plant"? Correct. Who is D. B. Reddington? He was the environmental affairs manager for the agricultural company at Monsanto. Who was Mike Pierle? He had I believe -- Well, I believe he had a similar position for the chemical company. And on page two of this document it says RCRA remedial action? I'm sorry -it says two at the top on mine. I'm sorry. I was counting pages. I see where it Bays that now. I'm with you now. Yes. It talks about some things that needed to be done, and it says limestone bed, old landfill cells, added monitoring OPHTninr. e'Of'kO'TTXH'l CB\7T/"*1? IMP WATER PCB-SD0000006009 253 1 2 3 4 A. 5 Q. 6 A. 7 8 9 10 11 12 Q. 13 A. 14 Q. 15 16 17 A. 18 19 A. 20 21 22 23 wells, four voluntary, two deep, two shallow. Then it says PCB removal, Snow Creek. Yes. what does ERAP mean? I knew you were going to ask that, and I don't know the answer exactly. But basically what it is is a proposal to do some work, so it is actually -- there is actually a project description out there to do that particular work. To remove something from Snow Creek? Yes. ' Is that this little thing we were talking about that had been proposed and was finally worked out in 'B8 or '89? I don't know about little thing. MR. KELLY: Object to the form. Sorry, Mike. I don't know about little thing, but it was --my understanding would be it was the proposal we had made to ADEM of 1986 and by February of 1987 had not been undertaken as yet. REGIONAL REPORTING SERVICE, INC. 255 1 2 A. 3 4 5 6 7 8 Q. 9 A. 10 Q. 11 12 A. 13 14 IS 16 17 18 19 20 21 22 23 Q. there? Well, if you go to the next page, that is exactly what they are talking about. It is titled "Chlorinated Organics in the Ground Water," and it lists those chlorinated organics in the ground water. No PCBs? No PCBs. Is all this stuff up there in that landfill with the PCBs south of 202? I don't know where this stuff -- I don't know where -- I don't know where these particular wells are and where these may have been detected in landfills. I don't think they were probably in landfills at all. I think they were probably from ongoing operations. They talk about productions and things. I don't know where they are or how they were used or how they potentially got in ground water. what are they? pprsTOMiT. pppnpTTMf; cppvrrr twp 254 1 Q. 2 3 4 5 6 A. 7 8 9 10 11 12 13 14 15 16 17 Q. 18 19 20 A. 21 Q. 22 23 Well, Snow Creek is a fairly lengthy creek, and you were talking about a hundred feet of it. Would you admit that was a small portion of the total length of the creek? I don't know what Mr. Reddington may have meant by Snow Creek. That was a generic term that was used for ditches, for the creek itself. I mean, I don't remember the title of the proposal, but it had something to do with Snow Creek sediment removal or something. So I mean, that's why he said that. I don't think he was intending to characterize whether it was a small or large portion of the creek. Well, it goes on over there and says Anniston environmental review, future potential problem? Yes. The first one is chlorinated hydrocarbons in the ground water, what in the world are they talking about REGIONAL REPORTING SERVICE, INC. 256 1 A. 2 Q. 3 A. 4 5 6 Q. 7 8 A. 9 10 11 12 13 14 15 Q. 16 A. 17 Q. 16 A. 19 20 21 22 Q. 23 They are primarily solvents. Solvents like TCE and -Yes. That is probably one of them, if you look on here. Trichloroethene, the second one listed is TCE, yes. That comes from the manufacturing process probably? I don't know where it came from. More than likely it was -- These things are used as degreasers and any number of things. I don't know where these particular materials came from or how they were used in the plant or why they would be a concern in ground water. Well, is there -They are fairly low levels actually. Are PCBs not chlorinated hydrocarbons? They are chlorinated hydrocarbons, but the term is more like --is more often used to describe these chlorinated solvents. Now, it says future -- potential future mobilization of soil contaminants. What pprsmuftt. prr>PTTMn SRPVTrs tmp WATER PCB-SD0000006010 2S7 1 2 A. 3 4 Q. 5 A. 6 Q. 7 8 A. 9 10 11 12 13 14 15 Q. 16 17 IB A. 19 20 Q. 21 22 A. 23 Q. does that mean? I don't know what they means. I looked at that. PCBS is at the top? Yes. Doesn't that mean that there might be a problem in the future with PCBs? Well, that would be the sense of the document. It is listed future potential problems, and PCBs are listed, and potential future mobilization of soil contaminants. So that is presumably what was meant. But X don't know specifically -Mobilization -- Excuse me. I didn't mean to cut you off. Mobilization would mean possibly that you move it off site? Move it somewhere on or off site, yes, potentially. And PCBs are first, and then you have mercury, right? Yes. So back in February 26th, 1967, they REGIONAL REPORTING SERVICE, INC. 259 1 2 Q. 3 4 S A. 6 7 8 9 A. 10 11 12 Q. 13 14 15 16 17 18 19 20 21 22 A. 23 aware of any potential order. Has anybody said anything to you about how that was handled and how that was worked out? , Well, since I don't know anything about it -- MR. KELLY: Object to the form, no foundation. -- obviously nobody said anything to me about it, because I presumably would know something about it, and I don't. So as you sit here today am I to understand that in your position --at that time you were the steward, company steward or had stewardship over the corporate responsibilities for PCBs, which would include PCB waste, and you know nothing about an order, an administrative order, that had something to do with cleaning up that waste at the plant in '87 and '68? Well, number one, I don't know what the order is. I don't know whether it ryT?/* t aits T rirs %* 258 1 2 3 4 5 6 7 8 A. 9 10 11 12 13 14 15 Q. 16 17 18 19 20 21 22 23 A. recognized there was a problem. Is that why the EPA issued a draft administrative order or put one together, to try to get Monsanto to do something about some of these problems? MR. KELLY: Object to the form, no foundation. In the first place, it doesn't say these are problems. It says they are potential future problems. In the second place, I'm not sure which -- what you are talking about in the second part of your question. Could you be more specific about what EPA -Do you know anything about an administrative order that was entered into by -- or issued or potentially was going to be issued against this Monsanto plant in Anniston, Alabama, for some of the problems that we have just been talking about hare all day long, Dr. Kaley in 1987, 1998? No, not in that time frame. I'm not REGIONAL REPORTING SERVICE, INC. . 260 1 2 3 4 Q. 5 6 7 A. a Q. 9 10 11 A. 12 13 Q. 14 15 A. 16 17 16 Q. 19 20 21 22 23 addressed PCBs or not. But regardless of either of those, I'm not aware of it. no. If it says you ought to test for off migration of PCBs, no one ever told Dr. Kaley, Dr. Robert Kaley, that? I'm not aware of it, no. Who would have briefed you on this particular site? MR. KELLY: Object to the form. I have no idea in that particular time frame. Could that have been handled at a level up above you by someone else? It could have been handled at a level above me or a level below me. I don't know. All right. Let me show you Plaintiffs' Exhibit Number Twenty-seven and ask you to take a look at it, please, sir. (Plaintiffs' Exhibit Number Twenty-seven was marked for identification.) T5Br*TrW*T OBBrtOTTVV! CPOVT^C TMf1 WATER PCB-SD0000006011 261 1 A. 2 Q. 3 4 5 6 7 A. 8 9 10 11 12 13 14 15 16 17 18 19 20 Q. 21 22 23 I've read it. Excuse me. I've read it. All right. Are we talking about millions of dollars here or thousands of dollars? Five point eight M, for instance, in the first paragraph, is that five point eight thousand dollars? I have trouble with the Ms and the Ms with the lines over them. Although I would believe in this case it is probably five point eight million dollars. Five point eight thousand dollars would not be a very significant amount of money to talk about closure activities and things like that. So I will assume it is millions, and further down they say three hundred to four hundred K per year. That would be thousands. So I would think that's millions. so ongoing monitoring and remedial actions associated with the old parathion plant and landfill are estimated at three hundred to four REGIONAL REPORTING SERVICE, INC. 263 1 2 Q. 3 4 A. 5 Q. 6 7 8 A. 9 Q.' 10 11 12 13 A. 14 15 A. 16 17 18 19 Q. 20 21 22* 23 A. general, PCBs or not PCBs. Well, isn't Mr. Pierle the one who with Mr. Reddington did this study? Yes. And this letter and study. Exhibit Twenty-six, February 26, 1987, the same date as this letter? Yes. And wasn't one of the problems that we just got through mentioning that there were some PCB problems there at the plant? It was listed -- MR. KELLY: Object to the form. Sorry, Mike. It was listed as a potential future problem. It was not listed as one of the current problems they were addressing. Okay. So when they made the survey they just ignored the possibilities that it might be a problem? MR. KELLY: Object to the form. They listed them as a potential future ni/'t t npnAnifTMjm f^rn?T/*o tmp 262 1 2 A. 3 Q. 4 5 A. 6 7 Q. 8 A. 9 10 11 12 Q. 13 14 15 16 A. 17 Q. 18 19 20 21 22 A. 23 hundred thousand K per year? Yes. That is the landfill that is south of 202? Presumably that would be the case because the west landfill was This is February 26, 1987? Yes. The other landfill would have been an APCO property at that time. So I believe that would be the south landfill. This says it should be made clear however that no monies have been reserved for a major site cleanup program? It says that. So nothing was going to be done as of February 26, 1987, as far as PCBs were concerned about a major cleanup of this site? MR. KELLY: Object to the form. Well, this document doesn't even mention PCBs. So it was just the site in REGIONAL REPORTING SERVICE, INC. 264 1 2 3 4 5 Q. 6 7 A. 8 Q. 9 10 11 12 13 Q. 14 15 16 A. 17 18 19 Q. 20 21 A. 22 Q. 23 problem, but this is addressed -- This memo as I read it is addressed to the actual ongoing activities, not future -potential future problems. Well, they did something about PCBs, didn't they? I don't know what that means. Let me show you Exhibit Number Twenty-eight, I believe it is. (Plaintiffs' Exhibit Number Twenty-eight was marked for identification.) And this is a report back from Mr. Cheever to Mr. Reddington. Can you tell us what he did? This reads with response to an effort to get all of the PCB containing electrical equipment off the Anniston plant site. Well, actually it says a little more than that, doesn't it? I don't know. I just read it carefully. In the letter it says, "Per your above referenced request, attached herewith is BffnTAMir DTroAD'TTvin ecovTr'w rwr WATER PCB-SD0000006012 265 1 2. 3 A. 4 5 Q. 6 A. 7 8 9 10 11 Q. 12 13 14 15 16 17 18 A. 19 20 21 22 Q. 23 the plan to achieve a PCB-free status at the Anniston plant"? Yes, but that is with regard to electrical equipment. That'a - That was a plan throughout the company to remove PCB containing electrical equipment from the various plant sites, and that is why the PCB-free plan here addresses electrical equipment. Well, you just didn't pay much attention to the stuff east of the plant or in the creeks or coming out of the landfill. but we want to make sure that transformer is clean. Is that what I'm understanding you to say, Dr. Kaley? MR. KELLY: Object to the form. The PCB plan for this Anniston plant was part of a company-wide program to remove PCB containing electrical equipment from all of our plants. But would it be fair to say that the other problems that have since cropped REGIONAL REPORTING SERVICE, INC. 267 1 2 Q. 3 A. 4 Q. 5 6 A. 7 Q. 8 9 10 11 A. 12 Q. 13 14 15 16 17 18 19 20 21 22 23 A. about. Weren't you with the company in '80? I was. Were you with the environmental group in ' 80? No, I was not. Weren't you testing samples that were taken in connection with the plant down there in Anniston? MR. KELLY: Object to the form. I may have been. Well, let me show you what we will mark as Exhibit Twenty-nine and ask you to identify it. This is a Monsanto document that has to do with the corporate environmental policy regarding the sale or transfer of ownership of Monsanto owned lands is as follows. It is apparently board policy. (Plaintiffs' Exhibit Number Twenty-nine was marked for identification.) A what? oc'r>T/->vr* t oc'nrio'rT \ir> pptjwrrff rwr 266 1 2 3 4 5 6 A. 7 8 9 10 11 12 13 Q. 14 15 16 17 18 19 20 21 22 23 A. up were certainly ignored in this time frame either by Mr. Pierle, by Mr. Reddington, by Mr. Potter, and Mr. Cheever? MR. KELLY: Object to the form. I think they recognized the potential. But as we said very early this morning, the PCB inpact and the presence in ground water was a surprise to us in 1993. And partly what you are saying is correct in that we were not aware of those potential problems at that time. Okay. Really what happened on this plant site is y'all were just following corporate policy that had been devised as far back as May of 1980 where you decided if you had a waste stream that could prove harmful to people in the future, you are just going to hold onto that property? Isn't that what y'all had decided? - MR. KELLY: Object to the form. I have no idea what you are talking REGIONAL REPORTING SERVICE, INC. 268 1 Q. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 A. 16 17 18 19 20 21 22 23 A board policy. Retain ownership of all company land known to contain waste of such composition and quantity which has the potential for injury to health or the environment except where otherwise approved by the environmental policy committee. It says to coirply with the policy anybody that is going to sell land like that has to check with the long timers and retirees and find out where that waste is buried and get available waste disposal records. Have you attempted to do that at all in connection with this site? No, because I don't believe, number one -- I have never -- I don't know what this specifically applies to, but I don't believe we have attempted to sell any of this property since I've had an ongoing relationship with this site, other than that document which I had not seen before either. So I assume they were going to do something like that. I DP/ltrwTAT or*Dri'PTx^ ero^rTrT TKtr* WATER PCB-SD0000006013 269 1 2 Q. 3 4 5 6 7 8 9 10 Q. 11 12 13 14 15 16 17 18 19 20 21 A. 22 23 just don't know. . And as a result of this policy, probably decided because of that potential for contamination in the future, let's don't sell this thing, because what would happen if you sold a site. Dr. Kaley, to someone else and had this landfill on there? who would they report to? MR. KELLY; Object to the form. If they didn't generate the material that was on that site, just bought up a piece of property and it had a waste or landfill on it, dump, and it had material like PCBs in it governed by certain regulations and other things, and they didn't generate it, who would they report it to if they found it, like the power company did? CERCLA, isn't that who? MR. KELLY: Object to the form. I'm not sure I follow your question, but it doesn't matter because the answer is I don't know enough about environmental REGIONAL REPORTING SERVICE, INC. 271 1 2 3 Q. 4 A. 5 6 7 8 9 10 Q. 11 A. 12 13 14 15 Q. 16 17 18 19 A. 20 21 22 23 property. But whether that happens anywhere or not, I don't know. what happened. Dr. Kaley? When Alabama Power discovered PCBs on what was formerly the west end landfill, they reported that finding to the state and to us. Eventually we reacquired that property. So that was an example I think of what you were describing. It is your understanding -And that is what happened in that particular case, but I don't know whether that would happen in any particular case or what. It is your understanding that there were RCRA permits in place that covered the landfills that were located on the facility at that time, your property? I believe that is correct. I'm not very conversant in what permits or not permits were there with regard to RCRA or anything else. But I believe, since I think many of the activities were done ofnrriMJiT oPono'i'TKtr. er,TrTr*v TMr 270 1 2 Q. 3 4 5 6 A. 7 s 9 10 Q. 11 12 13 14 15 A. 16 17 18 19 20 21. 22 23 regulations to know how to answer that. Well, how is it that you assist these people in -- just technical aspects of it? You don't handle the environmental regulation part? I deal with the environmental regulations that apply specifically to PCBs, but I have very passing knowledge of RCRA and CERCLA and things like that. So you are saying as you sit here today you don't know whether you would kick this over to CERCLA if you were not the generator of the waste, just happened to buy the property? I think a lot would be dependent on the terms of sale. You know, some of that may very well be covered in the terms of the sale of the property. If not, I don't know what the approach would be. I know what Alabama Power did in a situation similar to that. They went to the state. The state came to us, and we reached an agreement to reacquire that REGIONAL REPORTING SERVICE, INC. 272 1 2 3 4 5 Q. 6 7 A. 8 9 10 11 12 Q. 13 A. 14 Q. 15 16 17 A. 18 19 20 21 22 23 under a reauthorization of our RCRA permit, there must have been a RCRA permit in place, so I think that is correct. But this west end landfill wasn't covered under that RCRA permit, was it? I don't know. I do not believe so. I believe that was part of the goal of reacquiring it, and then it was put under the RCRA in the reapplication or whatever it was called. Just exactly how did that happen? I'm not sure I understand the question. Well, just exactly how did this west end landfill find its way under your RCRA permit? Well, again, I'm stretching my knowledge of what happened. But my understanding is that once we reacquired that property we notified ADEM that it was an additional what we call a solid waste management unit associated with the former operations of our plant, and it OCnTriN&T. BBOOPTTNf! QEPVTPIS TMf* WATER PCB-SD0000006014 273 1 2 3 4 5 6 Q. 7 A. 8 9 Q. 10 11 12 13 14 A. 15 16 17 18 19 20 21 22 23 was --In fact, the cover of that landfill was done as an interim measure under that permit. I could be wrong, partly wrong, totally wrong, but that is basically my understanding. Did y'all have any hearings? Oh, yes. That permit went to public hearing, absolutely. That permit went to public hearing at the time y'all slipped this west end landfill up under that existing RCRA permit? MR. KELLY:* Object to the form. We didn't slip anything. If it happened, Mr. Stewart, I told you I am walking on very shaky ground here. That is my understanding of the status of the west end landfill at this point. But certainly when our permit was reauthorized there was public hearing. There was a public -- There were two. There was I believe a public availability session and a public REGIONAL REPORTING SERVICE, INC. 275 1 2 3 4 5 A. 6 7 Q. 8 9 10 11 12 A. 13 14 Q. 15 A. 16 Q. 17 18 19 20 21 22 23 like that. Now, he might not have been down there, but you had some other buddies down there? MR. KELLY: Object to the form. That's a complete mischaracterization of the process, Mr. Stewart. You certainly didn't have a hearing at the time that occurred where the public knew a thing about what was happening, did you? MR. KELLY: Object to the form. It was available in public records to the extent the public wanted to -Public records? We were reporting to ADEM. Well, now, Dr. Kaley, isn't what actually happened that y'all just sent a couple of letters around the horn from Mr. Jones, and then somebody down at ADEM sent a letter over to the epa and they said that's all right, y'all just slip up under there? Isn't that what y'all did at that time? 274 1 2 3 Q. 4 5 6 A. 7 8 9 Q. 10 A. 11 12 Q. 13 A. 14 IS 16 Q. 17 IB 19 20 21 22 23 hearing associated with the reauthorization of that permit. But isn't it a fact that those hearings were held long after y' all reacquired the property from Alabama Power? Well, I don't know what long is. They were within two or three years, I believe. Two or three years? Four. I don't know when. We reacquired the property in '93 or '94. Right at the end of '93, Dr. Kaley. That would be my recollection, December of '93. And I don't know when those permit hearings were, '97 or '98. The Alabama Power Company paid y'all seven hundred and fifty thousand dollars to take this back. Y'all slipped off down to Montgomery in the dead of the night and got them to let y'all take thie landfill and stick it under that - same agency that AWIC became, where you had good old Mr. Crockett and people REGIONAL REPORTING SERVICE, INC. 276 1 2 A. 3 4 Q. 5 6 7 e 9 10 11 12 13 14 A. 15 16 17 18 19 Q. 20 21 22 23 MR. KELLY: Object to the form. I have no idea what you are talking about. I'm just asking you because I really don't know a whole lot about it. I'm just trying to figure out how all this was done. Is that another one of those deals where you invited somebody to come to the Chemical Manufacturers Association, said here is what we will help you do if you can sort of help us slip this thing under our RCRA permit? MR. KELLY: object to the form. In the first place, there was never anything like that. In the second place, we undertook our responsibilities under appropriate regulation and with appropriate regulatory oversight. I understand. I understand how it happened. Now, Mr. Godfrey, who worked for the power company, said they checked your RCRA permit and they couldn't find anything in your RCRA permit that n,TTT - ___ _ , T%ir. WATER PCB-SD0000006015 277 278 1 2 3 A. 4 5 6 Q. 7 8 9 10 11 A. 12 Q. 13 14 A. 15 Q. 16 A. 17 Q. 18 19 A. 20 Q. 21 22 23 covered this west end landfill. So they reported it to cercla. If that is what he said and that is his understanding -- I have no comment on what Mr. Godfrey said or didn't say. You really don't know what happened. who handled all that? .I know Mr. Jones actually went down there, but who actually had the conversation with these people? I'd just like to know. with what people? The people at ADEM and the people over there at EPA. I don't know. How was that handled? I don't know. Because my clients have no idea how it worked. Nor do I. Now, tell me if you would if there was any public involvement at all in that initial meeting between Mr. Jones and whoever it was at ADEM and whoever it 1 was over there at EPA. 2 A. By public you mean residents of 3 Anniston? 4 Q. Absolutely, neighbors. 5 A. 6 Q. 7 I don't know if there was or wasn't. Do you know of one single solitary neighbor who knew anything about that 8 permit change -- 9 A. I don't know. 10 Q. --at the time it occurred? I'm not 11 talking about when the permit went 12 public, when everything went public. 13 I'm talking about when that occurred. * 14 A. I don't know of any. IS Q. Do you know of anybody as you sit here 16 today. Dr. Kaley, who knew anything 17 about what you were going to do on the 18 west end landfill? 19 A. I don't know of anybody. 20 Q. So isn't it fair to say. Dr. Kaley, that 21 the people who were there at the meeting 22 when all of that was decided was 23 Monsanto representatives and folks from REGIONAL REPORTING SERVICE, INC. " 279 REGIONAL REPORTING SERVICE, INC. 280 1 2 A. 3 4 5 6 7 Q. B 9 A. 10 Q. 11 12 A. 13 14 0. 15 16 A. 17 18 19 Q. 20 21 A. 22 23 Q. ADEM and perhaps EPA and perhaps ATSDR? I don't know. I don't know who was or wasn't there. I don't know if there even was a meeting where it was all decided. I'm sure it was an ongoing process. Were there ever any members of the neighborhood there? I don't know. Well, who would know about that? wasn't Jack Mayausky there at that time? I don't know. I don't remember who was - Wasn't a woman named Jo Hanson there at that time? She may have been. She was there. She may have been working at the site at that time. Wasn't Mr. Michael Foresman involved at that time? He was remediation director at the time. I don't know what involvement he had. Wouldn't a fair assessment of that DEVSTnkTaT. DUDnPTTMn C B*DVT TMr 1 2 3 4 5 A. 6 7 8 9 10 11 Q. 12 13 14 15 16 A. 17 18 19 Q. 20 21 A. 22 Q. 23 situation be the deal was cut before the public knew a single thing about what y'all were going to do out there? MR. KELLY: Object to the form. There was not a deal that was cut. It was our response to deal with a situation that was brought to our attention and to deal with the appropriate regulators to handle that situation. And just ignore those people that lived in Cobbtown, Sweet Valley, west of the plant, north of the plant, in an area about a mile around there? MR. KELLY: Object to the form. we undertook a process in which they eventually had the opportunity to comment on those undertakings. What testing did you do initially on any residential properties, Dr. Kaley? I don't know what initially means. At the time you first began to do any remediation out there, what testing did pr:Tr>NaT. oeonoTTMn cppvTnf tnp WATER PCB-SD0000006016 281 1 2 A. 3 4 5 Q. 7 8 9 A. 10 Q. 11 12 A. 13 14 Q. 15 A. 16 17 18 Q. 19 20 21 22 A. 23 Q. you do all on residential properties? I mean certainly we instigated some at some point. 1 don't know the exact time frame vis-a-vis whatever it is you may be talking about. I'm talking about when you initially began work out there on this particular project. On the west end landfill cover? On -- That's the first project, wasn't it? It probably was. I don' t know. There was ongoing sampling. In connection with the south landfill? I mean, the south landfill was part of a bigger project to deal with drainage issues on the site. Really that wasn't to deal with PCBs. That was to deal with parathion, wasn't it? MR. KELLY: Object to the form. Somehow we have lost each other. Well, you indicated that y'all did a REGIONAL REPORTING SERVICE, INC. 283 1 A. 2 3 4 5 6 7 Q. B 9' 10 11 A. 12 Q. 13 A. 14 Q. 15 16 A. 17 Q. 18 19 A. 20 21 22 . 23 Q. In my understanding of the issue, he would be wrong. One of us is -- I mean, if that is what he said, fine. But my understanding was that it was to deal with PCB impacted soils on that portion of the south landfill. Well, where are the PCBs buried over there on that portion of the south landfill, the east or west side of that landfill? Primarily east. Primarily what? East. Well, that is covered by clay and vegetation, isn't it? It is my understanding, yea. . And the synthetic membrane is over the parathion cells, isn't it? It is over those cells, but it is over where PCB impacted soils were detected on the surface. That is why the remediation was done. So you mean you had PCBs all over that nnnAnniTtnx ***** 282 1 2 3 4 A. 5 Q. 6 7 A. 8 Q. 9 A. 10 11 Q. 12 13 14 15 A. 16 17 18 19 Q. 20 A. 21 Q. 22 23 project on the south landfill after you did the project on the west landfill, a capping on the -That's correct. Built a berm up there to take water from around that thing? That's correct. And piped it under the ground? Well, we piped it above the ground and then buried the pipes, but, yes. And as a practical matter, the capping over there was done for purposes of keeping parathion from migrating off that landfill? No, that is incorrect, it was done to deal with PCB impacted soils that had been detected on that portion of the landfill. So that is exactly what you did it for? Yes, sir. So if Mr. Brown said you did you it for off migration of parathion, he would be wrong? REGIONAL REPORTING SERVICE, INC. 284 1 2 3 4 A. 5 6 7 8 9 10 11 12 Q. 13 14 15 A. 16 17 18 19 20 21 22 Q. 23 western portion of that landfill, and yet they were buried on the east, where did it come from? Well, number one, I don't know that the interpretation of "all over* is correct. and I don't know the answer as to particularly where they came from. All we know is when we did our sampling on the landfill, that is where PCB impacted soils were detected, and that is where we implemented the cover project. And that was not -- didn't have a thing to do with parathion? And if Mr. Brown aaid it did, he is just wrong? Well, it may very well have been on the cells that were primarily parathion disposal cells, but it wasn't done to effect or control potential parathion release from those cells. It was done to deal with the PCB impacted soils on those ceils. Would you admit as you sit here today, Dr. Kaley, that if someone buried PCBs nff^Tn%T omnnw r **/"> effowrnff ***** WATER PCB-SD0000006017 265 1 2 3 4 5 6 A. 7 Q. 8 9 10 11 12 13 A. 14 15 Q. 16 17 18 19 A. 20 21 22 23 or parathion or left it outside the confines of that fence that encloses your landfill, that that would be a violation of federal law? MR. KELLY: Object to the form. I don't know. In other words, you are telling me that if Monsanto knew that they had a toxic substance like pure parathion or PCBs buried outside the confines of those cells in that landfill, they wouldn't be violating federal law? Probably not. I don't know what federal law they would be violating. You mean there is no rule or regulation or law that says if you have a regulated landfill by the federal government, you can just bury it anywhere on your site? No, it doesn't say that at all. But I don't know the regulations very well except with regard to PCBs. But if there are PCBs in the ground in a site that was there prior to 1978 or 1976 REGIONAL REPORTING SERVICE, INC. 287 1 2 3 A. 4 5 Q. 6 7 8 9 10 11 12 13 14 15 16 A. 17 18 19 20 Q. 21 A. 22 23 leave it, not do anything with it? MR. KELLY: Object to the form. Absolutely not. It is entirely consistent with federal law. Okay. In other words, you are telling me as you sit here today that if you know for a fact that substance is regulated by the federal government, is stuck out beyond -- left by you, out beyond the confines of your landfill. when you are going through a remediation process, that that is perfectly all right to leave it there? Is that what you are telling me? MR. KELLY: Object to the form. No. Number one, you have completely lost me in your hypothetical. So 1 don't know what we are talking about any more. Let me try to clarify it. There is a difference in being in violation of federal law and being perfectly okay also. So I'm kind of DprsTnMar. DPoriO'TTMi's eroxrrnv. rwr 1 296 1 2 3 4 Q. 5 6 7 9 9 A. 10 11 Q. 12 13 14 15 16 A. 17 18 Q. 19 20 21 22 23 then, you know, it is not against federal law to leave those materials in the ground. Let's say you took them and dug them up and buried them beyond the berm up there, isn't that beyond the confines of where the cells are? MR. KELLY: Object to the form. I don't know what you are talking about. I can't answer that question. If you had a barrel of PCBs and you buried it beyond the berm and outside the confines of what is fenced in there, dug it up and buried it, isn't that a violation of federal law? Today, yes. MR. KELLY: Object to the form. And, Dr. Kaley, isn't it a violation of federal law if you find it in the process of digging it up, find a toxic substance that is governed by federal law, regulated by federal law as to where you put it, and just cap it and REGIONAL REPORTING SERVICE, INC. 288 1 2 Q. 3 4 5 A. 6 7 Q. 8 A. 9 Q. 10 11 12 13 14 A. 15 Q. 16 17 18 19 A. 20 21 22 23 lost, frankly. Let's say you are remediating a piece of property, trying to clean it up under federal law, and you find a substance - I don't even know what that means, trying to clean it up under federal law. Let's say it is - I mean, we are subject to - It is a RCRA or Superfund site that you are having to deem up, that you are under a consent order to clean up, to take corrective measures, whether it is the state or federal government. Okay. And you lie about substances that you are supposed to be cleaning up, just cover it up, don't tell the government about it. Mr. Stewart, I don't know what you are talking about. You have completely lost me. Do you have a particular situation you are thinking of that you could describe to me so I could understand -- pcrsTOMat. pppnpTTNrt sppvTrr? r>ar WATER PCB-SD0000006018 289 1 Q. 2 3 A. 4 5 Q. 6 7 S 9 10 11 12 Q. 13 A. 14 15 16 17 18 Q. 19 20 21 22 23 A. I'm just asking you do you not know environmental regulations, Dr. Kaley? I know the environmental regulations with disposal of PCBs. If you are under a consent order to clean aomething up and you don't do it. You know it is there. You know it is a violation of that order to leave it there, and you just leave it there -- MR. KELLY: Object to the form, speculation, no foundation. -- isn't that a violation of the law? Under the hypothetical you are doing, it may be a violation of the consent order. I don't know whether it is or not. Frankly I'm having trouble visualizing what it is you are asking me to say. Tell me what you know. Dr. Kaley, about the trip that was made to Washington to finalize the remediation at this plant site. MR. KELLY: Object to the form. There was no trip made to Washington to REGIONAL REPORTING SERVICE, INC. 291 1 2 3 4 5 6 7 Q. B 9 A. 10 11 12 Q. 13 A. 14 15 16 17 18 Q. 19 20 21 A. 22 23 Q. not because Dick Green has had some health problems. I don't recall whether Dick was particularly at that meeting or not. It may have been Dick Green, or it may have been on of his associates. I don't remember specifically. Well, who else was there for -- at the Washington level? At the Washington level, I believe the only person there at the Washington was the Department of Justice lawyer. What was the purpose of that discussion? To begin discussion of terms for a potential consent order to come to the final efforts to remediate the areas that are currently being handled under EPA CERCLA authority. Did y'all arrive at an agreement in principle? Mr. Branchfield said y'all arrived at an agreement in principle. I believe that's correct. I believe we arrived at an agreement in principle. What are those? * 290 1 2 3 4 5 6 7 Q. 8 9 10 A. 11 12 13 14 Q. 15 A. 16 Q. 17 A. 18 19 20 21 22 Q. 23 A. finalize the remediation of this plant site. We are nowhere near finalizing the remediation of this plant site, and that would be done under the auspices of ADEM and not anybody in Washington anyway. Have you been to Washington anytime recently with Glen Ruskin to meet people at the EPA? I don't know what recently means. I have been to Washington in the company of Glen Ruskin, and we have met with people at EPA. who? who did we meet with? Yeah. We met with a DOJ lawyer. We met with -- I believe there were a couple of lawyers from Region Four in Atlanta, and I believe there were some administrative people from Region Four in Atlanta. Who was that? I don't know if Dick Green was there or REGIONAL REPORTING SERVICE, INC. 292 1 A. 2 Q. 3 A. 4 5 6 Q. 7 A. 8 9 10 11 Q. 12 A. 13 14 Q. 15 16 A. 17 IB 19 20 21 Q. 22 23 A. Pardon? What is your agreement? That we would undertake an RFI process at the plant site, that a risk assessment would be done, primarily. What about the residential area? That's dealing with the residential areas. We are dealing with the areas that are covered under the CERCLA -- the EPA CERCLA authority. What are you going to be doing? I don't know. We have not gotten to that stage of the process yet. What do you mean, you haven't gotten to that stage of the process? I mean exactly what I said. That will take the development of an RFI work plan or an RI/FS or whatever they call it under RCRA, and have not undertaken the discussions to initiate that program. When you say you have an agreement in principle, what is that? We have an agreement that we will work WATER PCB-SD0000006019 293 1 2 3 Q. 4 5 A. 7 8 9 10 Q. 11 12 A. 13 14 15 16 17 IB 19 Q. 20 21 A. 22 23 Q. towards a consent decree to develop that program. Hell, what parts of that program are y'all in the process of developing? Hell, what kinds of sampling is going to be necessary, what the risk assessment is going to look like, the extent of the sampling, the materials that are going to be sampled for, a number of things. What materials are you going to be sampling for? We have not determined that. We are -It is in the very early stage of development. We have nothing more -very much more than an agreement in principle to move forward in the process. But we do have an agreement to move forward in the process. And who is it that met with you from the Justice Department? I think the guy's name was Bill Weinischke or something like that. Weinischke? REGIONAL REPORTING SERVICE, INC. 295 1 2 3 4 Q. 5 A. 6 7 8 9 10 Q. 11 12 13 A. 14 IS 16 17 18 19 Q. 20 A. 21 22 23 for the areas under which the EPA has taken authority under their CERCLA authority. ' What is the area that will be covered? Primarily the residential areas that are addressed in the orders and consent that we are currently operating under and whatever else EPA may determine to add. I guess. And exactly what are the principles that are going to govern this risk assessment? I don't know specifically. They are the principles that are going to govern any risk assessment I would assume. A risk assessment will be performed in accordance with federal guidelines on how to do risk assessments. who is going to be doing that? I don't know that it has been determined. I think we have asked that Solutia or its contractors be allowed to do that with EPA oversight. BwnTnxTftT. ffBOPTTKK CPBUTfT twp 294 1 A. 2 Q. 3 4 5 6 A. 7 Q. 8 A. 9 10 Q. 11 12 13 A. 14 15 16 17 Q. 18 19 20 A. 21 22 23 Something like that. So y'all have agreed with Mr. Weinischke on behalf of the government. Now, did anybody come in there from the EPA director's office? The Washington EPA? Yeah. I don't believe -- My recollection is it was Region Four people. I don't know. Well, why is it you met in Washington? Why didn't you just meet in Atlanta? That is where all of them are. I don't know. I don't know. That is where Mr. Weinischke wanted to have the meeting. I don't know the answer to that. So you have agreed in principle to move forward to work out an agreement. Is that basically what you are telling me? We have agreed in principle to try to agree on terms of a consent decree to finalize the RFI process or the RI/FS process, whichever it is, under CERCLA REGIONAL REPORTING SERVICE, INC. 296 1 Q. 2 A. 3 Q. 4 5 A. 6 Q. 7 8 9 A. 10 11 12 13 Q. 14 A. 15 Q. 16 17 A. IB Q. 19 A. 20 Q. 21 22 23 A. The risk assessment? Sure. It is common procedure. Okay. Now, Mr. Ruskin is involved in government relations, is he not? Yes. And you all have somebody in Montgomery who does the very same thing, do you not? I don't -- I mean, I don't know whether we have anybody in Montgomery that does the very same thing that Mr. Ruskin does, no. Do you know a David Robertson? I know the name. Didn't he used to audit the plant site there in Anniston? I don't know. Didn't he used to work for ADEM? I don't know. Who is it that worked for Monsanto that now serves as an administrative assistant to Ms. Whitten? Used to work for Monsanto? Linda . RRGTONAT. REPORTING SERVICE. INC. WATER PCB-SD0000006020 297 1 2 Q. 3 A. 4 5 6 Q. 7 A. 8 9 Q. 10 A. 11 Q. 12 13 A. 14 0. 15 A. 16 17 Q. 18 A. 19 20 21 22 23 Q. Fisher. Okay. She is more than am administrative assistant:. I don't know what she exactly is, but -Deputy administrator? Something like that. I don't know exactly. Pretty high position? Fairly high. What did she do before she-took that position? Which position? The deputy administrator for EPA. She had some position in Monsanto's Washington office. Just sort of moved over? Well, I don't know that she just sort of moved over. She had an opportunity to work for the government, and that is what she thought her career path ought to be. Did she assist y'all in getting the REGIONAL REPORTING SERVICE, INC- 299 1 2 3 A. 4 5 6 Q. 7 e 9 A. 10 11 12 13 Q. 14 15 A. 16 17 Q. 18 19 A. 20 Q. 21 22 A. 23 president of the United States? MR. KELLY: Object to the form. I have no idea what she --Mr. Stewart, I have told you I don't know what she does or did. Okay. But she is in the government relations office for Monsanto in Washington? She was in the Monsanto Washington office. There are more than government relations people in there. So I don't know what she did. what did she do before she went with Monsanto? I believe she was employed by the US EPA. So she left the EPA. position with EPA? And what was her I don't recall. So she left EPA and went to work for Monsanto? Well, she was released from EPA at the change of administrations and took a 1 296 1 2 A. 3 Q. 4 5 A. 6 7 8 9 10 Q. 11 A. 12 Q. 13 A. 14 Q. 15 16 A. 17 Q. 18 19 20 A. 21 Q. 22 23 meeting with Mr. Weinischke? I don't know. Well, didn't Mr. Ruskin used to be her boss? Heavens no, no. She always worked for Monsanto. Mr. Ruskin has always worked for Solutia. He was hired by Solutia. He has had --as far as I know has no relationship with Ms. Fisher. Doesn't know her? He might know her. Might be acquainted with her? May be, may not be. I don't know. What did she do in the Monsanto office in Washington? I don't know. Was she in government relations like Mr. Ruskin is, a lobbyist like he is for Solutia? I don't know. Handle PAC money and stuff like that and hand out contributions at fund raisers for senators and congressmen and the REGIONAL REPORTING SERVICE, INC. 300 1 2 Q. 3 4 5 A. 6 7 8 9 10 11 Q. 12 13 A. 14 Q. 15 16 A. 17 Q. 18 19 A. 20 Q. 21 22 23 position with Monsanto. Yeah. Right. And now she has gone back and she is working for EPA again as a deputy administrator? Or whatever her position is. You're -- If that is what her position is and you -- I'm not testifying that she is a deputy administrator, whatever she is, she is working for the EPA, that's correct Was she involved in enforcement when she initially worked with EPA? I don't know. How many former employees of Monsanto work with the EPA now? I have no idea. How many would have -- former EPA people now work for Monsanto? I have no idea. - 1 assume the revolving door spins pretty good. I just was trying to find out how much. MR. KELLY: Object to the form, no nr>nfAMT pbbvtap *<*' WATER PCB-SD0000006021 301 1 2 Q. 3 A. 4 5 6 Q. 7 6 9 10 11 12 A. 13 14 Q. 15 16 17 18 19 A. 20 Q. 21 A. 22 Q. 23 ' foundation. who would have that Information? I doubt if anyone knows that. I doubt if it is anything anybody keeps records on. Is it a pattern and practice for you all to put somebody in charge of a site who has no idea whatsoever about contaminants that were released on a site? MR. KELLY: Object to the form. I have no idea what you are talking about. Well, let me just ask if you if you in fact have made certain statements to the press in Anniston about a mercury release. Have you ever said anything about that? Have I? Yeah. Yes, sir. Did you have any dealings with an outfit called bb&l? REGIONAL REPORTING SERVICE, INC. 303 1 A. 2 3 4 5 6 7 B 9v 10 Q. 11 12 13 14 15 16 17 18 19 20 21 22 23 A. I don't know what David may have heard or not heard. I would have said and have said to the newspapers in Anniston that I believe the characterization of that process as a closed process with respect to mercury is a correct characterization but that there were probably releases of mercury from that process. Well, if Mr. Cain said that he was going to write to The Anniston Star and sav that there were -- and the person who wrote this story -- I think an Elizabeth Bluemink -- that she was incorrect in saying there were forty to fifty tons of mercury that went into the Anniston waste stream because of representations that you made to him, are you saying that you didn' t make those representations? I'm trying to figure out where Mr. Cain got that information. He told me that he got it from you. Well, you heard what I just said and wnmuzr. ppono'rriiv: CFDVTn* rwr 302 1 A. 2 Q. 3 A. 4 Q. 5 A. 6 7 Q. 8 9 10 11 A. 12 Q. 13 14 15 A. 16 Q. 17 A. 18 Q. 19 20 21 22 23 Yes. Did you get the information up for BB&L? No. Where did that come from? I'm not sure I know. Well, I don't know. You don't have any idea where BB&L got the information about the mercury that was used in the chlorine production there at the Anniston plant? No, I don't. Did you tell David Cain that there was no mercury released at the Anniston plant? I'm sure I didn't. Sir? I don't believe I did, no. So if he testified under oath that you told him that the mercury that was used in the chlorine production was part of a closed system and there were no releases whatsoever, are you saying here today that that didn't come from you? REGIONAL REPORTING SERVICE, INC. 3 04 1 2 3 4 5 Q. 6 7 8 9 10 11 12 A. 13 14 15 16 17 18 Q. 19 20 A. 21 22 23 what I have said to the newspaper and what I would have said to Mr. Cain. He may have misinterpreted it or misunderstood what I said. Is it a fair representation of what the consultants told ADEM that Monsanto used mercury but most likely did not release it to the environment because of what you just said earlier, this was a closed system in that production or manufacturing process? I think to a large extent that's true. There were certainly some releases. There is no question there were some releases, and I have said that in my comments to Ms. Bluemink and in my letter to the editor. what did you say in your letter to the editor? I'm sorry. I missed that. Pretty much what I just told you. I described the process and the fact there were areas where there were potential releases, but that the company was FirrnwM. FPOTTNn ffpvtcp TVP WATER PCB-SD0000006022 305 1 2 3 4 5 0. 6 7 8 9 A. 10 11 12 13 14 15 16 17 18 19 20 Q. 21 22 A. 23 making serious and concerted efforts to keep those losses to a minimum and continued to do that through the life of the process there. Did vou tell The Anniston Star that BB&L didn't obtain access to all of the relevant documents which were buried deep within the company? I may have said something like that. That seems like a quote out of the thing. I don't remember saying that to her. I didn't remember it when I read it in the newspaper, but the fact is that in the limited time they had available to them they did not obtain all of the standard manufacturing processes that Ms. Bluemink got from the plaintiffs' attorneys and that subsequently I got. Well, why wasn't BB&L given access to the documents, if you know? it wasn't that they weren't given access to it. It was that they had a limited REGIONAL REPORTING SERVICE, INC. 307 1 2 A. 3 4 5 6 Q. 7 8 9 A. 10 Q. 11 A. 12 Q. 13 14 15 16 17 A. 18 19 20 21 22 23 sampling? Well, they didn't miss them in the documents. Those documents were not turned over in the time they had to respond to those comments. Well, wasn't there somebody who reviewed this document for Monsanto before it was submitted to ADEM? I would presume so, yes. who would that have been? It may very well have been me. And you are telling me sitting here today. Dr. Kaley, that you missed the fact that there were mercury emissions from this plant in the '60s that you had documented in these records? All I can asy is at the time I probably reviewed that document I was not aware of the documents that were subsequently shown to me from the litigation. And it didn't strike me as out of line that those statements were made, and more importantly that, you know, we undertook Oi"Tj'W*T OpnAOTTM^ CVOTfTt^P TMO 306 1 time to respond to a twenty-six page 2 document. The RCRA process requires us 3 to be driven by the data. And the data .4 indicated that mercury in the Anniston 5 environment was not a problem, so they 6 spent less resources on that particular 7 question. Now, the most important thing B is that in lieu of that -- if you read 9 the ADEM statement that we were 10 responding to, they said if you cannot 11 provide information, then you have to do 12 additional sampling. And that is 13 exactly what we did. We did additional 14 sampling to characterize the potential 15 for mercury to be in the Anniston 16 environment. That is exactly what we 17 . did. 18 Q. Who did that sampling for you? 19 A. Presumably the people who have done most 20 of the sampling for us, either Genesis 21 Project or BB&L people. 22 Q. So BB&L missed the mercury releases in 23 the documents, but they did the REGIONAL REPORTING SERVICE, INC. 308 1 2 3 Q. 4 5 6 7 A. 8 9 10 11 Q. 12 A. 13 14 15 16 Q. 17 A. 18 19 Q. 20 21 A. 22 23 Q. the sampling that ADEM required us to do if we didn't provide tfre information. Now, are you disagreeing with Ms. Bluemink's statement that some fifty thousand pounds of mercury was released into the creek? I'm disagreeing with her statements that some fifty thousand pounds of liquid mercury were released into the creek. Absolutely, yes. what do you base that on? I base that on the fact that my understanding of where that number came from is a mischaracterization of the document that it is based on. What is that? It is a 1968 standard manufacturing process for Aroclor. You are saying that somebody just miscalculated? No. They misunderstand what that number was -- misinterpreted. That is what you mean. Somebody looked OMTriMiT. DPQriBTTMrt CEDVTf'V TMn WATER PCB-SD0000006023 309 1 2 3 4 A. 5 6 7 Q. 8 A. 9 Q. 10 A. 11 12 13 14 Q. 15 16 17 A. 18 19 20 21 22 23 at the manufacturing process and just made a mistake about the releases of mercury? I think they misunderstood the terms that were being used to describe the release, yes. where would that mercury have come from? Where would it have come from? Right. I don't understand. It was used as part of the process for manufacturing chlorine at the plant. Where it came from, it was purchased. No. what I'm saying, the releases, where would that have come from, from that chlorine process? Well, there were a number of streams. which is the term used, in which mercury could come. Some of it was in the product. Some was caught in drain traps and recycled into the process. There are a number of potential sources for that. REGIONAL REPORTING SERVICE, INC. 311 1 2 Q. 3 4 5 6 7 8 A. 9 10 11 Q. 12 13 14 15 16 17 A. 18 19 A. 20 21 22 23 been discharges. Wouldn't you have to admit that if you replaced the mercury and had to pay for it, then it went somewhere, didn't it? It certainly didn't stay in the manufacturing. MR. KELLY: Object to the form. I just explained that there were various potentials for mercury loss in that process. And y'all had the capability to pretty well gauge those losses based on what you had to continue to supply to the manufacturing process, either at Krumnrich or at Anniston, to replace that lost mercury? Certainly -- MR. KELLY: Object to the form. -- they knew how much they were replacing. MR. STEWART: Mark that as Thirty. (Plaintiffs' Exhibit Number Thirty was marked for nrnTrtTT nmv'W'i'TMn r nnirr nr? t\t^ m 310 1 Q. 2 3 4 5 A. 6 Q. 7 B 9 A. 10 11 12 13 14 15 Q. 16 A. 17 IB 19 20 21 22 23 Isn't it a fact. Dr. Kaley, that mercury was used in the chlorine production - or the production both at Krummrich and at the Anniston plant? Yes. And isn't it a fact that y'all have a pretty good capability of tracking the losses of mercury to the environment? We developed that pretty much after - Well, not of losses to the environment. I mean, there were certainly inventories of the mercury in the processes. But I don't know that we have the capability to track losses to the environment. Well, where did it go? That is what I was trying to explain. It went to -- Some of the losses they talked about was mercury that was entrained in product line. Some of the losses of mercury was mercury that was later recovered from sumps in the drainage ditches and returned to the process. Some of it may very well have REGIONAL REPORTING SERVICE, INC. 312 1 2 Q. 3 4 5 6 7 B 9 10 11 12 13 A. 14 15 Q. 16 17 A. IB 19 20 21 22 Q. 23 identification.) Now, this is a progress report dated 10-8-65, and it comes from a fellow named C. E. Woodward, who is a Monsanto employee. And it is addressed to people at Krummrich and Anniston, and it talks about mercury loss. Now, maybe I'm missing something, but it says y'all lost in that year about a hundred and nine thousand dollars worth of mercury or about fifteen thousand eight hundred and twenty pounds from those two plants. I see where you are saying a hundred and nine thousand, but where's the weight? Down at the bottom of the page on the right. Well, number one, this is Kruirmrich and not both plants. The problem was to determine mercury losses in the WGK denora chlorine facility. So 1 think this only applies to Krummrich. Look at the Anniston up there, over there on your right. It was sent to a OC'O/^O'T'TKirS CVD^fT/^T* TMC' WATER PCB-SD0000006024 313 1 2 A. 3 Q. 4 5 A. 6 Q. 7 A. 8 Q. 9 A. 10 11 12 Q. 13 A. 14 15 Q. 16 17 A. 18 19 20 21 22 23 Q. w. Voss who worked at that plant. Yes, 1C was sent Co him. Are you saying chis just deals with Krunmrich? Thac would be my reading, yes. From what? I'm sorry? From whac? Because it Calks abouc mercury loss sources in Che WGK denora chlorine faciliCy. I see. You are saying chis is jusc WGK? That is my reading of this document, yes. Weren'C Che processes jusc Che same ac both plants or facilities? They were in general Che same. As I sic here today I don't know that they were just the same. I haven't come to a conclusion on whether they were operated similarly, what the different sizes were or not. Okay. LeC me show you ThirCy-one, if I REGIONAL REPORTING SERVICE, INC. 315 1 2 3 4 5 6 7 8 9 Q. 10 11 12 13 14 A. 15 16 17 18 19 20 Q. 21 22 A. 23 ChaC closed system there are areas where small amounts or whatever amounts of mercury could be lost. But the process itself, it can be described as a closed process with respect to mercury because Che mercury did not cake part in the reaction and was recycled through the process. Okay. But as you went through Chat process, I reached back over here and got Exhibit Thirty, and it appears to me you are calking about Che same kind of process. I am Calking about the same kind of process. I said earlier that small amounts were entrained in various streams in that process and could account for a variety of losses. And that's what that is talking -Could account for fifteen thousand eight hundred twenty pounds a year? That's the number they give there. I would have to look at this carefully to DMTrtMJT. OPDT\BT T MT2 CTOWTPB TKIH 314 1 2 3 4 5 Q. 6 7 8 9 10 11 12 13 14 A. 15 16 17 18 19 20 Q. 21 22 A. 23 could. (Plaintiffs' Exhibit Number Thirty-one was marked for identification.) Now, this is dated 1967 and talks about mercury in the plant effluent to Snow Creek. It says in a meeting held January 5th, 1967, on methods to reduce the mercury content in the waste stream leaving the plant. Now, if it is a closed system and you don't lose it, how is it leaving the plant and getting in the creek? Mr. Stewart, the closed system is a general characterization. The mercury was sent from a pump tank to the denora cells. It was sent to deconqposers where it was deemed with sodium and sent back to the pump tank. So it is a process -Isn't that what he is taking about in this -It is a process in which mercury is recycled. As I said earlier, within REGIONAL REPORTING SERVICE, INC. 316 1 2 3 Q. 4 5 A. 6 Q. 7 A. 8 Q. 9 10 11 A. 12 13 Q. 14 A. 15 16 17 18 19 20 21 22 23 put it in context, but you are reading the number correctly. Hell, that appears to me that it wouldn't take you many years to -- Most of that -- -- reach -- Most of that -- -- what Ms. Bluemink is talking about. MR. KELLY: Let me obj ect to the form. But not all of that are losses to the environment. Where would it be going? Well, some of it -- the first one, for example, is with the sodium hydroxide from the decomposers. The mercury has some slight solubility in the product sodium hydroxide. So it continued to stay with the sodium hydroxide, which was marketed as a product. It had some low level of mercury in it, and that accounted for some of those losses. That was not a release to the . pprsTowat. PFPnpTTwrs ftFPVTrr! TNr* WATER PCB-SD0000006025 317 1 2 Q. 3 A. 4 Q. S 6 7 8 A. 9 10 Q. 11 A. 12 13 14 15 16 17 18 19 20 Q. 21 22 A. 23 Q. environment. Same thing for the second one? Yes. What about the rest of them? This says sewer water, vented hydrogen, result of lead dumps. That looks like it left the plant. Well, it says "load" dumps. And I don't know where -Load dumps, I'm sorry. I think -- I don't know where that is, and you know, that is one of the things that has to be determined. The sewer water presumably at Krummrich was probably going to the American Bottoms sewage treatment plant. What happened to it from there, I don't know at this point. Vented hydrogen was probably released to the atmosphere. Based on what I read, it went in the Mississippi after that. After it went to American Bottoms? Yes. REGIONAL REPORTING SERVICE, INC. 319 1 Q. 2 A. 3 Q. 4 5 6 7 8 A. 9 Q. 10 11 12 A. 13 Q. 14 15 16 17 18 A. 19 20 21 Q. 22 23 Isn't that what they did on the Hudson? It may be or may not be. I don't know. Are you sitting here today telling me that the biggest dredging project in the country you don't know whether or not they tested for PCBs in the water, did sun aqueous phase testing up there? I don't know. Do you have any idea about the average aqueous phase PCB concentration in Snow Creek? No. Do you know anything at all about what the lab that we have hired, the plaintiffs have hired, found in the aqueous phase tests they did, concentrations? I have not reviewed that data in detail at this point, no. I know it was done. I have not reviewed it in detail. If it is a hundred and fifty parts per trillion, how does that compare, if you know -- and you very well may not know 318 1 A. 2 3 4 5 Q. 6 7 8 9 10 11 12 A. 13 14 15 16 17 18 Q. 19 20 A. 21 22 Q. 23 A. I'm sure it did, but I don't know what happened to the mercury, whether it was retained in the sludge or disposed. I don't know. All right. Let me ask you what y'all plan to do about this creek and these common areas. what have y'all worked out with the EPA and ADEH about that? MR. KELLY: Object to the form. What locations? MR. STEWART: Snow Creek. We haven't worked out anything. We are in the process of doing a flood plain investigation. Based on that, the results of that investigation, we will propose either interim measures or final corrective measures for Snow Creek. Have you done any aqueous phase testing of that? I don't know if we have tested water or not. Wouldn't that be important? Not necessarily. REGIONAL REPORTING SERVICE, INC. 320 1 2 3 A. 4 5 6 7 8 9 10 Q. 11 12 A. 13 14 15 Q. 16 A. 17 18 Q. 19 20 21 A. 22 Q. 23 -- with what they have found in the upper reaches of the Hudson? I don't know. As I said, I don't know whether they did aqueous phase testing or not, so obviously I don't know how it compares. Nor do I know what the quality of those data are to compare it to. So I have not reviewed the data in detail. I really can't say -You don't know the quality of the data at Triangle Lab? Well, I do know the data -- the quality of Triangle Labs, unfortunately, but yes. How is that? I don't have very much respect for Triangle Labs. If Dr. Tucker didn't do it, you don't have a whole lot of respect for them? MR. KELLY: Object to the form. That is not true at all. But you don't have any idea as to how it compares with what was found on the WATER PCB-SD0000006026 321 1 2 A. 3 4 Q. 5 6 7 8 A. 9 10 11 12 Q. 13 A. 14 Q. 15 A. 16 17 18 19 20 Q. 2-1 22 23 A. HudBon? I just told you that. That's correct. As I sit here today, I do not. Is there any plans that you all have -We have looked at your budget. Are there any plans that you all have to dredge any portion of Snow Creek? we have not determined what our final remedial measures will be on Snow Creek. We haven't determined whether to dredge or not to dredge. We haven't determined, is that Monsanto? Solutia, yes. Or Solutia. Or what we would recommend to the agencies. That is obviously their final determination. They have a right to approve or disapprove our corrective measure study. Well, does that agreement in principle you talked about cover Snow Creek? Do y'all have that down pat? It does not cover Snow Creek. REGIONAL REPORTING SERVICE, INC. 323 1 2 Q. 3 A. 4 5 6 Q. 7 A. 8 9 10 11 12 13 Q. 14 15 A. 16 17 18 19 20 21 22 23 Q. know who is handling them. Mr. Smith -- Do you know who is involved? . -- and Mr. Branchfield will probably be the primary person. He is the remedial manager for the site. Who else is involved from the company? At that level probably -- I don't know -- Craig's supervisor, Mr. Felder may be as an advisory role, but on the details probably Craig and I will be the primary people working with the agency to develop those work plans. And then what happens to the general public? I assume they will have an appropriate opportunity to comment on those final corrective measures when they are developed plus whatever the EPA chooses to do. As I'm sure you are well aware. we are not allowed to talk to the public, so we cannot communicate our efforts to the public. Let me ask you about that. Is there '1 322 1 Q. 2 3 4 A. 5 Q. 6 A. 7 8 9 10 11 12 13 14 Q. 15 16 A. 17 Q. IB 19 A. 20 Q. 21 A. 22 Q. 23 A. Does the agreement in principle cover what you propose to do with this conservation corridor on - No. -- Choccolocco Creek? As I told you, the agreement in principle to work towards a consent decree is exactly that. It doesn't cover or not cover anything at this point because we haven't begun the negotiations to iron out the details of what that work plan is going to look like. where do y'all propose to do those negotiations? Where? Yeah. Are you going to do those in Washington? I haveno idea. what is the time frame for that? It has not been determined. who is handling the negotiations, you? I may very well be involved. I don't REGIONAL REPORTING SERVICE, INC. 324 1 2 3 4 5 6 7 8 A. 9 10 11 Q. 12 13 A. 14 15 16 17 18 19 Q. 20 21 22 23 A. some provision in there that the EPA is asking you for covered in Mr. Felder's notes where they said EPA and ADEM wanted you all to pay them some three and a half million dollars for costs they have incurred in overseeing this site? I'm sure there is a phrase in there that iB past cost. Yes, that is standard in CERCLA proceedings, every one. And they want you all to also pay the community some two million dollars? There is some financial -- Well, it is not pay the community. It's set up a foundation to address some convnunity issues. There are some discussions around the potential for doing that, yes. Okay. And what are those community issues that you all plan to address? It is certainly not contamination. Beyond that -I don't know. WATER PCB-SD0000006027 325 1 Q. 2 3 A. 4 5 6 Q. 7 A. 6 Q. 9 A. 10 Q. 11 A. 12 13 14 15 Q. 16 17 18 19 A. 20 21 _ 22 23 Q. -- what do y'all plan to -MR. KELLY: Object to the form. I don't know that it has been addressed at that point. I think it has to do with education primarily. Who is going to administer that? That has not been determined. Who have you been talking to about that? Just the EPA as far as I know. Just the EPA? Yes. We have not -- All we have is an agreement in principle. We have not moved forward in implementing any of the phases of that particular agreement. So the EPA has asked y'all to take a look at a two million dollar payment for to the community for educational purposes? Well, it is not a payment to the community. It is the establishment of a fund to address issues which I believe focus on education in the community. So you are going to leave millions of REGIONAL REPORTING SERVICE, INC. 327 1 A. 2 3 Q. 4 5 6 A. 7 8 Q. 9 10 11 A. 12 Q. 13 14 15 A. 16 17 18 19 20 Q. 21 22 23 I don't know what difference you are talking about. Are they not dredging to remove the PCBs from the Hudson? Didn't the EPA announce they would do that? That is what they've said they are going to try to do, yes. Isn't that what the governor of that state indicated that they are going to do? I believe that is his desire, yes. And isn't that what is being done at Sauget? Isn't a portion of Dead Creek being dredged? Sediments are being removed. They had PCBs in them. That is not necessarily the driver for the removal. But some sediments are being removed, yes, under EPA concern. But you have no intention of treating these people here in Anniston like the folks are being treated in New York or like the folks are being treated in ocrT^mr opnAOT'TiTn eroirms tut/** 326 1 2 3 4 5 A. 6 7 8 A. 9 10 11 12 13 14 15 Q. 16 17 18 19 20 21 22 23 pounds of PCBs, not clean up Snow Creek, not clean up Choccolocco Creek, not do the things that you all indicate that should be done -We are going to do everything -- MR. KELLY: Object to the form, no foundation. We are going to do everything that should be done in compliance with regulatory authority and in compliance with the corrective measure studies. which the public will have every opportunity to comment on to address any of the issues you just mentioned. Tell me if you would. Dr. Kaley, what's the difference between the folks who live in Anniston and around this plant site and along Snow Creek or Choccolocco Creek and the folks that either live on the Hudson or fish in the Hudson or who live around your plant in Sauget. MR. KELLY: Object to the form, speculation, no foundation. REGIONAL REPORTING SERVICE, INC. 326 1 Illinois? 2 MR. KELLY: Object to the form. 3 A. We have every intention of designing an 4 appropriate remedy for the areas you 5 mentioned. 6 Q. Because really, to sum it all up, you 7 all have never really cared about your 8 neighbors either in 'SO or '55 or '71 or 9 ' 10 '83 or '85 or '93 or even today as we sit here. What you're really concerned 11 about is getting out of this community 12 just as cheaply as you possibly can,- is 13 that right. Dr. Kaley? 14 MR. KELLY: Object to the form. 15 A. That is absolutely erroneous. 16 Q. And that is why you got Dr. Woodyard to 17 say in his supplemental report that what 18 he would do is not dig up that landfill 19 and move it out of that community. 20 Isn't that what he said? 21 MR. KELLY: Object to the form. 22 A. I have not -- I haven't read 23 Mr. Woodyard's report. ocr^TnxraT. woadttmt's epewtre tvtr WATER PCB-SD0000006028 329 1 Q. 2 A. 3 4 S 7 Q. 8 9 10 11 12 13 A. 14 Q. IS 16 17 A. 18 19 20 21 22 Q. 23 Isn't that what he said? I have not read his report. He probably said something like that because I believe that is the appropriate action. is to be sure those landfills are secure. Well, why do you think it would be wrong to dig that landfill up and move it out when that is exactly what y'all were doing on that west end landfill when you started this project? MR. KELLY: Object to the form. That is absolutely incorrect. Didn't y'all take off about eight hundred thousand dollars worth of that soil over there and takes it to Emelle? Some of the soils, the surface soils. were removed. But we certainly did not dig up the landfill. Surface soils that were best bandied that way were removed. yes, under EPA and TOSCA regulations. According to Ms. Hanson, it got to be so expensive that Mr. Foresman hit the REGIONAL REPORTING SERVICE, INC. 331 1 2 A. 3 4 5 6 7 Q. 8 9 10 11 12 A. 13 Q. 14 15 16 17 A. 18 19 20 21 Q. 22 A. 23 MR. KELLY: Object to the form. Absolutely not. We intend to remain in town, and we intend to undertake appropriate remedial activities for PCBs associated with our former manufacturing operations in Anniston. Well, are you claiming responsibility now in these meetings in principle for the contamination that has occurred on those properties that are outside the drainage basin? No, we are not. So you are saying you are not responsible to the EPA and to ADEM and to anybody who will listen to those -- MR. KELLY: Object to the form. We believe there are other explanations for the presence of some of those PCBs on some of those properties. That's correct. Tell me what those are. I'm not sure we know. Some of them seem to clearly be associated with fill 330 1 .2 3 4 5 6 7 A. 8 9 Q. 10 11 12 A. 13 Q. 14 15 A. 16 17 18 19 20 21 Q. 22 23 roof, and old Bob Jones went sailing off down to Montgomery, and you were allowed to do something different there in Anniston than what's done elsewhere. didn't you? MR. KELLY: Object to the form. I have no idea what you are talking about. Well, that is what Jo Hanson indicated happened. MR. KELLY: Object to the form. I have no idea what -You don't have reason to disagree with her. She is an honeet person. Well, I don't know what happened. It may have been something like that. I. don't think we whizzed off or however you characterized it. But I'm certain we undertook an appropriate remedy on the west side landfill. So you all are counting on leaving town just as cheaply as you possibly can in Anniston? REGIONAL REPORTING SERVICE, INC. 332 1 2 Q. 3 A. 4 Q. 5 A. 6 7 Q. 8 9 A. 10 Q. 11 12 13 14 15 A. 16 17 18 19 20 Q. 21 22 23 A. material. Fill material? That's correct. From what? Foundry sand. Other things I don't think we know. You have no idea as you sit here today what that is or where it came from? That's in general correct, yes. what products do you know of as you sit here today were used in the manufacturing processes or the foundry processes in Anniston that contained PCBs. There are potentials for some PCBs used in casting waxes, but we have not established that those processes were used in Anniston. So the answer is we have no firm information. You in fact know, Dr. Kaley, that they were not used there. MR. KELLY: Object to the form. Clearly not. I don't know that at all. ow'tftMM BOonoTTHn tmp WATER PCB-SD0000006029 333 1 Q. 2 3 4 A. 5 6 Q. 7 8 A. 9 Q. 10 11 A. 12 Q. 13 14 15 A. 16 17 18 19 20 21 Q. 22 23 A. Did you check with any foundry people and ask them if they used that in, those waxes? I don't know that we made those efforts. I certainly haven't. Well, don't you have a right to pull in somebody elBe if they did? Certainly we have that right. Have you joined anybody else as a responsibility party? We have not. Isn't that because you don't have a factual basis to do so? MR. KELLY: "object to the form. I think I told you we don't have any specific knowledge of any other alternative sources at this point, but clearly the materials in some of those areas are associated with fill material and not with drainage from our facility. And is there any scientific basis for your making that statement? Yes, some. REGIONAL REPORTING SERVICE, INC. 335 1 Q. 2 3 A. 4 5 6 7 Q. 8 9 A. 10 Q. 11 A. 12 Q. 13 14 15 16 17 18 19 20 21 22 A. 23 Q. Who is it that is doing that? Are they -I don't know that anybody is doing that officially. Mike Price is making observations. Other people have made observations. Anybody else? Is Mr. Rogero making those same observations? I don't know who that is. A gentleman who works with Mr. Price. I will take your word for that. Have y'all ever falsified data and written letters to the EPA on the basis of that data indicating to them -- not EPA, but ADEM -- indicating to them that the contamination on the residential properties in this area is not as widespread as the plaintiffs have indicated it is? MR. KELLY: Object to the form, no foundation. We have never falsified any data. Is that correct, y'all never falsified 334 1 Q. 2 A. 3 4 Q. 5 A. 7 8 9 10 11 12 Q. 13 A. 14 15 16 Q. 17 18 19 20 21 A. 22 23 what? Primarily the profiles of the PCBs found in some of those materials. Give me that information. Well, primarily the areaswhere --The areas associated with our drainage primarily have Aroolor 1254 and Aroclor 1260 residues. The areas associated with what appears to be fill material primarily have Aroclor 1268 type residues. Okay. Plus just the visual observation of the material. It iB not native soil in many cases. Just eyeball it? You havesomebody on your group doing work that can just eyeball something and say that is fill material? MR. KELLY: Object to the form. Mr. Stewart, I'm sure you could go that. Anybody could do that. You can tell red clay from black sand I believe. REGIONAL REPORTING SERVICE, INC. 336 1 2 A. 3 Q. 4 5 6 7 A. 8 9 10 Q. 11 A. 12 Q. 13 14 A 15 Q. 16 17 A. 18 19 Q. 20 21 22 23 data? That's absolutely correct. Who did y'all use to take the tests of the mobile lab to do the testing out there on the properties that were owned by the plaintiffs last year? I believe Mike Price did the sampling. I don't know who - - what firm ran the labs. Who put the mobile lab out there? Who put it out there? Yeah, who owned the mobile lab that did the analysis? I don't know. who ultimately wound up doing those tests? I'm not sure I know what you mean nor the answer to the question. I mean -There was an analysis done of the soil samples that were taken off the properties initially, as I understand it, by a mobile lab. That process was discontinued at some point in time, .and rusnTniTaY nmrvMMST^tn nt?i5TT WATER PCB-SD0000006030 337 1 2 3 A. 4 5 Q. 7 8 9 10 A. 11 Q. 12 13 14 A. 15 Q. 16 A. 17 Q. 18 19 A. 20 21 Q. 22 23 Chose tests or samples, rather, were sent for analysis to Savannah. That may very wel1 be. I don't remember the details of that situation. So you don't know who the lab was, the mobile lab that did the work, and you don't know why they were sent to Savannah as opposed to left at the mobile lab? Not specifically, no. Which results did you rely on in writing your letter to either EPA or ADEM or both? I don't recall. I don't know, frankly. Well, who drafted the letter? I did. And you don't remember what results you used? No. As I sit here today, I don't know which results I used, no. Could you have used the results that were generated by the mobile lab, Dr. Kaley? REGIONAL REPORTING SERVICE, INC. 339 1 A. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 I will go back and make an investigation. And if it turns out that I have reported data that has since been shown to be erroneous, I will certainly correct it. You bet. Absolutely. I was unaware of your concerns about that data. MR. STEWART: Let me take a look at something here and take a little short break. We may be through. (A break was taken.) MR. STEWART: I'm through. Pass the witness. MR. KELLY: I have no questions at this time. (The deposition concluded at 4:30 p.m.) 338 1 A. 2 Q. 3 4 5 6 7 a A. 9 10 11 12 13 14 15 16 17 18 19 20 21 Q. 22 A. 23 Q. I suppose I could have. I don't know. If you used those results and that turns out to be a misrepresentation of what was found, wouldn't that not be the very same thing if you relied on them? Let's just say it did not accurately portray what was found on the property. Well -- Okay. There is a lot of difference between a lab not accurately portraying and misrepresenting something or falsifying data. And I don't know the situation. I will certainly find out. But I don't -- whether they were doing accurate analyses or not is a long way from the insinuations you were making. Okay. So in the first place, if I relied on data that turned out later to be inaccurate, I don't realize that as I sit here -Do you plan to correct that? Pardon? Do you plan to correct that? REGIONAL REPORTING SERVICE, INC. 340 1 I do hereby certify that the witness 2 whose attached deposition was taken before me 3 was by me first duly cautioned and sworn to 4 tell nothing but the truth in the cause 5 aforesaid; that the testimony contained herein 6 was by me reduced to writing in the presence 7 of said witnesses by means of stenography and 8 afterwards transcribed by means of computer 9 aided transcription. The foregoing is a true 10 and accurate transcript of the whole of the 11 testimony given by said witness, as aforesaid. 12 I do further certify that I am not 13 connected by blood or marriage with any of the 14 parties or their attorneys or agents and that 15 I am not an employee of any of them, nor 16 interested in the matter of controversy. 17 IN WITNESS WHEREOF, I have hereunto set 18 my hand and affixed my notarial seal at 19 Oadsden, Alabama, County of Etowah, thiB 29th 20 day of August 2001. 21 Deborah saiers Garrett : 22 Certified Shorthand Reporter Registered Professional Reporter 23 Notary Public, Alabama-at-Large My Commission expires: 3-6-05 nn^TAmt nnnAnmTiw' rinnfTw rim WATER PCB-SD0000006031